Section 6: Divorcing a Japanese Spouse
Divorce is a major life event. The journey to completing a divorce can be full of unpleasant moments and disagreements. It is not easy to resolve issues such as parental custody and/or how to divide assets in the midst of this process. In order to reach a settlement quickly, as well as making a plan for the future, it is best to consult with an attorney.
Where will my marriage be dissolved?
If your marriage partner has a Japanese address, as Japanese courts are recognized under international jurisdiction, you can file for and be granted a divorce in a Japanese court. If your marriage partner is not in Japan, then you can file for divorce in the country where your marriage partner lives, but you would need to consider how the laws of that country would affect your divorce filing.
Which nation’s law will apply to my divorce?
In the event that husband and wife have differing nationalities, and both parties in the marriage live in Japan, and if the place where both parties have the closest links (for example, the place they have lived for the majority of their married life, etc.) is Japan, or if one of the parties is Japanese with a Japanese address, Japanese Law shall apply.
Typically, if one is filing for divorce in Japan, then the applicable law shall be Japanese law in the majority of cases.
What do I have to decide on when I get divorced? These are the issues that you need to address when considering divorce proceedings:
Parental Custody and Visitation Rights
Under Japanese Law, joint custody is not recognized. If either the child or one or both parents has Japanese nationality, or if the child is a long-term resident of Japan, then Japanese law shall apply, meaning either the mother or father will have sole custody of the child. Whomever is appointed as the child’s custodian will live with said child and will have the right to decide on that child’s daily life, as well as control of any assets that child may possess. The other parent has visitation rights that mean he/she can arrange to meet regularly with the child.
When it comes to the verdict as to who will have custody of the children following a divorce, these are the items considered under Japanese Law as pertinent to that decision:
・Who has raised the child to this point
・The child’s current environment (any problems/issues, etc.)
・For each parent: their situation regarding childcare, their abilities therein, is anyone on hand to help with childrearing
・The physical health and financial situation of each parent
・The relationship between the child and each parent
・The child’s own wishes
We clearly don’t want to make assumptions based on gender, but in Japan in many households the wife no longer works and takes care of the home, so for that reason in many cases the mother is awarded custody of the child. In order for the father to be awarded custody of the child, it will take a reasonable amount of preparation prior to the custody hearing.
Child Support Payments
The person awarded custody of the children is responsible for raising them into adulthood as well as their day-to-day wellbeing. The other parent is still responsible for some of the costs of raising the children. In Japan, the financial burden of childrearing is calculated based on the income of the parents. In 2019 the criteria for childrearing were revised and the amounts were raised across the board.
In 2022 the age of majority (when a child becomes an adult in the eyes of the law) in Japan was reduced to 18. Child support payments can cease when the child reaches adulthood. However, depending on the family situation, there are cases where child support payments are mandated until the child graduates from university at age 22.
Division of Assets
Under Japanese Law, assets that were gained collaboratively during the duration of marriage are seen as joint held by the husband and wife, and in the event of a divorce these assets need to be divided. Regardless of whatever name those assets are registered under, under the law these are seen as jointly held assets. From a judicial standpoint, if for example during the marriage one party was unemployed, any assets accrued during the marriage are still seen as jointly held and as such subject to division, with the exception of the following assets:
・Assets held by one party prior to the marriage
・Assets inherited or gifted from relatives
Settlement Payments for Divorce
In the event that the reason for the divorce is due to the conduct of one party to the union, the other party may request a settlement payment. Typical examples would be infidelity or physical and/or verbal abuse. Irreconcilable differences of opinion are not enough to warrant a request for a settlement payment.
Dividing a Pension
Actually in Japan there is no mechanism or system to divide a pension between two people. When we talk about pensions, what is being referred to here is a mechanism for dividing a retirement annuity (a.k.a. the two-tier pension), whereby contributions were made by the married couple during the course of their married life. The basic flat rate pension for all Japanese citizens, known as the State Pension (tier one) is not applicable for division, regardless of the payments made during the duration of the marriage. Only the tier two pension – a corporate/private pension – can be divided between the couple when they divorce.
Currently, if you are residing in Japan on a spouse visa and you decide to get a divorce, you will have to change your status of residence should you wish to continue living in Japan. If you do not change your status of residence within 6 months of your change of marital status, you may find that your status of residence has been cancelled. So please be sure to change your status of residence within 6 months of the date of your divorce.
You will also need to update your spousal status with the Immigration Bureau within 14 days of the date of your divorce.
As for your status of residence, you may want to consider switching to the Long Term Resident visa or the Engineer/Specialist in Humanities/International Relations visa, but it would be advisable to consult with an immigration/visa specialist. At the Yamamura Law Office we do not deal directly with visa applications, but we can introduce you to a specialist.