Family law Q&A | ALG & Associates

Family law Q&A

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Q X (wife) and Y (husband) are Americans both living in Japan, however, Y is from different state in America. If they want to divorce, which law is to be applied?

A According to Article 38 (3) of the Act on General Rules for Application of Laws, their national laws shall be determined as their state laws.
When the parties have different national laws, then the law of habitual residence in common shall be applied. In this case, the habitual residence of both X and Y is Japan, and therefore Japanese law would be deemed the applicable law.
[Article 38 (3) of the Act on General Rules for Application of Laws; ”Where a party concerned has nationality in a country where different laws are applied in different regions, his/her national law shall be the law designated in accordance with the rules of the country”. ]

Q X (wife) and Y (husband) are Brazilians who got married in Japan, and are also living in Japan. They have two Children ages two and five. After Y lost his job, however, they do not get along with each other and they thereafter agree to get a divorce. Can X and Y obtain a divorce by consent in Japan?

A Their national law in common is Brazilian law, and therefore according to Article 17 of the Act on General Rules for Application of Laws, the applicable law is Brazilian law.
Divorce by consent is admitted under the Japanese law, however in the case where the national law of the parties does not admit divorce by consent, they cannot obtain a divorce by consent in Japan.
Under Brazilian law, husband and wife can obtain a divorce by consent under the limited circumstances, and when they have no minor children.
Therefore, as to the above case, X and Y would be unable to obtain a divorce by consent in Japan, as they have minor children and also Brazilian law does not admit divorce by consent in such circumstance.

Q X (wife) is a Japanese and married to Y (husband) an American. They have a child aged two C. X and Y always have numerous quarrels and do not get along with each other. On one occasion, Y visited America with C, and during such a visit, Y phoned X to say that he will not be returning to Japan with C.
X wants Y to return C to Japan. What kind of procedure can X take?

A According to the Hague Convention, the child, under the age of 16, should be returned to his/her habitual residence. X can claim that her right of custody was breached and may apply to the Ministry of Foreign Affairs in Japan for assistance in securing the return of the child.

Q X (wife) is from a country with a better economy than Y’s country.
In a divorce procedure in Japan, do Japanese courts consider such an issue when deciding whether Y should pay compensation, and the amount of compensation Y should pay?

A According to the lower instance court in Japan, the issue of a country’s economic status should not be considered when deciding on the issue of compensation.

Q What is the difference between Shinken [Article 820 of the Civil Code] and Kangoken [Article 766 of the Civil Code]?

A A person who exercises Shinken holds the right, and bears the duty, to care for and educate the child [Article 820 of the Civil Code]. Therefore, the person who has Shinken of the minors shall decide; where they should live, what sort of education they should receive, and take care of the child’s property. Also, a person who exercises Shinken represents some of the acts on the status of the minors and gives consent to the judicial act of the minors.
Generally, during marriage, Shinken shall be exercised by both parents. If the parents are planning on obtaining a divorce by consent, however, they should agree upon which parent shall have Shinken in relation to a child [Article 819 (1) of the Civil Code].
Kangoken, which is the practical relationship between a parent and his or her child, is included in Shinken, so that a person who exercises Shinken also exercises Kangoken. On the other hand, it is possible to divide Shinken and Kangoken under Japanese law, even if it is not common to do so in practice. These two rights are divided when it is necessary for the child’s interests, for example, in the case where a person who has custody of the minor is not competent to manage the minor’s property; where there are serious disputes regarding which person should take Shinken, and therefore it is the best choice for the child that both parents exercise custody or parental authority after their divorce.