花崗岩のテクスチャ

Family matters~Divorce, Sharing of living expenses, Child care support, Distribution of property, Parental right, Custody right, Visitation, Consolation money, Tort etc.

1. Easy to end relationship

 

While some countries apply strict rule for divorce, procedure in Japan is quite easy. Simply filling in document, then submit it to municipal office only, unless fight between spouse is escalated lawsuit. 

 

  (1) The most popular divorce is called as mutual agreement Divorce (Kyogi Rikon).

       Nearly 90% (87.2% in 2017) of divorce cases have been resolved by Kyogi Rikon.

For other major methods are;

  (2) Divorce by conciliation (Chotei Rikon)

  • Proceed to the adjudication in case both sides don't reach agreement of divorce.

  • Composed of Judge or Adjudication Officer and 2 adjudication commissioners.

 (3) Divorce by family court adjudication (Shinpan Rikon)

  • The judge compulsorily proceed by official authority in case both side doesn't accept adjudication of (2) and the judge considers necessary.

  •  Not popular method.  

(4) Judicial divorce (Saiban Rikon)

  • Filing lawsuit for divorce.

  • The court delivers judgment.

Actually, using adjudication or filing lawsuit take more time, cost and potentially bring further conflict. Therefore, resolving by mutual agreement can be said ideal generally.      

Of course, hiring lawyer for negotiation with counterpart is also ok if discussion by both husband and wife doesn’t work well.

2.  Living expense sharing & child support to end relationship

 (1) Living expense sharing

 

  • Prior to divorce, many couples live separately first. Someone may think this is self-responsibility because of his/her choice. However, even separation term, a couple has a duty to share living expense as duty of maintaining living because status of both is “married”.

  • Amount of the expense varies by couples, no definite amount exists. You can determine the amount by mutual agreement if the amount is discussed outside of the court and agreed.

  • If both side doesn’t reach agreement outside the court, you will go to court for filing family court conciliation (Chotei) first.

  • About claiming the expense retroactively at the family court conciliation, because of feature of the expense, you can claim past expense. However, there is no definite criteria about “since when”, though sharing living expense shall cover all marriage term. At least, the court accepts those expenses after family court conciliation is officially filed in view of clarity. Also, if the one counterpart sends claim to the other, those expenses incurred after the claim are accepted as well in many business practices.

  • Even if past living expenses sharing is not accepted as claim, such fact is also considered through distribution of property, therefore, you can get certain amount of past expenses practically. But it doesn’t mean you can get all, but get appropriate or rational amount by taking all factors into account.

  • In case family court conciliation doesn’t reach resolution, family court conciliation is finished and moved to family court adjudication (Shinpan) automatically.

  • At the adjudication, the judge delivers judgment, but you can file formal objection to high court.

  • Such sharing living expense matter is finalized by family court adjudication, lawsuit is out of scope.

 (2) Child support

  • Similar things with sharing living expense apply. But child support continues after divorce.

  • But living expense shall cover both spouse and children during marriage, child support shall cover children after divorce only, therefore, the amount of child support is usually smaller than living expense.

 (3) Table for calculation  

  • In case of using court, criteria table provided from the court is referred. For determining or judging the amount, not only income but also asset and all factors are taken into account. But primary factor is income of both.

       http://www.courts.go.jp/tokyo-f/vcms_lf/santeihyo.pdf

2.  Distribution of property

(1) Legal right

Distribution of property is legally stipulated right and it means distributing (or clearing up) of jointly created / increased asset at the timing of divorce.

(Article 768 (1) One party to a divorce by agreement may claim a distribution of property from the other party.)

(2) Properties subject to distribution

  • Commonly speaking, all kind of properties such as cash, deposit, real estate, car, pension, insurance, luxury item etc.

  • Debt such as home loan etc. is also included in calculation.

(3) Properties NOT subject to distribution

  • Someone may expect to get a part of his/her own asset. However, as noted, “jointly created/increased property” is needed. Therefore, those assets your spouse owns before marriage is out of scope.

  • Also, those assets gotten by inheritance, gift from family etc. are also excluded.

(4) Distribution ratio

  • ​​Commonly speaking, 50:50 is general, but special reason / contribution is potentially considered.

  • Even housewife, who has no income, such work at home is considered for distribution.

 

4.  Other property claim

(1) Retirement payment

  • Retirement payment

  • Retirement payment has feature of post paid salary, therefore, this is also subject to distribution of property.

  • (In case retirement payment is already paid)

  • Calculation: Amount of retirement payment x Marriage term / Work term

  • (In case not yet paid)

  • Whether included or not is case by case.

  • In case timing of retirement payment is near future & it’s almost certain to be paid, the retirement payment is usually included for distribution of property.

 

(2) Pension splitting

5.  Other claim: Consolation money

  • If you have psychological distress arising from the other spouse’s wrongdoing such as domestic violence, act of unchastity etc.

  • Amount you can get is case-by-case, but commonly speaking, it is considered as 500K JPY~ 3 million JPY.

6. Parental right, Custody right & Right of visitation with the child

(1) Parental right

  • Parental right is rights of caring & educating his/her minor child and managing child’s asset. Right, but it also includes duty.

  • Parental right is composed of

  • Rights of personal supervision of child.

  • Rights of managing child’s asset

  • For divorce by mutual agreement, the couple needs to determine the person who has parental right.  

  • In case that family court conciliation, family court adjudication or lawsuit is filed, person who has parental right is also proposed (for family court conciliation) or determined under court participation.

  • In many cases, mother is designated as a person who has parental authority.

(2) Custody right

(3) Right of visitation with child

  • Even s/he doesn’t have parental right, visitation with child remains as right of parent & child him/herself.

  • This right applies not only to divorce, but to separation period as well.

  • The details of visitation can be determined by mutual agreement. However, this can also be determined via family court conciliation or family court adjudication.

7. Jurisdiction & Governing Law

(1) Jurisdiction

  • Governing Law (Choice of Law) is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions (From Wikipedia).

  • Act on General Rules for Application of Laws and Act on the Law Applicable to the Obligation of Support are relevant law and stipulates details. For example,

#If both of couple are same nationality (outside Japan), governing law is your home  country law.

        #If one of couple is Japanese nationality and both of you are living in Japan, 

       Japanese law applies.

       #In case one of couples already back to his/her home country with child and child

       claims life expense or child support, law of residence primarily applies.

You can take actions by yourself if you can prepare all effectively. However, especially procedure at the court is strict and you must prepare bunch of things prior to the hearing. Furthermore, language barrier between your language and Japanese exists. Therefore, I would like to recommend you knocking on the door of law office for consultation with lawyer.

 

Our office opens after your office hour and weekend flexibly. Even if you are in overseas, hiring lawyer for negotiation with counterpart is possible.

  • Custody right is a part of parental right or rights of personal supervision of child.

  • Usually, a person who has parental authority has custody right, however, the laws & regulations accepts dividing a person who has parental authority and personal supervision.

  • For determining a person who has personal supervision, procedure is similar with determining person who has parental authority.

 

  • Jurisdiction means practical authority granted to a legal body to administer justice within a defined field of responsibility (From Wikipedia).

  • Domestic Relations Case Procedure Act stipulate details. The details are omitted, but the courts in Japan usually have jurisdiction if one of counterparts is living in Japan.

(2) Governing law (Choice of law)

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