I want a divorce in Japan, but what about child custody and my mortgage?

by Yohei Oda

Contributing Writer

Reader “A” wrote in to Lifelines recently on the all-too-familiar subject of divorce, along with a related question about mortgages:

I am a 46-year-old male foreigner who has been married to a Japanese for 13 years. Our relationship has broken down to a level where communication mostly consists of fights. Every day just feels like unending struggle.

For this reason, I am thinking about divorce, but we have three kids (8, 10 and 12 years old). If we bring a divorce case to the court, how is child custody decided?

I purchased a house about five years ago here in Japan using a bank loan. The house is in my name. I have another 30 years to go on my mortgage.

If my wife gets custody of the children, would it be possible that the house stays in my name and I continue paying the monthly mortgage while my wife and children live there until my children become adults?

When deciding which parent will be given custody of children, the most important factor is supposed to be the welfare of the children. Article 820 of the Civil Code says that the custodian has the right and obligation to care for and educate the child for the benefit of that child.

To bring up a child properly, a stable life environment is considered vital. Weighing up the factors that count toward a stable life environment, the judge will consider not only material and economic circumstances but also mental and physical ones.

The will of the child is given paramount importance in cases where the child has turned 15. Between the ages of 10 and 15, the will of the child is supposed to be respected.

In A’s case, as two of his children are already 10 and 12, their opinion will be respected when it comes to deciding who will get custody, but other factors will also be considered, such as the ability of each parent to care for the child, their daily life environment, whether they can call on help from relatives, the emotional attachment between parent and child, parents’ health and economic condition, affection for the children, etc.

In cases where one of the parents has committed adultery, the other parent may claim that this means they are unqualified to care for a child. However, committing adultery is not considered an important factor in deciding which parent is better equipped to care for a child.

If the child in a case is less than 10 years old, the probability that a mother wins custody is over 80 percent. Courts generally think that “skinship” — physical intimacy — with the mother is important for the child’s growth until the age of 10.

In A’s case there are several children involved. In general, it is believed that siblings should live under the same roof with the same parent. Brothers and sisters have a strong mental connection with each other, and separating them can have a detrimental effect on their mental health. A court is likely to decide that your three children should live together with one parent, unless they are already living separately or don’t have a particularly strong relationship with each other.

As for the issue of your house, there should be no problem provided you are willing to continue paying the mortgage that’s in your name, as you suggest you are prepared to do. Your lender won’t be concerned about the prospect of divorce between you and your wife unless you want to change the name on the mortgage to your wife’s.

But at some point, you will have to think about child support. After divorce, the parent without custody must pay child support to the parent who has the children. If your wife is awarded custody, you will have to pay the mortgage as well as child support, which, depending on your financial situation, could be a challenge.

The family court is likely to take your mortgage commitment into account when deciding the level of child support you should pay, but although it may mean you pay a reduced rate, it certainly won’t “cancel out” the obligation to pay child support completely.

Of course, if you and your wife come to a financial agreement that suits the both of you, that would be ideal.

Yohei Oda is an attorney with the Foreign nationals and International Service Section at Tokyo Public Law Office, which handles a wide range of cases involving non-Japanese in the Tokyo area (03-5979-2880; www.t-pblo.jp/fiss) FISS lawyers address legal queries received by Lifelines. Send your questions and other comments to lifelines@japantimes.co.jp.