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Divorce under the Japanese laws FAQs
Q: I am a foreign national married to a Japanese national, and my spouse and I are living in Japan. How can we get a divorce in Japan?
A: If you and your spouse agree to divorce, you can get a divorce by submitting a divorce paper to the local government. This divorce paper is called "rikon todoke." However, divorce by rikon todoke may not be recognized by the laws of your home country. To find out whether the divorce by rikon todoke is recognized by the laws of your home country, you will have to consult a lawyer who is familiar with the laws of your home country.
Q: My spouse and I agree to divorce but do not agree on terms of divorce, such as the division of marital assets, whether either one of us should pay the other compensation for mental suffering, which one of us should have the parental right over our children, and so on. How can we resolve our differences and get a divorce?
A: You or your spouse may apply for mediation at the Family Court. At the Family Court, a pair of mediators, a man and woman over 40 years of age, will listen to your problems, and assist you in finding solutions to them. If you and your spouse reach agreement with regard to terms of divorce as well as divorce itself, the judge will draft a document stating your agreement which will be as effective as the final judgment.
Q: I want to get a divorce, but my spouse does not agree to divorce even after mediation at the Family Court. How can I get a divorce?
A: You will have to file a lawsuit and win. According to the Japanese Civil Code, the court can grant divorce only if there is at least one of the certain causes for divorce stipulated by the Civil Code. They are: ① The spouse's infidelity, ② Malicious desertion by the spouse, ③ When it is not known for 3 years whether the spouse is alive, ④ When the spouse has mental illness from which recovery cannot be expected, or ⑤ When there is a grave reason which makes it difficult to continue the marriage.
Q: I am having an affair with another person and want to get a divorce. Can I sue my spouse and win?
A: If you are the one who created a cause for divorce, the court does not have to grant divorce against your spouse's will. The court may grant divorce if you have been separated from your spouse for not less than 6 years, you and your spouse have no minor children, and divorce will not make it difficult for your spouse to make decent living.
Q: If my spouse sued me for divorce because of my infidelity, would I have to pay her compensation for mental suffering at divorce? How much would that be?
A: Yes, if your spouse asks for it. The amount depends on various factors including the degree of unlawfulness of your act that caused divorce, length of your marriage, and whether you have minor children. However, it rarely exceeds 5 million yen.
Q: Which assets are divided at divorce and how is it determined?
A: Assets acquired and/or maintained though efforts by the couple will be the subject of division. Those acquired during marriage are presumed to be marital assets. They are divided according to the degree of contribution made by each spouse to acquisition/maintenance of the assets.
Q: My spouse had an affair with another person and left me. I do not have a job and our children are living with me. What should I do?
A: A married couple has legal obligation to support each other. So, as long as you are married, you can ask your spouse to pay you monetary support. If your spouse does not voluntarily pay you support, you can apply to the Family Court for mediation or a decree ordering your spouse to pay you support. The amount of support is usually determined in accordance with a chart prepared by the Family Court based upon the income of each of you. If your spouse does not have enough income to support two households, yours and his/hers, the court-ordered support may not be enough to support you and your children. In that case, you will have to seek other sources of income, such as governmental support or finding a job.
Q: Who will get the custody of children after divorce?
A: Under the Japanese Civil Code, the couple has to decide which one of them will have the custody of their minor children after divorce. If the couple has more than one child, one may have the custody of some of the children, and the other may have the custody of the rest of them. When the court grant a divorce, the judge will decide which one of the couple will have the custody of their children for the best interest of the children considering many factors including who has been the primary caretaker of the children. The court does not usually make much of financial capability to provide for the children, because the wealthier parent can always provide the other parent with necessary child support.
