In Japan, you can obtain a Divorce by;
- Mediation; and by
- Court trial.
As the Japanese law recognizes divorce by consent, you can obtain a divorce if your husband/wife consents to it. If however, a consent cannot be reached, then either can file for mediation with the Family Court.
1.Divorce by Consent
Divorce by Consent accounts for approximately 90% of all divorces in Japan. This procedure is a unique and very simple way to get divorce. If the consent has been reached between the parties, they are required to sign a divorce document and hand to the municipal office of the city, ward, town or village in which they live. Such a divorce document can be handed in by either party.
It should be noted that there are cases where divorce by consent is not recognized. One such case is International Divorces. In such a case, divorce by consent is only possible in circumstances where consent of the divorce is deemed legal under the parties’ applicable laws.
[NOTE: If you have a child(ren), it is necessary that you make certain agreements with your husband/wife regarding such matters as; which parent shall have Shinken of the child(ren); responsibility for maintenance; visitations etc. [Article 820 of the Civil Code]
Furthermore, the parent who shall have Shinken after the divorce should be clearly stipulated in the divorce document. However, even if there exists the above mentioned agreements with your husband/wife you cannot register these agreements on your divorce paper.]
As to the issue of child custody and parental responsibility, the Japanese Family Law system, uses a provision known as ’Shinken’, which is commonly understood to mean parental authority.
According to Article 818 (3) of the Japanese Civil Code, ”Parental authority shall be exercised jointly by married parents.” This means that while the parents are married they have joint Shinken of the child(ren).
2.Divorce by Mediation
If a consent has not been reached between the parties, you need to bring an action before the courts. However, before you file a lawsuit with a court, you are required to file with the Family Court a motion for mediation.
However, if the other party does not live in Japan, and it is clear that such a party will not appear before the Family court, you may omit the mediation and immediately file a lawsuit.
Divorce by the decision rendered by the Family Court
Under Article 24 of the Domestic Relations Trial Act, even if the mediation was unsuccessful, the Family Court can render a decision for the divorce, after taking into consideration all the circumstances.
This procedure is rarely used because the decision shall be deemed invalid if either party makes an appeal. Nevertheless, such a procedure is used for example in international divorces, especially in cases where the law in either party’s home country or habitual residence does not acknowledge divorce by consent.
The court shall render a decision regarding the divorce, only when there are grounds for the divorce as per article 770 of the Civil Act (please see the below Section B- Grounds for the divorce).
It should be noted that approximately 1% of divorces are settled by way of judicial decision.
The courts usually adopt a three-trial system, and you can appeal to the Court of Second Instance if you are not satisfied with the court’s decision.
However, a final appeal may be filed by reason that a judgment contains a misconstruction of the Constitution, or other conditions under Article 312 of the Code of Civil Procedure.
Divorce by the Settlement
After filing the lawsuit for the divorce, parties still have the option to have the divorce settled, if they both consent to the divorce. However, after a settlement has been reached, the parties cannot alter their decision, and also cannot prevent the registration of the divorce.
Divorce by admission
If the defendant acknowledges the plaintiff’s claim, a divorce shall be effected.
This procedure should be taken under circumstances where there are no unresolved issues pertaining to child custody, property division and pension splitting. It should be noted that a very few cases are settled under this procedure.
The grounds for divorce are stipulated in Article 770 (1) of the Civil Code.
According to such an Article, there are 5 grounds for Divorce
(ⅰ) if a spouse has committed an act of Adultery;
[Husband or wife had sex with someone else of the opposite sex.]
(ⅱ) if abandoned by a spouse in bad faith;
[Husband or wife does not perform his/her duty to live together, cooperate and provide mutual assistance, as per Article 752 of Civil Code, without justifiable grounds.
(ⅲ) if it is not clear whether a spouse is dead or alive for not less than three years;
[This clause shall be applied in circumstance where it is not possible to verify that a spouse is dead or alive. This clause is not useful for the case of missing.]
(Ⅳ) if a spouse is suffering from severe mental illness and there is no prospect of recovery; or
[Severe mental illness should be that a spouse cannot perform his/her duty to live together, cooperate, and provide mutual assistance.]
(Ⅴ) if there is any other grave cause(s) making it difficult to continue the marriage.
[This clause is the general provision for the grounds for divorce. Case wise, for example, domestic violence, irreconcilable difference, and refusal of sexual relations for a long period of time are considered as ”grave causes”. Furthermore, the Supreme Court in a case dated 2 Sep 1987 decided that Divorce can be effected, even if the lawsuit was filed from the party at fault under certain circumstances.]