Here are some questions from a foreign resident here who is married to a Japanese citizen:
“How does a foreigner get a divorce (no children involved) if the spouse refuses to sign a mutual consent decree? What are the fees, if any? What are the ramifications if the foreigner cannot afford the fees (if any)?”
First of all, we should establish which country’s law applies in this case. According to Article 27 of the Law on General Rules for Application of Laws, “If either husband or wife is a Japanese national who has habitual residence in Japan, their divorce shall be governed by Japanese law.”
Under Japanese law, there are three ways you can be granted a divorce: through mutual consent (a so-called kyōgi rikon), court mediation or litigation.
If mutual consent cannot be reached, as in the reader’s case, the next step is to turn to mediation, based on consultations that — hopefully — lead to mutual concessions and a final deal. In principle neither party is allowed to file a petition for divorce with the Family Court before first trying mediation. However, if the court recognizes that the case is not soluble through mediation — for example, when one party’s whereabouts is unknown — the other party can then move straight to litigation.
Either party can file a claim to begin the mediation process, which is called fūfu kankei chōsei chōtei (loosely translated, “mediation for adjustment of the marital relationship”). To do this, he or she must file a petition with the Family Court that has jurisdiction over either the other party’s current residence or another court venue agreed upon by both parties.
Mediation sessions are handled by a panel composed of a judge and two mediators. First, the mediators will ask each party in turn about his/her intentions regarding divorce; then, they will hear the arguments of both parties and provide them with advice on how to reach an amicable divorce agreement. Usually the sessions are held about once a month and last around two hours. If the parties strike a deal through the mediation process, the divorce is effective immediately.
If the other party doesn’t appear for the sessions or an agreement can’t be reached, the panel can end in failure or the petitioner can withdraw the petition. The party seeking the divorce can then file a civil action against their spouse with the Family Court that has jurisdiction over either party’s residence.
In contrast to the mediation sessions, the court will render a binding decision based on whether the case satisfies one or more of the causes for divorce laid out in Japanese law after examining all the issues and evidence.
If one party is not satisfied with the court’s decision, he or she can appeal to the High Court for a review of the Family Court decision. As with mediation, once the judgment is finalized, the divorce is effective immediately. Under Japanese law, the petitioner should then submit a divorce notice to their local city office together with other relevant documents within 10 days of the ruling — or agreement, in the case of mediation — and amend their family registry (koseki). If the petitioner fails to submit the notice within 10 days, the other party can then do it.
Whether you file a petition for mediation or litigation, the court would also deal with related issues such as the distribution of property and any compensation claims. You should keep in mind that all of these proceedings are conducted in Japanese.
This is only a summary of the important features of divorce procedures in Japan. For more specific and detailed information, you should consult with a Japanese lawyer.
As for fees, you will first have to purchase a revenue stamp to cover the filing fee stipulated in the Law on Costs of Civil Procedure. This amount is ¥1,200 for mediation and ¥13,000 to initiate divorce litigation. However, if you file an action not only for divorce but also covering related issues such as compensation, you will have to add additional revenue stamps in proportion to the amount you are claiming.
In addition to revenue stamps, you are required to attach postage stamps to cover the cost of sending notices and other communication to the parties over the course of the mediation or trial. These vary depending on the court, but in the case of the Tokyo Family Court, the initial amount is ¥966 for mediation and ¥6,000 to initiate divorce litigation. You can confirm the details of these amounts by contacting the court.
If you ask a lawyer to handle your mediation sessions or trial, you will of course have to pay their legal fees. In general, this is made up of an initial retainer and a “success fee” to be paid only if you get the result in court you were hoping for. The specifics of those fees are decided between the lawyer and client.
If you cannot afford to pay for judicial fees such as the initial revenue stamp, you can apply to the court for judicial aid, which gives you a grace period in which to find the money, providing you can explain convincingly why you can’t pay now. If the court fails to approve your aid application, you would have to withdraw your petition, meaning your marriage would remain intact.
Regarding fees for legal counsel, as a foreign national with residence status, you can take advantage of legal aid offered by Hoterasu, the Japan Legal Support Center. You can find out more about the conditions and procedures involved in applying for support here: www.houterasu.or.jp/en/about_jlsc/operation2.html.
Mitsushi Edagawa 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 (www.t-pblo.jp/fiss; 03-6809-6200). FISS lawyers address readers’ queries once a month. Your questions and other comments: email@example.com
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