We handle a wide variety of issues including international elements as well as domestic ones.
All attorneys are available for consultation in Japanese and English, and our staff is able to communicate in Japanese, English and Vietnamese.
Inheritance and Estate Planning – including international elements
- Inheritance Procedures
- Preparation of Wills
- Execution of Wills
- Distribution of estate assets
- Request for Infringement of Legally Reserved Portion
- Investigation of Inheritors and estate assets
- Request for Appointment of Administrator (when inheritor does not exist)
Family Relationship and Child Disputes – including international elements
- Divorce / International divorce (including property distribution, marital support nd divorce alimony).
- Child-related issues (custody, childcare, contact/visitation, recognition).
- Adoption and separation
- Hague Convention cases on Child Abduction and Contact/Visitation
Employment Issues and Management for Foreigners
- Foreigner Recruitment
- Employment / Labor Contract, Working Regulation, Company Rules
- Visa Application
- Corporate Advisor
- Overtime Work ・Wage Issues
- Working Environment
- Occupational Health and Safety
- Company Startups
- Establishment of Branch in Branch
- Acquisition of Various Permits and Applications, Preparation of Documents
- Application for Visa
- Corporate Legal Affairs
- Protection of Intellectual Property such as Patents and Copyrights
We have Vietnamese staff and have provided Vietnamese people and Vietnam-related issues (individuals and companies) with legal services in a various kind of areas on a daily basis.
- Visa & Application for status of residence
- Procedures for applying for changing or extending the status of residence of foreigners.
- Procedures for bringing family members living abroad.
- Application for special residence permission
- Refugee application such as a lawsuit for cancelling a deportation and a lawsuit for revocation of unrecognized refugees.
Naturalization / Nationality Cases
- Acquisition of nationality
Foreign National Criminal Cases
- Immigration Control and Refugee Recognition Law Violations (Overstay / Illegal Employment / Illegal Employment Promotion, etc.)
- Drug Offenses (Use of Illegal Drugs Such As Stimulants, Smuggling, etc.)
- Other Criminal Offenses (Theft, Assault, etc.)
- Leasing relationship of houses
- Claim for damagesIf (traffic accident and product liability, etc.)
- Bankruptcy / Arbitrary Arrangement of Debt
Inheritance and Wills: Examples of Resolution
Will preparation and probate assistance
Case 1: Inheritance in Japan
(Details of consultation)
I am single, have no children, and live happily with my neighbors. In the event of my death, I would like my neighbor to take my pet dog and raise it.
We asked the client to draw up a will, which stated that the client would like to leave the pet to the neighbor and that the property equivalent to the cost of the pet be transferred. In addition, in order to reduce the burden on the neighbor, the attorney was appointed as the executor of the will to actually close the bank account and conduct other necessary procedure.
Case 2 : Inheritance involving overseas factor
(Details of consultation)
I have two children, one son and one daughter, both of whom are in overseas. My husband has already passed away.
They are close and I am not worried about them fighting over how to divide the inheritance, but since neither of them is in Japan, I am worried about whether all the inheritance procedures may be able to be carried out properly. I also have some property overseas myself, so what should I do?
(Resolution details) We asked the client to draw up a will, which stipulated that all property in Japan be converted into cash upon the client’s death, and designated the attorney as the executor of the will to carry out this conversion. In addition, we contacted a local attorney for the overseas property and had a separate will prepared in the U.S. which was consistent with the contents of the Japanese will.
Division of inheritance property and claim for the infringed amount of the remaining property
Case 1: Inheritance in Japan
(Details of consultation)
My husband passed away and there are four heirs who are myself and my husband’s brothers and sisters. I have socially associated with my husband’s older brother and sister as family, but I have never spoken to my husband’s younger brother, and I am told that he is isolated from his relatives. The house is in my husband’s name, but how can it be put into my name?
(Resolution details) We researched the younger brother’s address from his certificate of residence and sent a letter on the client’s behalf. A family member who lived with him contacted us and said that he was hospitalized in a facility. We made an appointment to visit him at the facility and met him in person, and he understood the situation. Each of the heirs was willing to cooperate with the inheritance procedures, so we paid them a small gratuity and received the inheritance portion of the house, and as a result, the client was able to solely inherit the house.
Case 2: Inheritance in Japan
(Details of consultation)
My father passed away and there are three heirs who are my mother, myself and my older brother. My older brother has a will which is said to be left by my father, but it says that all property is given to my brother. Will I receive anything?
(Resolution details) In this case, since the will was hand written, we first checked the validity of the will and found that although it was hand written, it did not have a seal and was not valid as a will. However, there was a possibility that the will could have been effective as a gift upon death in light of the circumstances and timing of its creation. Based on this, and taking into consideration the client’s wish to respect his father’s last will as much as possible, an agreement was reached on the division of the estate with a slight concession from the legally stipulated inheritance share.
Case 3: Inheritance involving overseas factor
(Details of consultation)
I was told that my younger sister, who was married to an American and resided in the U.S., recently passed away. She had no children and no will. How should I proceed with the inheritance procedures?
In the U.S., the court is required to be involved in the inheritance process, and in this case, the sister’s husband was appointed by the court as the administrator of the estate. Therefore, as the representative of the client, we contacted the husband and prepared the necessary documents for the succession of the property in the U.S. and Japan, and finally completed the inheritance procedure, resulting in the receipt of the remittance of money in accordance with the legal inheritance share.
Case No. 4: Inheritance involving overseas factor
(Details of consultation)
My older sister was married to an American and resided in the US. The other day, I suddenly received a huge document of over 100 pages from an American lawyer. The letter said that my sister had passed away, and the huge document enclosed seemed to be a document called a trust, but I do not understand what it said.
In the U.S., there is an inheritance measure called a trust, which can provide for the distribution of property after death in the same way as a will. The trust is divided into many categories, so it requires careful reading and interpretation. However, we were able to confirm that the client was designated as the beneficiary of the property, so we completed the procedure for receipt of the property while communicating with the trustee of the trust and the American attorney. In addition, although not strictly speaking an inheritance itself, it was subject to the inheritance tax, so we completed the procedures for filing an inheritance tax return in cooperation with a tax accountant.
Investigation of heirs and inherited property
Case 1: Inheritance in Japan
(Details of consultation)
My husband has passed away and I have been told that his heirs will be myself and his brothers and sisters. However, I was also told that our home is in the name of my husband’s grandfather and that in order for me to inherit the house, the estate of my husband’s grandfather must also be divided. I have no idea who my husband’s grandfather’s heirs will be or where they live.
After meticulous research of family relations from the family registers, we were able to identify the heirs, which numbered more than 20 people, and also found their current addresses from their residential certificates.
Case 2: Inheritance involving overseas factor
(Details of consultation)
My aunt was married to an American and resided in the US. The other day, I received a letter out of the blue from an American lawyer informing me that the aunt had passed away. It seems that he wants to know if I am her niece and if I am eligible to inherit.
(Resolution details) The kinship was able to be proved by gathering the family registers and translating them, as well as contacting the attorney in the U.S. and making a sworn statement at the U.S. consulate in Japan that the client was a niece.
Divorce of Japanese Couples (including cases where both or one of them reside abroad)
I and my spouse (“the other party”) are Japanese nationals. The other party and I are currently residing in Country A. We do not plan to return to Japan for the time being, but are considering divorce. ※For the information on various issues such as parental rights and division of property in divorce, please refer to the Q&A section of ＜Divorce in Japan for a Foreign National with a Japanese National Spouse＞.
1.(International Jurisdiction and Governing Law)
Is it safe to assume that in my case, I can get a divorce according to Japanese law? Also, is it possible to proceed with divorce proceedings in Japan?
If both spouses are Japanese nationals, Japanese law applies to their divorce regardless of their place of residence (Article 27 and 25 of the Act on General Rules for Application of Laws).
Therefore, if the couple is able to agree on divorce, a divorce by mutual consent is possible (Article 760 of the Civil Code). If both spouses reside abroad, the divorce can be finalized by submitting the divorce notification to the diplomatic establishment abroad (embassy or consulate). On the other hand, if a divorce by mutual consent is difficult, a petition for mediation can be filed with the family court in Japan (Article 3-13, Paragraph 1, Item 1 of the Family Affairs Case Procedures Law), or an action for divorce trial can be filed (Article 3-2, Item 5 of the Personal Status Litigation Lawsuits Law). However, in order for the procedure to proceed effectively and smoothly, it is advisable for both parties to appoint an attorney to represent each of them in Japan (if this is difficult, in some cases, the local divorce procedure in Country A should be considered).
Types of Divorce
Divorce by Consent This is the simplest method of divorce, whereby the couple discusses the divorce without the involvement of the court. However, it should be noted that in some countries, divorce by agreement is not considered a valid divorce. Divorce by Mediation and Adjudication The method is the same as for a divorce by consent in that it is discussed by the couple, but the procedure is different.
In a mediated divorce, one party petitions the family court for mediation, and a neutral third party (mediator) is appointed to mediate the divorce and reach an agreement during the mediation process.
In an adjudicated divorce, where the parties are unable to reach an agreement due to minor differences of opinion, the court decides to grant a divorce after considering various circumstances and giving due consideration to the fairness of both spouses.
Divorce by Trial In cases where it is difficult to reach a resolution through discussion, one of the spouses files a suit for divorce trial with the family court, and if there is a reason for the divorce, the divorce is granted based on the court’s decision (judgment). In order to go to the court for divorce trial, it is necessary to first file a petition for divorce mediation and discuss the matter (called “Mediation First Principle”).
2. (Grounds for Divorce)
If divorce through discussion is difficult, what grounds must exist for divorce to be granted?
Article 770, paragraph 1, item (i) to (v) of the Civil Code provides the following grounds (causes for divorce) for divorce to be granted. Even in cases (1) through (4) below, the court may refuse to grant a divorce if it finds it reasonable to continue the marriage (discretionary dismissal of divorce, under the Article 770, paragraph 2). However, in practice, discretionary dismissal only becomes an issue in the case of (4);
(1) When the spouse has committed adultery,
(2) When the spouse has maliciously abandoned the other spouse,
(3) When the spouse’s life or death has been uncertain for three years or more,
(4) When a spouse suffers from a severe mental illness and is not expected to recover.
(5) When there are other serious reasons that make it difficult to continue the marriage.
The “serious reasons that make it difficult to continue the marriage” in (5) includes long-term separation, violence or abuse to the other party, inability to have sexual intercourse, violation of the duty to cooperate and support the other party by living together (that does not amount to the level of malicious abandonment), discord over personalities, and so on. In particular, with regards to separation, a marriage tends to be recognized as broken after a period of separation of five years or more.
Even if there are grounds for divorce on the part of the spouse seeking a divorce (such a spouse is called a “responsible spouse”), the divorce may be recognized if the marriage is found to be broken down. In exceptional cases, a request for divorce may not be granted if there are special circumstances where the request is contrary to the Principle of Good Faith (“Fiduciary Principle”). In judicial precedents, the factors that determine whether a request for divorce is against the Principle of Good Faith include: (a) the couple has been separated for a considerable period of time in comparison for the age of the parties and the length of cohabitation; (b) there are no immature children; and (c) the other spouse would not subject to extremely harsh mental, social, and economic conditions due to the divorce or other significant circumstances. (Supreme Court, Grand Bench Decision, September 2, 1987, Minshu, J.S.C. Vol. 41, No. 6, p. 1423).
3. (Cross-Border Movement)
I would like to return to Japan with my child(ren). Please tell me what I should keep in mind.
The Convention on the Civil Aspects of International Child Abduction (commonly known as the “Hague Convention”) regulates cross-border removal of children, and Japan is a signatory to the Convention.
Under the Convention and its domestic implementation laws, when a person who has custody of a child (under 16 years of age) removes the child from the country where the child normally resides (country of habitual residence), without the consent of the other party with custody (usually the other parent), the court may order the child(ren) to be returned to the country of habitual residence, the upon the other party’s petition (See Article 13 of the Convention and Article 28 of the Law on the Implementation of the Convention, for the grounds on which such return can be refused). Please note that the Hague Convention and its domestic implementing laws also apply to cases where the parents are both Japanese.
In this case, if Country A is recognized as the State of habitual residence and Country A is a party to the Hague Convention, if the child is removed from Country A to Japan without the consent of the other party, unless there are exceptional circumstances, the Japanese family court may order the child to be returned to the Country A. In addition to consultations regarding Hague Convention cases, we also provide representation in court and arbitration, so please feel free to contact us.
Foreign Nationals with Japanese Nationals Spouse Divorcing in Japan
I am a national of Country A. I have a spouse who is a Japanese nationality (“the other party”) and we are considering divorce. I and the other party are currently living in Japan.
1. (Jurisdiction 1-1)
Is it possible to proceed with divorce procedures in a Japanese court?
Yes, it is possible.
If the other party’s address is in Japan, you can file a petition for mediation or file an action for divorce trial. For more information on the types of divorce under Japanese law, please refer to the above, <Divorce of Japanese Couples (including cases where both or one of them reside abroad)＞, Q1.
2. (Jurisdiction 1-2)
I cannot live with the other party any longer and would like to return to Country A. If I return to country A, can I still proceed with divorce procedures in Japan?
Yes, it is possible to proceed with the divorce procedures.
However, if you are not in Japan, you will need to appoint a representative (attorney) who can proceed with the divorce proceedings in Japan on your behalf.
That said, since conciliation is a discussion procedure, it is basically more preferable in many cases for you to be in Japan to participate in the discussion. Moreover, you must keep in mind that in the case of divorce trials, even after you have returned to Country A, it may be necessary to return to Japan for personal examination procedures (procedures to hear directly from the parties in court).
3. (Divorce 1-1)
Which country’s law will be applied for resolution of the divorce procedures between me and the other party?
If one of the spouses is a Japanese national with a domicile in Japan, Japanese law applies (proviso to Article 27 of the Act on General Rules for Application of Laws), so Japanese law will apply in this case.
4. (Divorce 1-2)
In Japan, in what circumstances can a divorce be granted?
For the grounds for divorce under Japanese law, please refer to <Divorce of Japanese Couples (including cases where both or one of them reside abroad)＞, Q2.
5. (Divorce 1-3)
My partner and I have completed marriage procedures not only in Japan but also in Country.
Therefore, I would like to get a divorce in Country A as well. In this case, is there anything I should keep in mind when filing for divorce in Japan?
A. If you get a divorce in Japan based on Japanese law, there is a possibility that it will be recognized as a valid divorce in Country A as well.
However, careful consideration should be given to the requirements and procedures for this. In particular, there are many countries that do not recognize divorce by mutual consent. Therefore, it is essential to first investigate the laws and regulations of Country A. If Country A does not recognize divorce by mutual consent, there is a possibility that a divorce by mutual consent in Japan will not be recognized as a valid divorce in Country A. In this case, it is necessary to decide which of the options of the mediated divorce, the divorce by adjudication or the divorce by trial is best for the couple.
6. (Marital Expenses)
My partner and I are planning to separate next month. I am not working now and I am worried about my future. I would like to receive living expenses from the other party.
If you reside in Japan, you are entitled to demand marital expenses (living expenses during marriage) from the other party based on Japanese law (Article 2 of the Act Concerning the Law Applicable to the Obligation to Support).
Basically, if you want to request for marriage expenses, you should file a petition for mediation for the sharing of marriage expenses with the family court. If the parties are unable to reach an agreement at the mediation, the court will determine the amount it deems appropriate based on the couple’s financial resources and other factors.
Please refer to the “Standard Calculation Method and Calculation Table (2018 Edition),” which has been established by the Japanese courts as a guide for calculating marital expenses. However, the said calculation table is only a guide, and the specific amount shall be determined on a case-by-case basis. https://www.courts.go.jp/toukei_siryou/siryo/H30shihou_houkoku/index.html
7. (Child 1-1)
I and the other party have a 7-year-old child. The child’s nationality is Japanese. In which country’s law would the custody of the child after divorce be decided? What about visitation?
Japanese law applies in both topics.
If the country of child’s nationality (home country) is the same as the country of the father or mother, the legal relationship between the parent and child, including custody and visitation, is governed by the law of the home country of the child (Article 32 of the Law Concerning the General Rules for the Application of Laws). In this case, since the nationality of the child and the father (the other party) is Japan, the law of Japan, which is the home country law of the child, will be applied.
The system and the name of the person who has parental authority differs depending on the country, such as parental responsibility, custodian, foster parent, etc. In some countries, the law stipulates that the father or mother shall be the custodian or caretaker of the child until the child reaches a certain age (for example, Article 81, Paragraph 3 of the Vietnamese Marriage and Family Law stipulates that the mother shall be the custodian or caretaker of the child under 36 months). However, there is no such provision in Japanese law. Matters of custody, visitation, etc. are determined primarily from the perspective of what is in the best interest of the child. If the child reaches a certain age, the child’s wishes will be respected, and the court may hear the child’s opinion.
8. (Children 1-2)
I would like to return to Country A with my child. Please tell me what I should keep in mind.
The Convention on the Civil Aspects of International Child Abduction (commonly known as the “Hague Convention”) regulates cross-border removal of children, etc. Japan is a signatory to the Hague Convention.
Under the Hague Convention, when a person having custody of a child (under 16 years of age) removes the child from the country where the child normally resides (country of habitual residence) without the consent of other persons having custody of the child (usually the parent), the court, upon petition for return by the person having custody of the child, shall order the child to be returned to the country of his/her habitual residence (see Article 13 of the Convention for the grounds for refusing the return).
In this case, if Country A is also a signatory to the Hague Convention, there is a possibility that a court in Country A may also order the return of the child to Japan, so it is important to keep this in mind. Our office provides consultation on Hague Convention cases as well as representation in court and arbitration, so please feel free to contact us.
9. (Child Support)
I would like to receive child support from the other party after the divorce. What should I do?
If the child resides in Japan, you can demand child support from the father (the other party) based on Japanese law (Article 2 of the Act Concerning the Law Applicable to the Obligation of Support). Usually, at the time of divorce, a request for child support is also made and discussed.
As with the marriage expenses mentioned in Q3, please refer to the “Standard Calculation Method and Calculation Table (2018 edition)” for child support. https://www.courts.go.jp/toukei_siryou/siryo/H30shihou_houkoku/index.html
10. (Division of Property)
After our marriage, my partner and I purchased real estate in Japan and also own stocks, savings, and other assets. When we get divorced, how will the division of these assets be resolved according to the law of which country? Also, what happens if there are also real estates, etc. in Country A?
The law applicable to the division of property (governing law) will depend on the governing law of the divorce. Therefore, Japanese law will be applied to the division of property in this case, and the decision will be made in accordance with Japanese law (please refer to Q3).
In principle, the property to be divided is the property that existed at the time of separation (or at the time of divorce, if the parties have not separated) which is constituted by the positive property minus the negative property, such as the home mortgage etc. This is because property division mainly aims to liquidate the property (common property) formed by the couple during their married life, because it can be said that the economic partnership between the couple has ceased to exist at the above point in time. In principle, property acquired by each of the couple through inheritance or other means (proprietary property) is not subject to property division.
In general, the valuation of subject property is based on the time of separation (or divorce if the couple has not separated) for those assets such as savings that does not change in value, and on the time of division for those assets such as real estate that can change in value.
In Japan, the contribution of the spouses to the subject property should be considered equal in principle, and unless there are special circumstances, the subject property will be divided in half accordingly between the spouses. If the real estate is located in Country A, different considerations may be necessary, such as the enforceability in Country A. It may be necessary to proceed with the cooperation by a local attorney in Country A, if necessary.
I have found out that the other party has been unfaithful to me with another person. I would like to claim alimony from the other party for the divorce. Is it possible?
As with the division of property, a claim for alimony due to divorce is governed by the law of divorce. In this case, it is possible to file a claim for alimony based on Japanese law.
12. (Status of Residence)
I am currently residing in Japan under the status of “Spouse or Child of Japanese National” of the other party. What will happen to my status of residence during the divorce proceedings? What will happen to my status of residence after the divorce? What if I have a child with Japanese nationality?
In order to qualify for “Spouse or Child of Japanese National” status, it is necessary to engage in activities as a spouse of a Japanese national, and except in cases where there are justifiable grounds, staying in Japan without engaging in activities as a spouse for more than 6 months without interruption will not qualify for “Spouse or Child of Japanese National” status (Article 22-4, Paragraph 1, Item 7 of the Immigration Control and Refugee Recognition Act). However, in practice, the possibility of restoration of marital relationship shall be taken into consideration, and for example, while divorce mediation or divorce proceedings are pending in court, the renewal of status of “Spouse or Child of Japanese National” tends to be approved. However, the normal period of stay would be “6 months”.
After the divorce, in addition to the possibility of changing the status of residence to “Engineer/Humanities/International Services,” etc., if there is a possibility of meeting the requirements of “Permanent Resident” status based on the duration of the marriage and the custody and support of the Japanese child, the change to “Permanent Resident” status should also be considered.
In any case, the status of residence during and after divorce proceedings should be carefully and flexibly considered according to each specific case. Our attorneys can handle streamlined legal services from divorce proceedings to change of status of residence, extension of period of stay, etc. with the staff who can speak English and Vietnamese.
For Foreign Couples Divorcing in Japan
*Both country A and country B below are assumed not to be Japan.
Pattern 1 (couples with the same nationality):
I am a national of nationality of Country A. I married my spouse who is also a national of Country A (hereinafter referred to as “the other party”) in accordance with the laws of Country A. I would like to divorce from the other party. We are currently living in Japan.
Pattern 2 (couples with different nationalities):
I am a national of Country A and I married my spouse whose nationality is of Country B (hereinafter referred to as “the other party”) in accordance with the laws of Countries A and Β. I would like to divorce from the other party. We are currently living in Japan.
1. (Jurisdiction 1-1)
Is it possible to start divorce proceedings in Japan?
Yes, it is possible.
If the other party’s address is in Japan, you can file a petition for mediation or file a suit for divorce trial.
2. (Jurisdiction 1-2)
I cannot live with the other party any longer and would like to return to Country A. If I return to country A, can I still proceed with divorce proceedings in Japan?
Yes, you can proceed with the divorce proceedings. However, please refer to <Foreign Nationals with Japanese Nationals Spouse Divorcing in Japan＞ Q2, for points to keep in mind.
3. (Jurisdiction 1-3)
The other party is planning to return to Country A (or B) next month. Can we proceed with divorce proceedings after the other party returns to Country A (or B)?
Since you and the other party’s last common address is in Japan, in this case, you can start divorce proceedings in Japan (Article 3-2, Item 6 of the Code of Procedure for Personal Status Litigation, and Article 3-13, Paragraph 1, Item 1 of the Family Affairs Case Procedures Law).
Please note, however, that the other party will need to have a representative (attorney) in Japan in order for the actual procedure to proceed smoothly. In some cases, it may be preferable to proceed with divorce proceedings in Country A (or B) in terms of time and cost. We also handle cases where the client or the other party is in a foreign country. We will consider the best solution for each case and advise you on what is the best for you to do and how to proceed in your case.
Can I proceed with divorce proceedings in Japan in the following cases?
(1) If your spouse (the other party) has never been to Japan, or if he/she has been to Japan but has never lived with you in Japan.
In some cases, it is possible to proceed with divorce proceedings in Japan.
Specifically, if the parties agree to proceed with divorce mediation in a Japanese family court, the mediation proceedings can proceed in that court (this is called a “Jurisdictional Agreement” under Article 3-13, Paragraph 1, Item 3 of the Family Affairs Case Procedures Act).
However, if the parties cannot reach an agreement on divorce in the conciliation process, they will have no other recourse but to bring proceedings for divorce trial. In a court divorce, the above Jurisdictional Agreement is not recognized, and unless there are special circumstances (as in (2) below), it is not possible to proceed with divorce proceedings in Japan.
Therefore, in order for divorce proceedings to proceed smoothly in Japan in the case of your question, it is necessary not only to agree to proceed with divorce mediation in a Japanese court, but also to agree in advance on the divorce and other conditions (such as parental rights and child support etc.) associated with the divorce.
If the other party returns to Japan, it is necessary to have a representative (attorney) in Japan, and in some cases, it may still be preferable to proceed with the divorce proceedings in the home country, as described in the main text.
(2) If the other party is missing
In this case, divorce proceedings may still proceed in a Japanese court in some cases. Article 3-2, Item 7 of the Code of Procedure for Personal Status Litigation provides that a divorce action may be filed in a Japanese court even in the following cases;
“If an action by one party regarding to the personal status relationship who has a domicile in Japan and where the other party is missing, and where a final and binding judgment regarding to the matter filed in the country where the other party has a domicile is not in effect in Japan, or if there is any other circumstances where it is found that it would promote equity between the parties or ensure the realization of a proper and speedy trial, if a Japanese court is to hear and decide upon the case.” However, it is not always easy to prove that a person is missing. Please note that it is necessary to investigate the immigration history of the other party as well as evidence that the other party is not at his/her domicile (the proof that the mail was returned due to non-delivery etc.) and to conduct any other possible investigations.
4. (Divorce 1-1)
Which country’s laws apply to my divorce from the other party?
The law applicable to divorce is determined based on the following criteria (Article 27 main text and Article 25 of the General Rules for the Application of Laws);
(1) If the laws of the couple’s home country are the same, the law of that country,
(2) If there is no law of the same home country, but the law of the couple’s habitual residence is the same, the law of that country,
(3) If there is neither the law of the same home country nor the law of the habitual residence, the law of the place most closely related to the couple.
(In the case of Pattern 1)
If you and the other party are the same Country A national, then the case (1) above should apply. In other words, since the law of the couple’s country of nationality (home country law) is the same Country A law, it should apply to your divorce.
(In the case of Pattern 2)
If you are nationality A and the other party is nationality B, (1) above does not apply.
Next, we will examine whether or not (2) above applies to you. If you and the other party have lived in Japan for a long time and your home or residence can be said to be Japan, then you fall under case (2) above and Japanese law should apply to your divorce because the law of your habitual residence is Japanese law. If you and the other party do not have the same domicile of residence in Japan, then neither of the above cases (2) applies. In such a case, we will consider the place where you and the other party were born or grew up, the language you speak, the country listed as your home country on your ID, etc., to determine which place is most closely related to you as a couple. Once that is determined, the law of that place should apply.
5. (Divorce 1-2)
What are the requirements for divorce (grounds for divorce) under Japanese law? What are the types of divorce?
6. (Divorce 1-3)
In my case, the divorce must be finalized in Country A (in the case of Pattern 1) or in Country A and Country B (in the case of Pattern 2). In this case, is there anything I need to keep in mind when going through the divorce procedures in Japan?
For points to keep in mind in order to obtain a divorce in Country A or otherwise, please refer to Q5 in the above <Foreign Nationals with Japanese Nationals Spouse Divorcing in Japan＞.
7. (Divorce 1-4)
What should I keep in mind if non-Japanese laws, such as the laws of Country A, are applicable to my divorce?
If a non-Japanese law such as the law of Country A applies to your divorce, you must fulfill the requirements for divorce stipulated in that law in order for the divorce to be granted. Therefore, it is essential to research the laws of that country. In some cases, the cooperation of a lawyer from that country may be necessary. In addition, depending on the country, divorce may be granted only after a specified period of time has elapsed since the marriage (for example, English law requires marriage for at least one year) or only after a specified period of separation (for example, New York state law requires separation for at least one year). Please keep in mind that such prerequisites may be imposed.
8. (Marital Expenses and Child Support)
My partner and I have two children aged 9 and 5. We plan to separate next month and I plan to live with the children in Japan. Since I earn less than the other party, I would like to receive living expenses from the other party. I would also like to receive child support for my children after the divorce. How will this be resolved according to the laws of which country?
We will consider each case separately.
(1) If you reside in Japan, you are entitled to receive marital expenses (living expenses during the marriage) from the other party, based on Japanese law (Article 2, paragraph 1 of the Law Concerning the Law Applicable to Alimony Obligations). For details, please refer to Q6 and Q9 in the <Foreign Nationals with Japanese Nationals Spouse Divorcing in Japan＞.
(2) What if you leave Japan and return to Country A (assuming the other party is still in Japan)? If Country A becomes your place of residence, the laws of Country A may be applied to your claim for marriage and child support (Article 2, Paragraph 1 of the Law Concerning the Law Applicable to the Obligation to Support).
In this case, it is necessary to investigate the laws and regulations regarding support obligations (marriage and child support) under the laws of Country A. For example, in Germany, a calculation table called the “Düsseldorfer Tabelle” is used to determine child support. However, if there is no such provision for support obligation in the law of Country A, it is determined according to Japanese law (Article 2, Paragraph 2 of the said law). In addition, the specific amount of marital expenses (degree of support) is to be determined in consideration of the financial resources of the couple (Article 8, Paragraph 2 of the said Law), and even when the law of Country A is applied, in some cases the Japanese law approach may be employed (please refer to the Q6 and Q9 in the <Foreign Nationals with Japanese Nationals Spouse Divorcing in Japan＞, especially as to the “Standard Calculation Method and Calculation Table (2018 edition)”) in order to determine the amount of marital expenses, child support, etc.
9. (Child 1-1)
Our child (see Q8) is of Country A’s nationality. According to which country’s law will the custody of our child be decided after divorce? What about visitation?
The laws applicable to issues of legal relations between parents and children, such as determination of parental authority and visitation, are determined based on the following criteria (Article 32 of the General Law Concerning the Application of Laws);
(1) If the law of the child’s home country is the same as that of the father or mother, the law of the child’s home country,
(2) In cases other than (1) above, the law of the child’s habitual residence. In your case, the law of the child’s country of nationality (home country law) is the same as your home country law (Country A’s law), the law of Country A will be applied to custody and visitation. Therefore, it is essential to investigate the law of Country A. Many countries have adopted the view that in resolving child issues, decisions should be made from the perspective of the best interests of the child or the child’s welfare.
10. (Children 1-2)
I would like to return to Country A with my child (ren). Please tell me what I should keep in mind.
Please refer to Q8 of the <Foreign Nationals with Japanese Nationals Spouse Divorcing in Japan＞.
11. (Division of Property)
After our marriage, my partner and I purchased real estate in Japan and have savings and other assets. We also have assets in Country A. What will happen to these assets when we get divorced?
The law applicable to the division of property (governing law) depends on the governing law of the divorce. Therefore, the property division will be decided according to the same law as the governing law decided in Q4 above.
For more information on the concept of property division under Japanese law, please refer to Q10 of the above <Foreign Nationals with Japanese Nationals Spouse Divorcing in Japan＞. On the other hand, if the law of a country other than Japan is the governing law, it is necessary to investigate the provisions of that country’s laws regarding the division of property. For example, in Japan, the principle is to divide the subject property in half between the couple, as described in Q10 above, but different countries have different ideas and calculation methods. For example, in Singapore, the method used is to calculate the direct and indirect contributions of the husband and wife to the property acquired during the marriage, and multiply this by a formula to calculate the property to be divided.
12. (Status of Residence)
I am currently residing in Japan under the other party’s “Family Stay” status. I plan to separate from the other party and will be going to work. What will happen to my status of residence during the divorce proceedings? Also, what will happen to my status of residence after the divorce?
In order to qualify for “Family Stay” status, you must be a “dependent spouse or child” of your spouse, and in principle, you must be financially dependent on your spouse on the premises of living together (in the case of a child, you must be receiving the care by the custodian).
Therefore, if you separate and become financially independent on the premises of divorce, you will need to consider changing your status of residence to another status (such as “Engineer/Humanities/International Services” etc.) since you would not fall under the activities as a “spouse or child receiving support” of the “Family Stay” visa any more.
In addition, after the divorce, the status of residence of “Family Stay” will no longer be applicable to you, so it is necessary to change to some other status of residence. Our attorneys can handle steps from divorce proceedings to change of the status of residence, extension of period of stay etc., and we also have staff members who can speak English and Vietnamese, so please feel free to consult with us.
Labor Issues and Labor Management for Foreign National Workers
A week ago, the president of the company said to me, “You have poor communication skills. Other employees are also troubled by you. You need not come to work from tomorrow.” I got scared and have not been going to the office since then. Can’t I work at the company anymore?
If the dismissal was unfair, you can continue to work at the company.
There is an employment relationship between the company (employer) and the worker, and the company is allowed to unilaterally terminate the employment relationship (dismissal) in certain cases. However, in the absence of just cause, the termination is not valid (Article 16 of the Labor Contract Law). Therefore, it is necessary to examine whether justifiable grounds are recognized in each individual case. The employer is required to give 30 days’ notice of termination or pay a notice allowance (Article 20 of the Labor Standards Law). The employer is also required to provide a written statement of the reason for the dismissal (Article 22 of the Labor Standards Law). When a dismissal is announced, it is necessary to examine whether or not these procedures have been followed.
The company has been very busy lately and I have been working later hours than what I was contracted to do. Since I am not being paid overtime, I would like to protest to the president of the company together with the employees I work with. However, we found out that my basic wage is lower than the employees I work with and also below the “minimum wage”. This may be because I am a foreigner. What should I do?
If you work overtime, you can claim extra wages from your employer. The additional payment shall be more than 25% for overtime in excess of the normal scheduled working hours, 35% for work on holidays, 25% for late night (during 10:00 p.m. to 5:00 a.m.), and 50% if the working time exceeds 60 hours in a month.
Differentiating wages based on nationality may not be allowed, since it is in violation of Article 3 of the Labor Standards Law. In such a case, the difference between the employee’s nationality and that of other employees would be the wage that should have been paid by the employer, and the employee may claim the amount of the difference. If wages below the minimum wage are paid, the difference below the minimum wage can be claimed (Article 4 of the Minimum Wage Law). Regional minimum wages (set by the prefecture), and specific minimum wages (set by the specific industry) may also be set.
Working Environment and Occupational Health and Safety
My boss is a hard worker, but he is very strict with his subordinates. About six months ago, he said very strict words to me in front of a large group of employees for a long period of time, and I have been feeling ill ever since. I have recently been diagnosed with depression. What should I do?
You may be able to file a claim for work injury benefits or a claim for damages against the company.
If an injury, disability, illness, or death occurs on the job or as a result of commuting to and from work, the employee is entitled to benefits as a work-related accident. Benefits include medical care benefits (the payment of hospital treatment expenses, etc.), off-work compensation benefits (the payment of a certain percentage of salary, starting from the fourth day of absence from work and thereafter), the disability compensation pension, and disability compensation lump sum payment, etc. (the benefits for residual disabilities). If you suffer from mental illness, including depression, as a result of so-called power harassment, it may be recognized as an occupational injury, and you may be entitled to the above benefits. In addition, if the employer is found to have violated its duty of care for the safety of workers, the worker may file a claim for damages against the employer. If the worker has received workers’ compensation benefits, the amount paid as workers’ compensation benefits will be deducted or otherwise adjusted when a claim for damages is filed.