How-tos | LIFELINES

Separation may be a factor, but not a clincher, in divorce cases in Japan

by Suhyon Kim

A foreign resident here married to a Japanese citizen sent us some more questions relating to divorce, signing off as “Trapped”:

I want to divorce but my husband does not. (We have been married 18 years and have two junior high school-aged children.) Next year I am moving abroad with my children to put them into international school there. My husband is in agreement with this, but not with the divorce.

My question is, if I remain living abroad for a certain period of time, e.g., five years, can I then come back and file for divorce without his consent? How long does a couple normally have to live apart for divorce to be granted if one partner is against the divorce? Can I file for divorce at the Japanese Embassy overseas, or would I need to come back and do it here?

Trapped, as to your final question, regardless of whether a couple lives apart for a certain period or not, the answer is no — it is not possible to obtain a divorce by filing with a Japanese Embassy abroad. As your husband is Japanese and has an address in this country, the courts here have jurisdiction over the marriage — and under Japanese law, put simply, either an agreement between a couple to divorce or a court judgment admitting the existence of legal grounds for divorce is required.

In the event that you can get your husband’s consent to divorce, simply submitting divorce papers with both parties’ seals (or a signature in the case of the non-Japanese spouse) to the relevant municipal office is all that’s needed to finalize a divorce legally. However, if you are a foreign national, you need to consider other issues.

For example, if your country does not have a law that allows for divorce by mutual consent, such a divorce in Japan might not be recognized in that country. The lack of court involvement in the process may also be an issue that influences recognition by other countries. For these reasons, even when the Japanese spouse’s consent has been given, going through a divorce procedure in court — either mediation or litigation — may be worth considering.

If one partner will not consent to a divorce, the next step for the other partner would be to initiate mediation in family court. In this procedure, court-appointed mediators will try to help the two of you reach an amicable agreement on the conditions for a divorce. These proceedings must take place at the court with jurisdiction over the Japanese partner’s address. In principle, mediation — which usually takes between three and six months — is required before a party can resort to litigation.

If mediation fails to result in an agreement, the next step would be litigation. In court, the plaintiff would have to prove that in their case, there is cause for divorce prescribed in law. Usually, if one party is considering divorce seriously, they would have valid reasons, and in most cases a court would permit a divorce based on these reasons. A long period of separation is one factor that could count toward the case for divorce, although there is no rule requiring such a period. If there are clear reasons why continuing the marital relationship would be difficult, a divorce would be granted without the need for a preliminary separation period.

However, suits are dismissed by courts if they find there are no legal grounds for divorce in a particular case. Also, a suit for divorce is less likely to succeed if the person who created the grounds for divorce in the first place has brought the case. And in that kind of situation, the period of separation would certainly matter.

You mention that you are moving abroad next year. However, as mentioned earlier, a long period of separation by itself will not be enough to establish the legal grounds for divorce. Without your husband’s consent, mediation in court will be necessary, and if the mediation fails, litigation too.

With your two children soon to be living abroad with you, going through all these procedures will not be easy. If you have definitely decided to seek a divorce, it would be best to initiate mediation as soon as possible. Even if all the processes are not finished by the time you go abroad, the list of procedures left to work through when you return would be much shorter, particularly with the help of a Japanese attorney.

Once you have settled into your new home overseas, initiating the entire process from the beginning in Japan, including finding an attorney, might prove to be very tough — and potentially expensive.

Suhyon Kim 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: lifelines@japantimes.co.jp