In this column, Lifelines addresses questions received about what is unfortunately a common concern among readers: divorce.
I am a permanent resident in Japan. Recently I got a divorce from my spouse, who is a Japanese citizen. Will I lose my status of residence?
If your status of residence (often referred to as your “visa” or “visa status”) is based on your marital situation, then getting divorced directly affects that status. In such a case, you must report the divorce to the Immigration Bureau, and if you do not change your status of residence within a certain period, you may lose it.
Moreover, even if you are not divorced yet, mere separation can also result in the cancelation of status of residence, because the term “spouse” in the context of immigration is not equal to its strict legal meaning. A couple who are separated may be regarded as not having a genuine marriage, which is a condition for a spouse visa to be granted, so you might want to give a supplemental explanation on why you are living separately, or try to change your status of residence.
On the other hand, if your visa is not based on your marital status, whether you get divorce or not does not affect your current status. For example, a permanent resident can get a divorce with no change of status of residence.
Immigration aside, what is the implication of separation before divorce?
It happens quite frequently that a married couple starts living separately, either with or without mutual agreement, before they get divorced. There seems to be a common misunderstanding that with certain years of separation you can be granted divorce, but under Japanese law there is no provision that says separation can be a ground for divorce, although it may be among the factors considered.
Separation itself does not usually affect the amount of possible compensation, because grounds for compensation generally have normally nothing to do with separation (e.g. adultery). Separation, however, may affect the division of property when you get a divorce, as the division of property is usually calculated based on the situation at the time of separation, not of divorce.
How does the division of property work under Japanese law?
Although the Civil Code does not clearly say that property should be divided 50-50 upon divorce, it is usually the case that property acquired during the course of marriage is split equally. Importantly, this rule applies no matter whose name is on the property. You could argue that in your particular case, the 50-50 the rule should not apply, but having bought the property from your own salary won’t be enough to override the 50-50 principle, because earning salary itself is regarded as the result of “the cooperation of both parties” in Japanese law.
Typical exceptions would be where a partner had acquired the property completely independently of the marriage (e.g. by purchasing it before marriage or inheriting it from a parent, etc.). These properties are excluded from the calculation of division of property. The rule about distribution upon divorce also may not apply if the couple entered into a prenuptial contract regarding property, but these are rare in Japan.
Please note that the explanations above are based on Japanese law and practice. Japanese law may not be applicable in international cases such as divorce between non-Japanese citizens.
Kosuke Oie 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: email@example.com
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