1.Types of Distributions
In accordance with Japanese Laws, there are 4 types of distribution of property in divorce procedures;
- Equal distribution of property/asset;
- Consolation money for the termination of marriage;
- Alimony; and
- Division of Pension.
NOTE: In Japan, there is no provision regarding alimony. However, distribution of property to this effect is frequently done.
As to the problem of distribution of property which usually arises during divorce procedures, Article 27 of the Act on General Rules for Application of Laws is applicable.
Article 25 shall apply mutatis mutandis to divorce; provided, however, that if either husband or wife is a Japanese national who has habitual residence in Japan, their divorce shall be governed by Japanese law.
The effect of a marriage shall be governed by the national law of the husband and wife if their national law is the same, or where that is not the case, by the law of the habitual residence of the husband and wife if their law of the habitual residence is the same, or where neither of these is the case, by the law of the place most closely connected with the husband and wife.
NOTE: Although the definition of ”distribution of property” may differ in countries, if Japanese law is applicable for the particular case, then according to Articles 27 and 25, the distribution of property is defined by Article 768 of the Civil Code.
Article 768 of the Civil Code:
- One party to a divorce by agreement may claim a distribution of property from the other party.
- If the parties do not, or cannot, settle on agreement with regard to the distribution of property pursuant to the provision of the preceding paragraph, either party may make a claim to the family court for a disposition in lieu of the agreement; provided that this claim for distribution of property shall be extinguished at the expiration of two years from the day of divorce.
- In the case referred to in the preceding paragraph, the family court shall determine whether to make a distribution, and the amount and method of that distribution, taking into account the amount of property obtained through the cooperation of both parties and all other circumstances.
NOTE: Article 768 of the Civil Code can also apply mutatis
mutandis to unregistered couples.
Target Property refers to any property such as cash, credit, stock, investment trust, bond, real estate, golf club membership, cancellation return from life assurance, movable property, etc. which is obtained during the period of the marriage can be the target for distribution.
4.Division of Pension
Division of pension is determined by each party’s income and/or employment status.
Employee’s pension, national public employee’s mutual pension, local government employee’s mutual pension, and private school personnel’s mutual pension.
Division of pension by consent is only applies to divorce after April 1st, 2007 and should be made within 2 years after the divorce.
According to the Employee’s Pension Insurance Act (Article 78-3(1)), the percentage of division should be maximum 50%.
If the parties cannot reach an agreement, each party can file for mediation with the Family Court.
- In the case where the parties divorced after April 2008 and one of them has been a nonworking dependent of the other party, he/she is also entitled to ask for a division of pension.