Under Japanese law, there are four possible divorce procedures:
1) consensual divorce(divorce by mutual consent (no court involvement) (kyougi-rikon)),
2) mediated divorce (chotei-rikon),
3) divorce by family court adjudication (shinpan-rikon), and
4) divorce by family court decision (saiban-rikon).
Consensual divorce is possible when the husband and wife consult and agree with one another about the divorce. This type of divorce is recognized under Article 763 of the Civil Code of Japan. No court procedure is necessary in this case. In contrast, divorce by trial (saiban-rikon) is used only when there is a legally defined standard reason for the divorce. In consensual divorce there is no such reason. In consensual divorce, the husband and wife sign and seal a divorce form, have it signed and sealed by two adult witnesses, and deliver it to the relevant municipal authority such as a city, town, or village. The divorce becomes valid under Japanese law and their family register (koseki) will record the divorce accordingly. With that, the divorce is finalized. This is a simple and low-cost method. It is the appropriate method to use when there is no particular property to divide and there is no need to demand a settlement or alimony from the other party. However, where there are children for whom child support must be decided, or when property must be divided, in other words, when various decisions must be made, each party should protect their own interests by engaging an attorney so that an appropriate divorce agreement be prepared and executed.
Divorce mediation is one form of family mediation under Japan’s Civil Code and Civil Procedures Law. This procedure is often used in Japan.
Family mediation can handle matters which could be solved by personal status litigation (jinji sosho) and any other disputes related to families.
Divorce mediation is accepted since divorce can be handled as personal status litigation:” Mediation in family court generally handles matters defined as matters to be handled as personal status litigation :
・Marriage invalidation
・Marriage cancellation
・Divorce invalidation, divorce cancellation, recognition of life or death as related to marriage
・Invalidation and cancellation of adoption of a child
・Disputes regarding presence of or absence of parent-child relation
“Other matters generally related to families” are as follows:
・Marriage expenses division
・Parental rights and care of children at the time of divorce (including child support expenses).）
・Property division at the time of divorce
・Determination of parental rights at the time of divorce
・Modification of parental rights
Mediation is a process of reaching agreement. Family mediation demands participation of the parties as a basic principle, even if attorneys are present. Mediation is conducted by one family court judge and two mediators. A family court judge is normally quite busy with a large caseload of mediation cases and will not necessarily get involved in each mediation process. The facts and circumstances will be heard primarily by the two mediators, who will try to resolve issues and reach agreement by the parties. In practice, the mediators are supposed to explain the circumstances to the judge.
Mediators are not judges. Most are not attorneys either. How are mediators chosen? Most mediators are knowledgeable people, teachers and others chosen for their deep knowledge and wide experience in general social issues.
The attorney’s role in a mediation process is to provide support in terms of legal knowledge that is normally lacking among the mediators, who are not legal specialists. However, an attorney represents the interests of only one party and will therefore not advance any points of law advantageous to the other party. Therefore, a disadvantageous mediation outcome is likely when a person undergoes mediation without an attorney. Even when an attorney seems useless because the other party is not represented, the attorney’s mission will be to act on behalf of his or her client. The attorney will not support the other party’s interests under any circumstances.
The mediation results have the same validity as a court’s decision. A mediation agreement is drawn up when the mediation is completed. This document is as effective as a final court decision. Therefore, this is a very effective divorce procedure for deciding parental rights, child support and property division. Setting aside attorney’s fees, the mediation system is easy to use due to the administrative procedure’s extremely low cost and procedural flexibility.
Divorce by family court adjudication is rather rare.
In the process called shinn-pann under Japanese family law in general, a judge will decide certain specific matters regarding family based on a review of documents filed by the parties and of the results of an investigation conducted by a family court iteserlf.
There are almost no cases in which the court decides on the divorce itself by adjudication. A lawsuit for a court order is used for divorce.
In a case where the parties can agree on the divorce during the divorce mediation but have other issues upon which they cannot agree, those issues can be submitted for adjudication instead. The issues include disputes about modification of parental rights, decisions of child support or marriage expenses. In principle, the parties must first attempt agreement within the mediation process before issues can be submitted for adjudication.
First, in Japan, a party may not arbitrarily initiate a divorce by trial. The parties must first attempt to agree by mediation. This is called the mediation-first principle. A reason for the divorce is required for a divorce by trial. Article 770, Section 1 of the Civil Code of Japan sets forth the cases in which divorce by trial is possible (reasons for divorce).
The acceptable reasons for divorce by trial are listed below.
・Infidelity
・Malicious abandonment
・Whereabouts unknown for 3 years or more
・Serious mental illness
・Another serious reason that the marriage should not be continued
Furthermore, according to the law, if after a thorough review of all circumstances, the court finds that the marriage should be continued, the court can dismiss the divorce petition even if the parties want to divorce. Reading the law alone, it appears that a judge may decide not to permit a divorce when considering all of the circumstances, even though both parties want to divorce. However, there are virtually no actual cases of judges prohibiting divorces when both parties want to divorce. Japanese divorce procedure respects the will of the parties on the matter of divorce.
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When divorcing under Japanese family law, only one parent has parental rights.
This is called “sole parental rights”.
It means that one party loses their parental rights in a divorce, even though there were two parents before divorce. (The mother and father jointly hold the parental rights during the marriage.)
There is much criticism of this system both in other countries and in Japan. The situation has arrived at a stage where we personally feel that the legal system must be re-examined, but the current system will be described here.
Because Japanese family law system has a sole parental rights system after divorce, when a divorcing couple has minor children, one parent must be designated as having the parental rights for the divorce to take effect.
It is acceptable if the husband and wife can decide this by discussing it themselves, but it is a problem when they cannot. In these cases, mediation, divorce by trial (lawsuit) or family court adjudication (shinn-pann) will be used to decide who should have the parental rights. Mediation is a process for reaching agreement, but if such agreement is impossible, the decision is made by the court in the cases of divorce trial or adjudication especially initiated for
determination of parental rights.
The standard for parental rights decisions is “the best interests of the child.” (Section 6, Article 819, Civil Code of Japan)
The judge considers and decides based on which would be best for the child. The judge considers and decides, but not arbitrarily. In general, the following items are investigated and considered.
In terms of each parent’s circumstances
【１】Capacity and means of raising the child (Economic circumstances,home environment, family environment, education environment and so forth.)
【２】Love for the child and desire to raise the child
【３】Health status of the parent
The child’s own circumstances
【１】The child’s situation in terms of age (there is a tendency to favor maternal parental rights for young children)
【２】Stability of environment (the child’s present home and environment is thought to be best left unchanged)
【３】The child’s own feelings (young children’s have difficulty expressing their feelings, so these are not investigated very much.)
Child support is the expenses required to raise the minor child until he or she becomes independent as an adult.
It is not explicitly recognized as such in the provisions of the Civil Code of Japan or any other Japanese family law , but it can be considered a responsibility shared by the husband and wife based on the text of other provisions such as those related to the division of responsibilities for marriage expenses. The responsibility for child support is not held at the maximum possible limit, but is a duty to pay the required amount of money according to means (even if there is nothing left over). This is called the duty to maintain standard of living under Japanese family law.
“Duty to maintain standard of living” means “duty to provide the amount of support that enables approximately the same standard of living as the parent enjoys. It is not a duty that can be described as “a duty to support the other person’s standard of living at the minimum level, limited to the amount that will not sacrifice one’s own standard of living. It is not to a duty to pay whatever the parent has left over, but is an amount that absolutely must be divided and allocated to the child no matter what, even if it means giving half a bowl of porridge or half a slice of bread, if that’s all there is.
There is a standard table of child support calculations for the speedy and fair calculation of child support. It is also used by private practitioners (attorneys). The table is used to find the standard amount of child support. There are cases where the divorcing parties agree according to this standard and achieve a divorce by consent, thus successfully avoiding mediation or trial.
The table is in use within the Japanese family courts as well, and judges abide by the standard. The calculation table is used to calculate child support appropriate to maintaining the standard of living. This is a calculation method that first takes into account the total income amounts of the paying party and the petitioner, then divides the child’s necessary upkeep expenses proportionally to those incomes, while provisionally assuming the child is living in the home of the paying party.
The table is used as a base for the mediation process. In particular, mediators demand the submission of materials such as salary details that are required to make a determination based on this form. Normally, when these materials are submitted, the amount according to the table is indicated as an opinion at the mediation session. There are times when the parties are told that even if it is adjudicated the result will be the same. However, the standard is not absolute, and is not used to decide every case. Each case has its own various circumstances.
Special circumstances must be carefully described to an attorney, who will emphasize them in procedures of Japanese family court. For example, the table uses public school tuition as a standard, but a child attending a private school or who is expected to attend a private school may receive more money if that fact is emphasized.
When the parties cannot agree on the divorce itself, or when they agree on the divorce itself but cannot agree on the child support and therefore cannot agree on the divorce, the mediation process is started with the aim of divorcing, and when agreement is not reached through mediation, the case advances to the adjudication procedure. In that context, the parent that is attempting to win parental rights can petition for post-divorce child maintenance expenses in the form of a divorce lawsuit, and a child support decision will be made together with decision about the divorce.
Expenses during the marriage are handled as an issue of marriage expenses. Therefore, a lawsuit is opened to divide marriage expenses. Please see the section that covers separation.
When petitioning for child support after divorce, the petition for child maintenance expenses division is formulated as a caset. The petitioning party can select either mediation or adjudication procedure. Mediation is normally initially chosen. This is because a party bringing an adjudication procedure will be told by the court to mediate first. In many cases, an adjudication procedure cannot be advanced unless mediation is started.
In cases where child support payments are wanted as soon as possible for some reason, it is suitable to begin an adjudication procedure, then use a procedure known as pre-trial temporary injunction before the procedure. This is called “pre-trial temporary payments,” and it is a system under which a plaintiff can obtain a court order for immediate payment of a certain amount of child support payments, e.g.“Defendant is ordered to pay Plaintiff nn yen by the last day of each month, from [day, year] until the Court decision on docket number nnnnnn-year.” If you are struggling, please consider using this system.
The Civil Code of Japan includes a provision called the “Duty to maintain standard of living,” that means the husband and wife must help each other so as to maintain an equivalent standard of living. Because of this, there is a duty to share the expenses arising from the marriage according to income and to all other circumstances. Expenses arising from the marriage include normal daily living expenses: clothing, food, and housing, medical, children’s education and support, transportation, and so forth.
When a husband and wife live a normal, harmonious married life together, division of living expenses is decided autonomously, but when a marriage breaks apart and the couple begins living separately, alimony become a problem. While they are living separately, it is illegal for the husband (who earns more than the wife) to withhold living expenses from the wife. Even if they are discussing or litigating the divorce, he has a duty to provide alimony.
Although some think that they can successfully demand the amount of alimony accrued in the past from the time of separation, others consider it retroactive only until the opening of mediation, and at present there are precedents for both views.
In general, it is difficult to be paid retroactively, but if “I have not received an amount in the past” is asserted when property is divided upon divorce, mediators and courts tend to consider it and increase the amount of the property division.
Past child support is similarly difficult to collect retroactively, but we believe it is inappropriate that the right to petition is somehow lost if a petition is not made. (Since rights do not disappear unless they disappear by extinctive prescription, this conclusion is somewhat incorrect, isn’t it?) Therefore, an attorney should strongly assert the right to petition retroactively.
When a divorce trial is being proceeded for the divorce decision (saiban-rikon), it is not possible to petition for payment of retroactive alimony in the same trial procedure. Therefore, a separate lawsuit must be filed in order to demand such payment.
However, property division decisions take various circumstances into account and consider the facts, so seeking a separate lawsuit is probably unnecessary.
Child support is right of the spouse who lives with children Any financial support for the spouse after divorce is not an obligation under Japanese civil law.
Divorce court decision precedents have established that when there was a petition demanding past child support from the time of separation until the divorce, the court may include child support payments in the decision granting the divorce. However, past alimony is generally considered to be considered to be included in property division, and child support orders for future will be orderd within divorce court order. For past child support up until the divorce, we believe it is the best way to consider it part of past alimony and to handle it within property division.
However, when pre-divorce payments are wanted, and divorce trial procedure is prolonged, it may be advantageous to initiate a petition(shinn-pann) for the past alimony to obtain payments more quickly.
When divorcing under Japanese law, property is divided under Civil Code of Japan. The Civil Code of Japandescribe the right of one divorcing party to petition the other party for the division of property. Property that was acquired by the husband and/or wife during a marriage should be generally equally divided when the marriage ends.
However, there are meanings to property division that goes beyond simple division.
First, it means a payment to the party that will be economically weaker after the divorce. For example, in the case of a woman who became a full-time homemaker after her marriage, it is unfair that her former husband has no duty to support her after the divorce when they are living separately. (Under Japanese law, after divorce, one party no longer has the duty to support the other party, and has only the duty to support the children. Therefore, there is no economic support by husbands of their former wives after divorce.) This is because once the wife loses her occupation, she cannot easily get it back, and in many ordinary cases she cannot attain the same income level as her former husband, even if she does work. Therefore, property division is handled so as to economically support the party who will be in the weaker position after such a divorce.
Furthermore, it also carries a meaning of consolation money when a person was divorced due to any fault by the other party . It is possible to petition for consolation money separately from the property division, and it is also acceptable to petition for a consolation money portion within a property division petition.
1) When agreement is reached:
It is discussed at the same time as the divorce, or property division
can be made separately from the divorce within two years thereafter.
2) When agreement cannot be reached:
A request is usually made for family mediation for discussion to agree
to the terms.
Jurisdiction of such mediation is a family court agreed between the
parties or the family court which is near district where the other
party resides.
When agreement cannot be reached by mediation, the terms of division
is adjudicated and the family court makes a decision. Because property
division petition rights are valid for only two years after a divorce,
the petitioning party must be careful to commence the mediation and
adjudication procedures within two years after the divorce.
If the trial for a divorce is commenced, the property division terms
can be heard by the court as one matter covered in the trial and the
court decision will cover the property division terms.
Exclusively owned property, that is, property owned individually by one party irrespective of the marriage (inherited property, etc.), is not subject to property division. Any other property is subject to property division as joint property. Joint ownership is supposed to be legally assumed for the property owned in the name of husband or wife during the marriage.