How to divorce

Mainly there are three types of divorce under the Japanese law:
1. Kyogi Rikon Divorce by Agreement
It is an out-of-court divorce. If the couple agrees to divorce, they can
get a divorce by filling out a document called rikon todoke and
simply submitting it to the local government. If the couple has children,
they have to decide who will have the parental rights of the children
after divorce. Parental rights are similar to custody, and they include
rights to live with the children, to make decisions regarding the
children, and to control the childrens assets.
2. Chotei Rikon Divorce in Mediation
It is a divorce agreed in the mediation. If the couple cannot agree to
divorce or they are willing to get a divorce depending upon the
conditions, either one of the couple can apply for divorce mediation at
the Family Court.
Mediation in the family court is supposed to be presided over by three
mediators: a judge, and a man and a woman who are over 40 years old
with some social experiences. However, the judge is mostly absent
from the mediation and the mediation is usually conducted by two
people without legal knowledge.
Mediation sessions are usually held once a month. Since most
mediators are lay people, if you do not have legal knowledge, a clear
goal, and a maneuvering skill, it could drag on without any satisfying
outcome.
3. Rikon Saiban Divorce by Judgment
If the mediation fails, the only available means to divorce will be
litigation. One or both parties seeking divorce may sue the other/each
other for divorce. Divorce is granted when the judge finds one of the
following causes stipulated in Civil Code Article 770 (1):
i.

When a spouse has committed an act of unchastity;

ii.

When abandoned by his/her spouse in bad faith;

iii.

When it is not clear whether Plaintiffs spouse is dead or alive

for not less than three years;

iv.

When a spouse is suffering from severe mental illness and there

is no prospect of recovery; or

v.

When there is any other grave cause making it difficult to

continue the marriage.

During the course of litigation, the judge often suggests to hold

settlement meeting. If the parties agree to settle, they can get a divorce
by settlement, which is called Wakai Rikon.
Issues involved in divorce
It is helpful to identify what are the possible issues in your divorce and be
prepared before you initiate the divorce procedure.
1. Spouses Willingness to Divorce
If you want to divorce, but your spouse does not, you will follow these
3 steps:
i.

Try to persuade him/her to agree to divorce by, for example,

offering more assets/money than he/she could be awarded by
the court if it grants divorce.

ii.

If the out-of-court negotiation fails, you will apply for mediation

at the family court, and negotiate with your spouse through the
mediators.

iii.

If you cannot agree in the mediation, you will have to sue your
spouse to get a divorce. However, unless the judge finds one of
the causes for divorce stipulated in the Civil Code, divorce will
not be granted.

2. Who created the Cause of Divorce?

If one of the parties created the cause of divorce, the other may
demand compensation for mental suffering. Amount of compensation
in many cases ranges between 2-3 million yen, and 5 million yen at
most.
3. Division of Marital Assets
Assets obtained with earnings of either husband or wife during
marriage are considered marital assets. Marital assets existing at
the time of separation are subject to division upon divorce. The
Japanese court usually allocates one half of the marital assets to each
party. However, if the earning of one of the couple is considerably
higher than the other during marriage, the court may allocate more
assets to the high earner.
* If you forget to ask for division of assets before you get a divorce,
unless you have waived your rights for getting your share of the
marital assets, you can still request your ex-spouse for division of
marital assets within 2 years from the date of divorce.
* Kosei nenkin, employees pension and Kyosai nenkin
mutual aid pension are also subject to division upon divorce. You
can request division of pension during out-of-court negotiation,

mediation, or litigation for divorce. If you forget division of pension

in those procedures, you can still request it within 2 years from the
date of divorce. When considering whether to request division of
pension, it is important for you to get from a nearest Nenkin
Jimusho, pension office, Joho Tsuchisho, a document
showing how much money both you and your spouse have paid for
pension during marriage. If you have paid more than your spouse, it
is better not to request division, because it is not only your
spouses pension but also your pension that are subject to
division.
If the couple has children, there will be more issues in addition to
the above.
4. Custody/Parental Rights
If the couple has children under 20 years old, they must decide which
one of them will have the custody/parental rights of the children after
divorce. There is no joint custody after divorce under Japanese laws. If
the couple cannot reach an agreement, the court will decide which
one of the parents will have the custody. The court is likely to give you
custody if :
i.

You are currently living with the child after separation; and

ii.

You have been the primary caretaker of the child.

If the child is 15 years old or older, the court must hear the childs
opinion.
5. Child Support
Custodial parent can ask non-custodial parent for payment of monthly
child support. If parents cannot agree on the amount of child support,
the custodial parent can ask the family court to determine the amount
of monthly child support and to order the non-custodial parent to pay
that amount to the custodial parent. The court typically determines the
amount of child support according to the
table prepared by a group of family court judges.
6. Visitation
Non-custodial parent can ask custodial parent to let him/her see the
children regularly. If the parties cannot agree whether the noncustodial parent should see the children or frequency, length, and/or
mode of visitation, non-custodial parent can request the court to
decide them. The Japanese court typically allows non-custodial parent
to see his/her children once or twice a month.
International Divorce

1. Between Japanese and Foreign National

If you are a foreign national married to a Japanese, you may wonder
whether you can get a divorce in Japan. Japanese law recognizes all
three types of divorce described above. However, whether such
divorce is recognized in your home country depends upon the laws of
your country. It is advisable to consult a lawyer qualified to practice in
your home country under which procedure you should get a divorce
and what procedures are necessary in order for your divorce to be
recognized under the laws of your home country.
There are many useful websites telling you what is required by the
government of your home country to recognize foreign divorce. There
are also websites where you can find and contact lawyers of your home
country and contact them on the Internet, such as martindale.com.
2. Between Foreign Nationals
The Japanese Family Court has jurisdiction over foreign couples if one
of the couple lives in Japan. If the couple has the same nationality, the
court will apply the laws of the country of which the couple has
nationality. If the couple has different nationalities, but both live in
Japan, the court will apply the laws of Japan.
3. When One Spouse is Living Abroad
If one of the spouses is living in Japan but the other is living abroad,
can they get a divorce in Japan?
If the couple agrees to divorce, they can get a divorce by submitting a
divorce paper called Rikon Todoke, notification of divorce, to the
local government. However, such divorce may not be recognized by the
laws of your home country or the laws of the country where you live.
As of October, 2013, the Japanese court has limited jurisdiction over
lawsuits for divorce filed by those living in Japan against their spouses
living abroad. However, it has jurisdiction over lawsuits for divorce filed
by those living abroad against their spouses living in Japan.
Spousal Support and Alimony
Married couple has obligation to financially support each other. If you
have less income than your spouse, and he/she refuses to give you
necessary financial support, you can apply for mediation at the family
court to request spousal support. If you and your spouse cannot reach an
agreement in the mediation, the court will decide whether your spouse
needs to give you financial support and the amount according to the
table created by the selected family court judges. The table shows rough
amounts of spousal support based on the income of both parties and the
number of children they have.
Under Japanese laws, after the couple divorced, their obligation to
support each other ends. Therefore, even if one of them has need for
financial support, he/she is not entitled to get it from his/her former

spouse. However, the court sometimes awards a spouse who is old and
without any source of income additional money in division of marital
assets.
FAQs
1. Do I need a lawyer for the mediation?
Mediation is a process created for people to negotiate through the
mediators to resolve the conflict without lawyers. In fact, many people
attend mediation without lawyers. However, some people who
attended mediation without lawyers complain that they were
mistreated by the mediators, or they did not have any meaningful
discussion. As explained above, most mediators are lay people who
lack knowledge of relevant laws, sociological or psychological
expertise, and mediation management skills. If you are not represented
by an attorney, you may even waiver your rights by making a mediation
agreement without knowing you are doing so. If you do not have
enough funds to hire a lawyer, you should at least consult one before
you make a mediation agreement. When a large amount of money or
valuable assets are involved, it is usually better to hire a lawyer
because:
i.

The legal fees could be relatively small compared with the

amount of money involved.

ii.

Such cases are more likely to be litigated. You will most probably
hire a lawyer for litigation. If you hire a lawyer anyway, you may
feel better to be represented by one from the beginning.

2. Are there English-speaking mediators?

In some family courts, there are a few English-speaking mediators. But
their level of fluency varies. If you are not confident that you can make
yourself understood in Japanese, you should call the family court if you
can bring an interpreter. Or the court may ask you whether you need
an interpreter and may appoint one for you. But you will have to pay
the fee for the interpreter.
3. Are there any English-speaking judge?
There are. If the judge can speak English, he/she might do so when
he/she is acting as a mediator in the mediation. However, all official
procedures must be conducted in Japanese in the Japanese court.
Therefore, even if the judge can speak English, when he/she is
conducting official procedures, he/she will only speak Japanese and
will not interpret for you. Also, if you want to submit a document
written in a foreign language, it must be accompanied with a Japanese
translation. When you testify in court in a foreign language, the court
will appoint a qualified interpreter and you must pay the fee for the
interpreter in advance.

4. How long will it take to get a divorce in mediation?

It depends on how quickly the parties reach an agreement. Typically, a
mediation session is held once a month. Some couples reach an
agreement after a few sessions. Others cannot reach an agreement at
all at the mediation. After a few sessions, if the mediators find it
difficult for the parties to reach an agreement, they will end the
mediation, and one or both of the couple choose to litigate.
According to the statistics made public by the court, in 2011, out of
31,139 divorces agreed in mediation, 11,539 were agreed within 3
months, 13,479 within 6 months. However, 1,180 took more than a
year and more than 3,000 cases failed to reach agreements after 6
months or longer.
5. How long will it take to divorce in litigation?
It depends on how many issue must be adjudicated and how
complicated each issue is. Usually the larger the amount of money
involved, the longer it takes.