1.What is Applicable Law?
Applicable law is a concept of private international law and refers to the national law that governs a given question of law in an international context. A court hearing an action does not necessarily apply its national law to settle the dispute. The law that is actually applicable is determined by the rules of conflict of laws.
(There are no common rules regarding conflict of laws in the world.)
2.Legal Nature and applicable law in Japan
The applicable law shall be determined after considering the legal nature of your claim.
Divorce, Division of property and demanding compensation for mental suffering.
On all these issues, applicable law is determined according to the law relevant to the divorce issue. Also, the applicable law is determined according to the following steps;
- If the parties have the same national law, such law shall apply.
- If the parties do not have the same national law, then the law of the habitual residence of the parties shall apply.
- If there are no such law, then the law of the place closely related to the parties shall apply.
- Notwithstanding all the above conditions, if either party has Japanese nationality and has habitual residence in Japan, then Japanese law shall apply.
Even if the child custody issue is filed with the divorce case, the applicable law may differ between divorce and child custody issues.
Applicable law for child custody issue is determined as follows;
- If the child’s national law is the same as either the father or the mother, the national law shall be applied.
- If there is no such law, the law of the place of habitual residence of the child shall apply.
Generally, the law of the domicile of the beneficiary of the payment, namely the child, shall be applied. In case the beneficiary has no right to receive the payment according to the law of the said country, the common national law of the parties should be applied. If the beneficiary of the payment has no right to receive it notwithstanding the laws of above countries, Japanese law shall apply.