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Dividing assets: a thorny issue in divorce cases, whether international or domestic

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Special To The Japan Times

A reader wrote to Lifelines recently on the subject of dividing assets upon divorce:

I am a foreigner living in my home country of Australia. My husband is a Japanese national, never worked a single day in Australia for more than 30 years since we were married, moved back to Japan in 2011 and visits only once a year for at most 10 days.

This year, he came to Australia to file for divorce, to take advantage of easy divorce rules in my home country. He also filed for a split in property, claiming that he wants half of everything of mine here, whilst his assets in Japan are hidden.

The point is, Japan is said to have strict rules for this or that, but people like my husband manage to exploit the rules and I, being a foreigner, am not even protected by your law. I would like you to comment on the social norm regarding such a situation.

The first question in these international divorce cases is which court — Japanese or the overseas country’s — has jurisdiction to rule on these issues.

The guiding principle here was set by the Supreme Court Grand Bench on March 25, 1964, which ruled that for Japanese courts to have jurisdiction, a defendant (in this case, the reader) must have a residence in Japan.

The only exceptions to this principle are when the plaintiff (here, the husband) resides in Japan and one of the following conditions applies: 1) the plaintiff was abandoned by the defendant; 2) the whereabouts of the defendant are unknown; or 3) other “equivalent situations.”

The same criteria are understood to apply to matrimonial property issues arising in international divorce cases.

As the reader — the defendant in this case — is residing in Australia, the case is outside a Japanese court’s jurisdiction. This means that a spouse residing in Japan seeking divorce has no choice but to file where the other spouse resides, regardless of whether it is easier for the spouse to divorce under Japanese law or not. Whether a defendant living overseas will be protected in any way by any elements of Japanese law depends on the law of that country.

In Japan, any assets obtained during the marriage are considered to be matrimonial property; inherited assets and those owned before marriage, on the other hand, are not. Generally, matrimonial property is divided equally between the couple, even if one of the partners did not earn any income during the marriage.

As for the problem of nondisclosure of assets, this is an issue not only in international divorce cases but in domestic ones too between all-Japanese couples, as courts here do not have the power to force either of the parties to disclose information about properties they may own.

Although I am not qualified to speak authoritatively on the situation in Australia, this seems to be a thorny issue wherever there are rocky divorces and spouses who have assets they want to shield from their estranged partners — i.e., everywhere. Thus, the same problem would likely arise even if proceedings took place in Japan under Japanese law.

Norimasa Tabata is an attorney with the Foreign nationals and International Service Section at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area (03-5979-2880; www.t-pblo.jp/fiss) FISS lawyers address readers’ queries once a month. Your questions and other comments: lifelines@japantimes.co.jp