Mrs. A writes: “I’m a foreigner living in Oita city, married to a Japanese national, with two children.
“We have attended several chōtei (mediation sessions). Yesterday was the last. My husband said he will file for saiban (litigation), which will be scheduled next year for January or February.
“My worry is that I won’t get everything my husband has promised me after our divorce. While he was discussing with me several promises (financial support, a condo unit, pension payments for me, etc.) I made him write all of his intentions in my notebook in his own handwriting. The deal seemed favorable to me and my children and I readily agreed to it.
“Several minutes passed, he cancelled all of the promises and didn’t inform me. At the chōtei I was surprised that he totally changed his mind.
“What should I do? How would this look in court, and can I apply for saiban myself now I have finished chōtei?”
As has been explained before in this column, to file for a divorce in Japanese court, one first needs to go through mediation process (chōtei). Now that this process has come to an end, Mrs. A appears to have questions about three aspects of her case: 1) the legal weight of a property agreement made prior to divorce, 2) what information will be carried over from the mediation to the subsequent saiban, and 3) how to begin litigation.
To answer her first point, under Japanese law any formal agreement on the division of shared properties in the event of divorce would generally be considered valid even if it is made prior to divorce. There seems to be no court precedent on how old a divorce agreement can be to be valid at the time of divorce, but in Mrs. A’s case, where discussion on divorce had already started, their agreement would be legally binding.
That said, what Mrs. A’s husband wrote in her notebook sounds like it was only a memo of what they were discussing, and a judge is unlikely to consider it to be a valid property agreement reached between them.
On Mrs. A’s second point, it is important to note that anything that either party says or promises during the mediation sessions has no legal binding power. While the mediators may be taking notes during the conversation, including certain proposals or promises, there is no official record of such proposals unless a final agreement is reached, in which case details of the deal would be kept as a trial record. In other words, Mrs. A’s husband is within his rights to take back an offer made during mediation, with no legal consequences.
After the termination of mediation, either spouse can start litigation. The case can be filed at the court nearest either party’s residence, unlike mediation, which must be filed near the residence of the other spouse.
The process is entirely new and independent of the preceding mediation. One only needs to submit, along with other required documents, a proof of termination of the mediation, which you can get from the court where the mediation took place. The documents submitted or used during the mediation will not be handed over to the court handling the litigation, and if there is anything you want to carry over, it has to be submitted again as evidence. Although there is no requirement to have a representative in litigation, it is strongly recommended that you do (especially if Japanese is not your native tongue). Some mediators speak English, and so do some judges, but judges are required by law to always use Japanese during a trial.
In conclusion, Mrs. A can start the litigation herself or wait for her husband to do so, but she will have to start from scratch despite the earlier promises her husband made. If the husband never offers the same deal during the trial, she will eventually be awarded no more or less than what she is entitled to by law — namely half of the couple’s joint assets.
As a last note, Mrs. A should consider immediately filing for mediation on the payment of marital expenses, independently of the divorce litigation. As the litigation tends to take a long time, it may help to be receiving monthly payments in the meantime. Although in his notes he seems to have agreed to pay this, if her husband changes his mind and refuses to pay, the judge will eventually order him to do so.
Yuichi Kawamoto is an attorney with the Foreigners and International Service Section at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area (www.t-pblo.jp/fiss) Phone: (03) 6809-6200. Send your questions to firstname.lastname@example.org.