International Marriages in Japan: Part Five -
Grounds for Divorce and Legal Considerations
J. Sean Curtin (Fellow, GLOCOM)
A full list of articles in this series can be found here.
While marriages that end in divorce are frequently stressful for both parties, those involving couples of differing nationalities can be particularly problematic because of various legal considerations that do not normally affect Japanese couples.
This article examines the basics grounds for a divorce in Japan and some of the legal issues involved for non-Japanese partners. Others aspects of divorce have already been covered in earlier articles in this series (see below). Although a specific case is examined here, the basic legal considerations are generally the same for most couples in similar circumstances. The case below was outlined by Gheorghe Scripcariu on NBR's Japan Forum on 20 June 2003 and his original article can be found here.
In relation to a marriage between a Romanian citizen (Mr. Ionescu) and a Japanese national (Mrs. Kono) in which both are mostly living in their respective home country, Gheorghe Scripcariu asked:  "What actual means supported by the Japanese Law has Mrs. Kono to follow-up on her intention to divorce from Mr. Ionescu? "
Sean Curtin: The Japanese Civil Code stipulates five basic grounds for divorce. These are (1) infidelity on the part of either spouse; (2) malicious abandonment (which means the failure, without justifiable cause, to fulfill the spousal duties of cohabitation, mutual cooperation and assistance); (3) when the whereabouts and status of a spouse are not known for over three years, regardless of cause; (4) an incurable mental illness, where there is no hope for recovery; and (5) serious misconduct on the part of one of the spouses. This final general category covers a wide spectrum of grounds such as cruelty, domestic violence, unreasonable behavior, incompatibility, loss of love in the marriage, inter alia. Basically, it must be shown that the marriage has irretrievably broken down.
Gheorghe Scripcariu:  "And if Mr. Ionescu will one day make up his mind at his turn to divorce from Mrs. Kono what will be the most (cost, time etc.) effective way to do this while getting at the same time (if at all possible) the custody of children who live now with their mother in Japan? "
Sean Curtin: Firstly, foreign citizens need to show evidence that they are able to be divorced in their country of nationality and that Japanese procedures are compatible with those in their home country. I don't know Romanian divorce law. Mr. Ionescu should ask the Romanian Embassy in Japan about this or the authorities in Romania. Quite a few countries don't admit Japanese divorce papers, so it is always best for foreign nationals to get advice about the legal situation in their own country.
Assuming that Mr. Ionescu and Mrs. Kono are (1) allowed to divorce in Japan, (2) can agree on the terms of their separation and (3) Mr. Ionescu is residing in Japan, then the Japanese procedure is probably the simplest way as they merely need to register their divorce. They do this by submitting an application to their local authority. This process is known as a mutual consent divorce (kyogi rikon). As long as the application document is filled in correctly, signed by both parties, and two witnesses, it is normally accepted. Once this has occurred, they are considered legally divorced. This is one of the simplest divorce procedures amongst industrially advanced nations. However, if there is serious disagreement between the two parties, then the Japanese legal system is notoriously slow, costly, time-consuming, frustrating and stressful.
In cases where couples can't agree on terms for their separation, there are basically three options open to them. (1) The first is divorce by arbitration in which the husband or wife request that the family court assist them with mediation (chotei rikon). (2) If arbitration fails, the family court takes over and has the authority to render its own terms for the divorce. This is known as a divorce by judgment of the family court (shimpan rikon). (3) If the family court's judgment is rejected by one of the parties, then an appeal can be lodged and the district court takes over the case (saiban rikon). Applying the Civil Code, the district court allocates assets and determines which party is responsible for the breakdown of the marriage. Either party in the divorce has the right to appeal to a higher court against any decision made in a lower court, all the way up to the Supreme Court.
Where there is a custody conflict, Japanese courts tend to hold the following criteria: (1) young children need their mother more than anything and (2) children should be raised by the parent with whom they can live with the fewest problems. In Japan, mothers get custody of the children in the vast majority of custody cases.
It is possible for a foreign national to gain custody of her/his offspring and remain in Japan. According to a government directive issued on 30 July 1996, with virtually no exceptions, foreigners who have custody of their legitimate children of Japanese nationality and who are actually raising those children in Japan, may receive permanent resident status. Custody issues will be examined in a later article in this series.
Other Articles in the International Marriages in Japan Series
International Marriages in Japan: Part One - Visa status of non-Japanese spouses in 2002
Social Trends: Series #13, GLOCOM Platform, 28 October 2002
International Marriages in Japan: Part Two – Impact of 17 October 2002 Supreme Court decision on International Marriages
Social Trends: Series #14, GLOCOM Platform, 28 October 2002
International Marriages in Japan: Part Three – Amerasian Children in Okinawa
Social Trends: Series #15, GLOCOM Platform, 8 November 2002
International Marriages in Japan: Part Four – Basic Data on International Marriage in 2002
Social Trends: Series #16, GLOCOM Platform, 12 November 2002
Other Related Refrences
Inequality in Japanese Marriage and Divorce Laws in 2002
Social Trends: Series #12, GLOCOM Platform, 21 October 2002
Family Trends in 2003 – Part Two: Population Data Shows Declining Birthrates, Fewer Marriages and More Divorces
Social Trends: Series #41, GLOCOM Platform, 11 June 2003
NBR'S JAPAN FORUM (SOC ) Divorce Law
Gheorghe Scripcariu, 20 June 2003
NBR'S JAPAN FORUM (SOC ) Divorce Law
J. Sean Curtin, 22 June 2003