[Q&A: Family Law] I Am Not Living in Japan. Can I File for Divorce in Japan? If Can, What Should I Know about Japanese Divorce Law and Its Proceedings?

Q) I wish to file for divorce with my wife. Our relationship ended last year and she returned to Japan. We were married in Japan. I wonder how I can file for divorce as I am living in the U.S and she is in Japan. She is not cooperative and said she didn’t want a divorce, which seems nonsense to me. I tried to file for divorce here but the court said they don’t have jurisdiction over the foreigner living in Japan.

Jurisdiction

At the outset, as your wife lives in Japan, you can file for divorce at the Japanese Family Court. The Japanese Family Court has jurisdiction over your divorce and will hear your divorce claim. Even if your wife does not have Japanese nationality, it is still the same. But you probably need to hire a Japanese licensed attorney who can represent you at the court, as you are not living in Japan.

Governing Law

The next issue will be which country’s divorce law shall govern your case, in case you both have different nationalities. If your wife is a Japanese who has a habitual residence in Japan, the Japanese divorce law shall apply. If that is not the case, the governing law shall be determined in the following order:

(a)　the law of the common nation of both spouses;

(b)　the law of the common habitual residence of both spouses; or

When the Japanese divorce law becomes the governing law and your spouse contests the divorce, you have to successfully establish your divorce claim with some types of justifiable causes for divorce. The Japanese law provides justifiable causes as follows:

(a)　if a spouse has committed an act of unchastity;

(b)　if abandoned by a spouse in bad faith;

(d)　if a spouse is suffering from severe mental illness and there is no prospect of recovery; or

(e)　if there is any other grave cause making it difficult to continue the marriage.

Of course, if your wife does not object to your divorce claim, the judge will grant the divorce without questioning the existence of justifiable divorce grounds.

Division of Marital Assets

Also, you have to think about the issue of property division before filing for divorce in Japan. The properties acquired during the marital relationship become the asset to be distributed. Assets obtained before the marriage is, in principle, not the subject. But it is not always easy to decide which property is included and which one is not. So you need to consult with a competent divorce lawyer with respect to the financial aspect and impact of the potential divorce.

Child Custody, Child Support & Visitation

If you have a child, you must consider the issue of child custody and child support. When the parties cannot make an agreement, the court will decide who shall have the custody. The rule of thumb here is the best interest of the child. The party who is not designated as a custody holder shall pay the monthly child support. The amount shall be determined by the court considering the age and living standard of the child and the financial capabilities of both parties.

No Alimony

Interestingly, there is no concept of alimony under Japanese divorce law. So the spouse is relieved from the burden of supporting his spouse when the divorce is finalized.

Consolation Money

Lastly, if it turns out the other spouse is responsible for the marriage breakdown, you are entitled to monetary compensation for your emotional distress caused by the other spouse.

Recognition of Japanese Divorce Decree in Your Home Country

Divorce decree from the Japanse court is being recognized and valid in many foreign countries. For example, US state courts accord and recognize Japanese divorce decrees under the legal concept of comity. Some state might require additional procedure to make the foreign divorce decree fully effective domestically. So, it is a good idea to consult a domestic lawyer.

Divorce by Agreement (Kyogi Rikon)

Unlike the U.S., Japanese law acknowledges a nonjudical divorce called Kyogi Rikon. This is a divorce by mutual agreement. The parties sign a divorce paper and one spouse can legally finalize the divorce by submitting the paper to the local ward office, not a court. A foreigner can consider this process when his/her spouse is a Japanese national residing in Japan.

Many online Japanese articles explain that Kyogi Rikon is not recognized in the US as the US legal system doesn’t allow nonjudicial divorce. However, that is misleading and should be understood as an advice to minimized any legal risk of invalidity of Japanese divorce in the US.

Generally speaking, if at least one spouse is domiciled within the foreign jurisdiction, i.e. Japan, and the divorce is valid under that foreign law, and the divorce is not against the public policy of the US, the foreign nonjudicial divorce is recognized and valid un the US.

However, marital relation is a subject matter of state law, you should better consult your state attorney to check the situation in your state. Also a recognition of foreign nonjudical divorce requires additional proofs concerning a domicile and the content of the foreign law. So it might be a better idea to go thorough a judicial divorce at the Japanese court to minimize a legal risk of non-recognition in your home state.

Divorce is a life-changing event and, thus, quite stressful. Sometimes it could be more stressful and hurting than living together and seeking reconciliation. So you should better try everything to settle things out. When it doesn’t work, however, your last resort will be going to the court.

For further information on the Japanese divorce law and how to protect your rights and assets from divorce, please reach out to us by clicking here. Our Japanese lawyers in Tokyo and Osaka offices have been helping foreign clients with their divorce, custody, and marital property issues.