花崗岩のテクスチャ

Jurisdiction & governing law

1. Jurisdiction 

 Simply saying, jurisdiction means whether the court in Japan has a right to deliver judgment, to conduct adjudication (Shimpan) or conciliation (Chotei) in this context.

 Following guidance is about major family matters such as divorce and issues occurred with divorce. Roughly saying, you can file court actions if your life base has or ever had in Japan. This is also same even non-Japanese couple.

 

 *Please be informed that the guidance below is summary basis, so if you want to know more details, see articles of the laws.

(1) Divorce

  • Even if the case that the one of two or both of couple is (are) foreign nationals, the court in Japan usually has the jurisdiction.

  • According to Personal Status Litigation Act (PSLA), the court in Japan has jurisdiction in following cases.

  1. Address of defendant is in Japan

  2. Both of couple have Japanese nationality

  3. Last and common address for the couple is in Japan and address of plaintiff is in Japan

  4. Other exceptional cases in view of fairness, appropriateness and quickness.

  • In Japan, conciliation (Chotei) is required prior to filing lawsuit for divorce and you have jurisdiction for conciliation if your situation applies one of ① to ④

  • Also, please see website link below.

​       http://www.moj.go.jp/content/001286812.pdf

(2) Parental right & Custody right 

  • According to Domestic Relations Case Procedure Act (DRCP), the courts in Japan have jurisdiction if address of children is in Japan.  

(3) Supporting duty arising from personal status

  • According to DRCP, the courts in Japan have jurisdiction if address of obligor or person entitled to support is in Japan.

(4) Distribution of property

According to DRCP, the court in Japan have jurisdiction for following cases.

  • Filing by ex-husband / ex-wife to the other and address of counterpart is in Japan.

  • Both ex-husband & ex-wife have Japanese nationality.

  • Address of claimant and last common address with ex-counterpart is in Japan

  • Address of clamant is in Japan and location of counterpart is unknown, judgment in foreign country is not in effective in Japan etc.   

(5) Exception

2.Governing Law

(1) Divorce

According to AGRAL

  • Governed by the national law of the husband and wife if their national law is the same

  • The law of the habitual residence of the husband and wife if their law of habitual residence of the husband and wife if their law of the habitual residence is the same

  • Governed by the law of the place most closely connected with the husband and wife where neither of these is the case,

  • If either husband or wife is a Japanese national who has habitual residence in Japan, their divorce shall be governed by Japanese law.

(2) Parental right & Custody right 

According to AGRAL

  • Governed by the child's national law if it is the same as the national law of either the father or mother generally.

  • Governed by the law of the child's habitual residence for other cases.

(National law will be apply if s/he has 2 or more nationalities and one of those nationalities is Japanese.)

(3) Supporting duty arising from personal status

  • Governed by the law of the habitual residence of the support oblige

  • Governed by the law of their common nationality if the support obligee is unable, under the law of his/her habitual residence, to obtain support from the support

(4) Distribution of property

Considered as same as divorce.

According to PSLA, in case of filing divorce and the court accepts it, the court in Japan also has jurisdiction for parental right & custody right, supporting duty and distribution of property etc.

Governing Law means law which is govern to the case, or which country’s law is applied to the case in this context. Roughly saying, the laws of the closest to the matter is applied.

 The rules of governing law are stipulated by Act on General Rules for Application of Laws (AGRAL) and Act on the Law Applicable to the Obligation of Support (ALAOS) for support related matters.

Please note that jurisdiction and governing law are different matter and the court in Japan judges by referring foreign law if the governing law is NOT Japan.

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