In any divorce involving a party who is a Japanese national or resident, it is important to understand the basics of Japanese family law. Japanese divorce can be an attractive alternative to U.S. divorce in some cases, and the Japanese legal system can have a major impact on the enforcement of U.S. divorce awards.
When Japanese Divorce Laws Can Apply
Under the Act on General Rules for Application of Laws (Ho no tekiyo ni kan suru tsusoku ho), Japan’s conflict of laws statute, Japanese divorce laws can apply in the following situations:
- If either spouse is a Japanese national habitually residing in Japan.
- If both spouses are Japanese nationals, regardless of their residence.
- If the spouses are of different nationalities, but both habitually reside in Japan.
- If Japan is the place most closely connected with both spouses.
In many of these cases, it is possible for the parties to proceed with a divorce in another jurisdiction. For example, two Japanese individuals who are separated and living in New York and Maryland, respectively, may conduct a divorce under Japanese law, New York law, or Maryland law. This can make forum selection a critical issue for both parties.
Key Distinctions Between Japanese Divorce and U.S. Divorce
Procedure: In most U.S. states, divorce is always a judicial procedure and requires the parties to go to court. Under Japanese law, it is possible to conduct a consensual divorce (kyogi rikon) entirely out of court by submitting a short-form divorce notification (rikon todoke) to a municipal government office in Japan, or (if both parties are Japanese nationals) to a Japanese consular post overseas.
Damages: Japanese courts may award a consolation payment (isha ryo) to a “wronged” spouse in a divorce, typically a one-time payment in a range between $5,000 and $30,000. Many U.S. states do not award such payments except in cases of torts such as domestic violence. However, in such cases, a U.S. court may award significantly higher damages than a Japanese court, and the option of a jury trial may be available.
Alimony and child support: Japanese courts grant child support payments but only grant alimony while the parties are still married (not post-divorce).
Child custody: Japan only recognizes sole/exclusive child custody, while many U.S. divorces result in a shared child custody arrangement that can be subject to modification for years after the divorce. In either country, the determination is supposed to be based on the best interests of the child, but courts are often said to be biased toward keeping the children with a local parent.
Evidence: U.S. courts have more robust procedures for collecting evidence regarding disputed matters such as finances and child rearing ability; for example, subpoenaing witnesses and demanding production of documents. Japanese courts have much less power to compel testimony or evidence production, and it is difficult to compel testimony or evidence production from a person in Japan even for a proceeding in the U.S.
Language barrier: This is obvious but cannot be ignored: all Japanese divorce procedures are conducted in the Japanese language, while all American divorce procedures are conducted in the English language. Interpreters and bilingual attorneys are available in both countries, but language can still be a significant barrier to participation and to presentation of evidence.
Special Considerations for Cross-Border Divorces Involving Parties in Japan
Family registry: Marriages and divorces of Japanese nationals are recorded in a central family registry (koseki), while there is no centralized registry of marriages or divorces in the U.S. As a result, a Japanese individual who is a party to a divorce in the U.S. may appear to be married in Japanese records until the divorce is officially registered through a Japanese consular post overseas. (Conversely, a Japanese individual who was married in the U.S. may appear to be unmarried in Japanese records.)
Service of process: Japan does not allow service of process by mail. This can make it very time-consuming to start any action against a Japanese resident in a U.S. court. This issue is explained further in this article.
Collection: It is relatively difficult to collect child support and alimony payments from a person in Japan (regardless of which country’s courts awarded the payments), while the U.S. has robust enforcement mechanisms that include wage garnishment and potential criminal penalties for non-payment.
Custody orders: As stated above, Japan only recognizes sole/exclusive child custody, while many U.S. divorces result in a shared custody arrangement. Japanese authorities do not generally enforce U.S. custody orders (despite Japan having recently signed the Hague Convention on Child Abduction), making it very risky to allow children covered by such an order to travel to Japan. It can even be impossible to enforce a visitation order granted by a Japanese court.