Practices

 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

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).

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.

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.

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).

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.

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.

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.

 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

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

For the types of divorce and grounds for divorce under Japanese law, please refer to Q1 and Q2 of <Divorce of Japanese Couples (including cases where both or one of them reside abroad) >.

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＞.

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.

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.

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.

Please refer to Q8 of the <Foreign Nationals with Japanese Nationals Spouse Divorcing in Japan＞.

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.

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.

If the dismissal was unfair, you can continue to work at the company.

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.

You may be able to file a claim for work injury benefits or a claim for damages against the company.