Grounds for Divorce

Under Japanese law, a husband and wife can get divorced by mutual agreement in accordance with Article 763 of the CC.

The requirements of the judgment divorce under Article 770(1) of the Civil Code (CC) are as follows:

• a spouse has committed an unchaste act;
• a spouse was abandoned by the other spouse in bad faith;
• it has not been clear whether a spouse is dead or alive for at least three years;
• a spouse is suffering from severe mental illness and there is no prospect of recovery; or
• there is any other grave cause making it difficult to continue the marriage.

The final requirement listed above (“any other grave caused”) is interpreted to mean the same as “irrecoverable break-up of the marriage”. Factors that determine the existence of this ground include domestic violence, serious insult, failure to work despite the ability to work, wasteful spending habits, crime, conflict with the spouse’s family, and difference in personal characteristics. The length of the period of separation is considered one of the most important factors in establishing this requirement.

In Japan, it was once debated whether a spouse who was to blame for such an irrecoverable break-down of the marriage could file a divorce lawsuit against their spouse.

The Supreme Court’s 2 September 1987 decision held that a divorce may be requested in the following cases.

• the period of separation is particularly long compared to the period of cohabitation, taking into account the age of the parties;
• there are no dependent children; and
• there are no outstanding circumstances, particularly against social justice or because of the spouse’s opposition to the divorce, that would place the couple in extremely difficult mental, social, or economic circumstances upon divorce.

Same-Sex Couples and/or Civil Partners

The issue of same-sex spouses and/or civil partners is currently a very sensitive topic in Japan. Technically speaking, same-sex couples may not legally marry in Japan and therefore their separation is not recognised as divorce.

The laws of divorce could, however, apply to such a separation by mutatis mutandis application of the CC and in that case, the same grounds, mutatis mutandis, apply to same-sex and/or civil partners. In this regard, some practitioners in Japan believe Article 768 of the CC for married parties should be applied, mutatis mutandis, to same-sex couples intending to live forever as a couple. In that case, a partner may have a financial claim against the other if the couple separate.

On 18 September 2019, an epoch-making judgment was rendered by the Maoka branch of Utsunomia District Court. The court admitted a mental damage claim by a woman against her female partner for sexual intercourse with a third party. The court pointed out that the relationship of female couples is similar to that of a male and female couple who are not officially married by submitting the report to the ward office in accordance with Article 739(1) of the CC. Based on this precedent, which is not a binding authority in Japan, a damage claim against a woman from her female partner for divorce/separation due to sexual intercourse with a third party could be admissible by mutatis mutandis application of Article 770 of the CC.

In recent years, following the Utsunomia District Court judgment, litigation regarding same-sex couples has increased significantly.

• In 2019, 13 same-sex couples filed lawsuits against the government in local courts around Japan seeking the right to same-sex marriage.
• In March 2021, the Sapporo District Court ruled that it was unconstitutional not to recognise same-sex marriages, becoming the first Japanese court to defend same-sex marriage.
• In June 2022, the Osaka District Court ruled that “the refusal to recognise same-sex marriages does not violate Article 14 of the Constitution”, which provides for equality under law.
• In November 2022, the Tokyo District Court ruled that failure to make appropriate legislation to ensure the same sex partners can be treated equally to the different sex partner was is not unconstitutional not to recognise same-sex marriages, but did violate Article 14 (2) of the Constitution”.
• The Nagoya District Court in May 2023 ruled that same-sex marriage was not unconstitutional, the second in Japan after Sapporo.
• On 8 June 2023, the Fukuoka High Court dismissed a claim for state compensation against the government for not accepting the marriage certificate (the “Freedom of Marriage for All” lawsuit).
• On 11 September 2023, the Sapporo District Court dismissed a claim for state compensation against the government for not recognising the support allowance for same-sex partners, but held that the law was based on a general interpretation consistent with the current civil law and that the benefit guarantee was based on public funds.

To avoid litigation, the Japanese government and municipal governments in Japan have begun to consider this issue and are trying to introduce new laws and regulations.

On 1 November 2022, Tokyo City began operating a partnership system, but this does not extend to full marriage rights, including inheritance rights. The Diet has long debated legislation aimed at promoting understanding of LGBT+ people, and on 9 June 2023, the House of Representatives Cabinet Committee passed the LGBT Understanding Promotion Bill.

In sum, the Japanese public and some judges seems to be positive about the issue of same-sex marriage; however, the government and most judges are still negative.

Process and Timeline

Under Article 763 of the CC, a husband and wife may divorce by mutual agreement without waiting for certain period of separation.

The only requirement for a divorce by mutual consent is that both spouses notify their consent to divorce (formal requirements for divorce) with the competent authority, such as the city hall where they filed the marriage. With the exception of the determination of the custodian of the children upon divorce (Article 819, CC), there is no requirement for agreement on property division or payment of child support by the parent who does not have custody. There is also the alternative of divorce through litigation.

Please note that the family court of Japan believes that, in family matters, conciliation should be attempted first, and divorce and other matters can be conciliated by the family court in accordance with Articles 244, 257 and 268 of the Domestic Relations Case Procedure Act (DRCPA). If conciliation under Articles 284, 285, 286 and 287 of the DRCPA is not successful, the parties to the divorce could seek judgment divorce, to be rendered by a judge, one of the conciliation panels of the conciliation. If the parties still do not want to follow the judgment, they may file a divorce litigation/lawsuit.

There is no waiting period as long as the filing of the divorce litigation meets the grounds for legal divorce in accordance with Article 763 of the CC. In cases where there is a serious dispute regarding divorce between parties, it often takes more than a year for the court to render its judgment.

In particular, the appointment of the sole custodian of a child and the visiting rights of the other parent are a serious issue, although the amount of child support would be determined based on the calculation sheets provided by the family courts. Asset distribution is also sometimes a complicated issue, especially between rich international couples whose assets are located in and outside of Japan and therefore involve various legal and tax issues.

Rules of Service

Under the DRCPA there is no statutory formality in relation to the service of divorce proceedings. Although the provisions on service are applied mutatis mutandis, in the DRCPA there are no actual provisions on service and it is left to the discretion of the court.

In other words, at the discretion of the court, it is possible to proceed with the entire process from the petition for litigation or conciliation to the issuance of the judgment and the written judgment, without serving the other party. Documents may be sent by ordinary mail without following strict procedures, and the process will be completed even if the court does not confirm that the person received the documents in person.

The intention of the legislature may be to allow the court to make decisions flexibly. However, it is questionable from a lawyer’s point of view whether the procedure can proceed without strict service of process.

Religious Marriages and Divorces

In general, religious conflict is not seriously involved in marriage and divorce between Japanese couples. The marriage and divorce of international couples in Japan is strongly related to religion and therefore which party’s law is the governing law of the marriage and divorce is a significant issue in the court of Japan.

Other Processes

Under Japanese law, separation is not allowed but the nullification of marriage is allowed. Article 742 of the CC stipulates that marriage shall be void only in the following cases:

• if one of the parties had no intention to marry due to mistaken identity or other cause; or
• if the parties do not lodge notification of the marriage, provided, however, that the effect of the marriage shall not be prevented merely because notification was not given in the form prescribed in paragraph (2) of Article 739 of the CC.

If the marriage is declared null, the parties can file a lawsuit or file a petition for an adjudication of domestic relations.

Jurisdictional Grounds for Divorce

Under the laws of Japan, not only divorce but all legal aspects of familial relationships, including financial issues associated with divorce such as asset distribution, are governed by the Personal Status Litigation Act (PSLA).

Under Article 3-2 of the PSLA as amended in 2018, if any of the following conditions apply, Japan will be considered the appropriate jurisdiction:

• the action is being filed against one party to a familial relationship and that party is domiciled in Japan (or resides in Japan, if the party has no domicile or the party’s domicile is unknown);
• the action is being filed against both parties to a familial relationship and either party or both parties are domiciled in Japan (or reside in Japan, if they have no domicile or their domiciles are unknown);
• the action is being filed by one party to a familial relationship and the other party was domiciled in Japan at the time of their death;
• both parties to a familial relationship have died and either party or both parties were domiciled in Japan at the time of their deaths;
• both parties to a familial relationship are Japanese nationals (including if either or both were Japanese nationals at the time of their death);
• the action is being filed by one party to a familial relationship who is domiciled in Japan, and the parties to the familial relationship were last domiciled together in Japan; or
• the action is being filed by one party to a familial relationship who is domiciled in Japan and there are found to be special circumstances because of which conducting a trial and reaching a judicial decision in a Japanese court will help achieve equity between the parties or ensure a fair and speedy trial, such as if the other party is missing or if the final and binding judicial decision on an action concerning the same familial relationship that was filed in the country where the other party is domiciled is not effective in Japan.

As noted in 1.1 Grounds, Timeline, Service and Process, the family court of Japan believes that, in family matters, conciliation should be attempted first. Under the DRCPA, conciliation is subject not only to the jurisdiction of the family court having jurisdiction over the place of domicile of a respondent but also a family court determined by agreement between the parties.

Please also note that divorce litigation is not subject to the jurisdiction of the family court determined by agreement between the parties under the PSLA.

Same-sex relationships

As discussed in 1.1 Grounds, Timeline, Service and Process, legally, same-sex couples are not allowed to marry. In this regard, technically speaking, there is no legal same-sex divorce. The laws of divorce could, however, apply to such a separation by mutatis mutandis application of the CC and in that case, the above jurisdictional grounds would also be applicable to international same-sex spouse/and or civil partner divorce/separation proceedings.

Domicile, Residence and Nationality

There is no definition of domicile or residence under the CC.

Article 23 of the CC, however, refers to the domicile and residence as follows.

• In cases where a domicile is not known, a residence shall be deemed to be a domicile.
• A person who has no domicile in Japan, whether they are a Japanese national or a foreign national, shall regard their place of residence in Japan as their other domicile. However, this shall not apply where the law of the domicile of the person is to be applied in accordance with the law that establishes the applicable law.

The term “domicile” in general refers to a person’s “home of residence” and is considered in light of the totality of objective facts, such as the person’s occupation, the residence of his or her spouse or relatives, and the location of assets owned by the person.

On the other hand, “residence” in general refers to the place where a person who has no “domicile” has continuously resided for a considerable period of time.

Nationality is, in general, not related to the determination of the jurisdiction of the litigation or conciliation.

Please note that the nationality of the parties is sometimes critical to determine the governing law of the divorce or custody under the laws of Japan.

According to the Act on General Rules for Application of Laws (AGRAL), if a person has multiple nationalities, the law of Japan shall be the governing law if the person has Japanese nationality, and in the case of a person having only foreign nationality, the law of the country in which the person has his or her habitual residence, if such a country exists, or the law of a country more closely related to the person if no such country exists in accordance with Article 38(1) of AGRAL.

In the case of stateless persons, the law of their habitual residence shall be the law of their home country pursuant to Article 38(2) of the AGRAL. If the country of nationality is a country of non-uniform law, it is also necessary to determine the law of the home country, and if there are rules of that country, that shall be the law of the home country of the person concerned, or if not, the law of the region most closely related to the person concerned under Article 38(3) of the AGRAL.

In determining the requirement that the home country law be the same, such as Article 25 of the same law, etc, the home country law is identified individually then determined whether it is the same or not.

For example, even if both husband and wife are Americans, if the laws of the law of the State of New York is determined to be the home law for the husband and the law of the State of New Jersey is determined to be the home law for the wife then, according to Article 38(3) of AGRAL, their home laws are not the same, and if both spouses have their habitual residence in Japan, Japanese law will be applied to their marital dispute.

Contesting Jurisdiction and Applying to Stay Proceedings

The defendant may contest jurisdiction but there is no automatic stay of proceeding of divorce litigation/conciliation under the laws of Japan. In practice, one party may apply to stay proceedings in order to pursue divorce proceedings in a foreign jurisdiction with the consent of the other.

Suppose a Japanese wife leaves Japan for the United State with her children. Her husband, who lives in Japan, files for divorce and appointment of sole custody of the child to the family court of Japan. The wife also files for divorce in the United States and the husband files for return of the child in Japan under the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”). In this case, the wife may request a stay of the divorce and appointment of sole custody litigation until the child return case under the Hague Convention is decided.

This is because the location of the divorce and child custody dispute is highly related to the location of the child ultimately decided under the Hague Convention and dual law suits in the United States and Japan would not be in the best interest of the child.

As mentioned in 1.2 Choice of Jurisdiction, not only divorce but all other familial relationships, including financial issues associated with divorce, such as asset distribution, are governed by the PSLA and the grounds for jurisdiction for commencing financial proceedings are the same as the grounds for jurisdiction for commencing divorce.

In addition, the court that issued the divorce order shall have jurisdiction over the claim for distribution of properties in the divorce judgment under Article 32 of the PSLA.

A party can contest jurisdiction (see 1.2 Choice of Jurisdiction).

Financial Claims Relating to a Foreign Divorce

As long as the foreign divorce is valid and enforceable, the courts of Japan can hear the financial claims associated with it.

Foreign divorce is valid and enforceable in Japan if a foreign divorce is recognised where a foreign divorce judgment is final and meets all the following conditions provided by Article 118 of the Code of Civil Procedure (CCP).

Jurisdiction

The jurisdiction of a foreign court must be recognised under laws or regulations or conventions or treaties. In determining if the foreign court has jurisdiction over the case, the same jurisdiction rule adopted by the court of Japan shall apply. For example, the judgment of the Tokyo Family Court of 11 September 2007 refused to recognise a divorce order of the Australian court as both parties had domicile in Japan.

Service

The defeated defendant must have received service (excluding service by publication or any other service similar thereto) of a summons or order necessary for the commencement of the suit, or must have appeared without receiving such service. To meet this condition, international service from a foreign country to a defendant in Japan shall meet the requirements in compliance with the treaty on service if both Japan and the foreign country are member states of the treaty.

Public policy considerations

The content of the judgment and the court proceedings must not be contrary to public policy in Japan. The aforesaid Tokyo Family Court judgment also refused to recognise a divorce order of the Australian court as the judgment was contrary to public policy in Japan. In this case, both the husband and wife had domicile in Japan and the plaintiff (husband) was solely responsible for the irrecoverable break-up of the marriage and could not file for a divorce in Japan.

Mutual assurance

In practice, no foreign judgment has refused to recognise a foreign court divorce judgment applying this case. The monetary judgment rendered by the People’s Republic of China (PRC) is not recognised under this clause but divorce judgments of the PRC are recognised under this clause.

The service requirements in financial proceedings are the same as the service requirements in divorce proceedings. See 1.1 Grounds, Timeline, Service and Process (Rules of Service).

The process and timeline for financial proceedings are same as the process and timeline for divorce. See 1.1 Grounds, Timeline, Service and Process (Process and Timeline).

With respect to orders for the distribution of property upon divorce, the parties to the divorce may agree on how to distribute the matrimonial property. If both parties fail to agree on the method of distribution of matrimonial property, the family court shall determine whether to make a distribution, and the amount and method of that distribution, taking into account the amount of property obtained through the co-operation of both parties and all other circumstances (Article 768(3), CC).

Distribution of property under Japanese law is generally understood to cover the following three requirements:

• distribution of matrimonial properties that are acquired during marriage;
• compensation for the emotional damage caused by divorce; and
• post-divorce maintenance.

With regard to property acquired during marriage, except for special cases, the levels of contribution of the parties are assumed to be equal.

If a party is responsible for the break-down of the marriage, the other party can claim compensation for the emotional damage caused by the divorce in accordance with Article 709 of the CC. This claim can be included in the claim of distribution of property.

With regard to post-divorce maintenance, in making an order for the distribution of property, the court can only consider this requirement when one of the parties cannot support themselves following the divorce, even if one party receives property from the other party as outlined in the first two requirements.

Matrimonial Regimes

Under Article 760 of the CC, the husband and the wife shall share marital costs during the marriage. This marital cost-sharing obligation is terminated upon the divorce. In accordance with Article 762(1) of the CC, the assets obtained or increased during marriage are assumed to be the assets of both husband and wife. The husband and wife may change the above by mutual agreement before the marriage according to Article 755 of the CC. Upon the divorce, the assets owned by the husband and wife shall be divided in accordance with Article 768 of the CC.

Trusts

The family courts do not recognise the concept of trusts as there is no special concept of family trusts under Japanese law.

Maintenance Orders

Under the law of Japan, maintenance of the spouse, other than the distribution of property upon divorce, is merely supplemental. In other words, one spouse may be required to support the other only if the distribution of property upon the divorce is not sufficient to support the living of the other. The other spouse is, in general, not entitled to receive financial support or alimony other than the distribution of the assets upon the divorce under the laws of Japan.

Interim Maintenance

It is possible for a party to apply for marital support until the parties get divorced. In particular, marital support is payable by the husband to a wife with children, including child support in addition to the support of the life of the wife. The family court of Japan would issue the order to the husband to pay the marital support to the wife with the child of the husband. In general, the husband in these circumstances is reluctant to pay the marital support to the wife until they get divorced.

Ongoing Maintenance

Article 768(3) of the Civil Code gives the court wide discretionary powers to make an order for distribution of properties providing that “the family court shall determine whether to make a distribution, and the amount and method of that distribution, taking into account the amount of property obtained through the co-operation of both parties and all other circumstances.”

See 2.3 Division of Assets for discussion of asset distribution. In Japan, spousal maintenance includes child maintenance paid by the non-resident parent. The amount is calculated based on the annual incomes of the husband and the wife. In the family court practice, a simplified chart is generally used for calculation.

Under Japanese law, marital agreements are concluded only before marriage (Article 758, CC). Though marital agreements are not popular in Japan, the agreements are enforceable as long as the agreements are not against public policy (Article 90, CC). However, if a party has entered into a contract that departs from the statutory property system, the contract may not be asserted against the successor in title of the husband or wife, or a third party unless registered prior to notification of marriage (Article 756, CC). Also, a foreign agreement on marital property concluded under a foreign law may be asserted against a third party when it is registered in Japan (Article 26(4), AGRAL).

With respect to cohabitation, there is no provision in relation to the division of property for unmarried cohabitees under the laws of Japan, including the CC.

However, Article 768 of the CC for married parties is applied mutatis mutandis to de facto spouses who live together with the intention of getting married but who have not yet filed the formal registration in accordance with case law. Therefore, long-time de facto spouses would most likely have financial claims on each other should they separate.

To enforce a financial order, the creditor has to file a suit in a district court seeking an execution judgment under Article 24 of the Civil Execution Act.       

If a foreign wife files a divorce lawsuit against a Japanese husband in a foreign court and obtains a favourable judgment in the foreign court, the foreign court’s judgment can be enforced in Japan by obtaining a judgment of execution of the foreign court’s judgment in a Japanese court.

In order for a foreign court judgment to be enforceable in Japan, the following conditions must be met under Article 118 of the Code of Civil Procedure (CCP):

• the Japanese husband must have received proper service of process;
• the jurisdiction of the foreign court must be recognised under the laws or regulations or conventions or treaties – in determining whether the foreign court has jurisdiction over the case, the same jurisdiction rules adopted by the court of Japan shall apply;
• the defeated defendant must have received service of a summons or order necessary for the commencement of the suit, or must have appeared without receiving such service;
• the content of the judgment and the court proceeding must not be contrary to public policy in Japan; and
• mutual assurance must exist.

With regard to proper service, based on past judicial precedents, it is considered that if a treaty on judicial co-operation, such as the Hague Convention, has been concluded between Japan and the country to which the foreign court that issued the judgment belongs, service procedures must be carried out in accordance with the treaty, and the service documents must be translated into Japanese.

Regarding mutual assurances, there are past court decisions in which the State of New York, the Federal Republic of Germany, the United Kingdom, Singapore, and other countries were judged to have mutual assurances, while there are court decisions in which the People’s Republic of China was judged to have no mutual assurances.

Please note that judgments of foreign courts can be enforced in Japan, and in such cases, there is no opportunity to contest the content of the foreign court judgment itself in Japan.

In general, mediation is not held in public and the media and press are not able to report on financial cases unless a party to the dispute disclose the terms and conditions of the divorce. Divorce litigation is held in public and judgment is accessible to the media and press. The parties, however, often settle the case and the financial terms and conditions of a divorce, such as the amount of the asset distribution, are not accessible by the media and press in general.

ADR in Japan

The “Law Concerning the Promotion of the Use of Alternative Dispute Resolution (ADR),” which came into effect on 1 April 2007, defines ADR as “a procedure in which an impartial third party is involved to resolve civil disputes between parties seeking to settle their disputes without going through litigation.

Some of these dispute resolution procedures are conducted by private entities, and ADR by private entities is referred to as “private ADR”. Users of a private ADR provider that has been certified by the Minister of Justice are granted certain legal effects such as the interruption of the statute of limitations. This system is designed to prevent the completion of the statute of limitations on the rights held by the parties (extinguishment of rights) during the course of discussions in private ADR.

There are various types of private ADR service providers, but the presence or absence of certification by the Minister of Justice is one of the guidelines for selecting a reliable service provider.

A business operator certified by the Minister of Justice will have specifically met the following criteria.

• securing professional human resources so that it can appoint a specialist appropriate to the content of the dispute as a mediator;
• putting in place a system to protect the privacy and trade secrets of the parties involved;
• putting in place a system to prevent persons who have an interest in the dispute serving as mediators; and
• explaining to the parties, before they use the procedures, the matters specified by the Ministry of Justice, such as the details of the procedures and costs.

A list of certified service providers is published on the Ministry of Justice’s “Kaiketsu Support (Certified Dispute Resolution Service)” website.

Typical Stages of a Private ADR Divorce

Although there are slight differences among service providers, the general flow of the procedure is as follows:

• submitting a “petition” to the service provider
• the business confirms with the other party whether or not it will agree to mediation;
• if the other party agrees, submitting a “request for conciliation;
• the date of the first conciliation session is decided and both parties are notified;
• both parties attend the conciliation and hold a discussion for one to two hours under the guidance of the conciliator; and
• if the parties agree to mediation, a mediation agreement is prepared.

Unlike court proceedings, which can be forced to involve the other party even if the other party does not agree, mediation is basically a procedure that can only be completed with the agreement of the other party.

If mediation is unsuccessful and the parties decide to go to divorce court, a certificate of unsuccessful conciliation will be issued by the mediator.

Mediation and ADR: Advantages and Disadvantages

Services are available even on weekends, national holidays, and weekday evenings

One of the advantages of proceeding with divorce through private ADR is that it is available even on weekends, holidays, and weekday evenings. Court divorce mediation is only available during the daytime on weekdays. Moreover, each session often takes more than two hours. This means that time must be taken off from work, which is a heavy burden. For those who are busy with work, the flexible schedule of private ADR may be quite helpful.

Early resolution can be expected compared to the court

As a general trend, private ADR is expected to resolve cases earlier than the court. Although it varies from institution to institution, it is often settled in about three months. As mentioned above, court mediation is available only during weekdays. In addition, there are long vacations during summer vacation and year-end and New Year holidays. Basically, the procedure is held once a month, but during the long vacations, it may be extended to once every two months.

Going through private ADR does not always lead to divorce proceedings

There is a rule that divorce court proceedings must first be preceded by divorce mediation in the family court. This is called the “pre-conciliation principle” (Article 257 of the DRCPA). As an exception, the first sentence of Article 27 of the Act on Promotion of Use of Alternative Dispute Resolution (the “ADR Law”) states that “the provisions of Article 257 of the Domestic Affairs Case Procedures Law (pre-conciliation principle) shall not apply” when divorce ADR is conducted at an ADR organisation certified by the Minister of Justice. This means that if the private ADR ends in failure, the case can be transferred directly to divorce proceedings.

However, the second sentence of the same article states, “In this case, the court in charge of the case may, if it deems appropriate, refer the case to mediation on its own authority.” In other words, in cases that have gone through private ADR, it does not mean that a divorce suit cannot be filed without divorce mediation, but if the judge (the “receiving court”) thinks that it would be better for the resolution of the issue to take measures such as incorporating the opinions of experts, the judge may, at their own discretion, transfer the case to mediation. Note that it is up to the judge to decide whether or not court mediation is necessary.

A private ADR agreement cannot be enforced

In a court divorce mediation, when both parties agree on the terms of the divorce, the content of the agreement is compiled into a conciliation record. The conciliation record has the same effect (enforceability) as a final and binding judgment, which means that if the other party breaks the promise to pay child support or alimony, the court can enforce against the salary, bank deposit, etc. On the other hand, an agreement reached through private ADR is not enforceable.

As mentioned in 1.2 Choice of Jurisdiction, not only divorce but all other familial relationships, including parental rights and custodial rights over children, are governed by the PSLA and the grounds for jurisdiction for commencing financial proceedings are the same as the grounds for jurisdiction for commencing divorce.

Living/Contact Arrangements

Deciding child custody

The critical difference between the law of Japan and many other countries in the Global North, such as the USA or UK, is that the sole parental right-holder is appointed upon the divorce and the sole custodian is appointed upon the separation (before the divorce) under the law and practice in Japan.

Upon the divorce, the court shall decide the sole parental right-holder if the parties to the divorce fail to determine who is to become the sole parental authority in accordance with Articles 819(1) to (5) of the CC.

Upon the determination of the sole parental right-holder, the court would consider (i) who is the primary caregiver of the children, (ii) how to maintain the continuity of the children’s family and school life, and (iii) the children’s own will.

The appointment of sole parental authority system has been highly criticised and the Japanese government is trying to introduce a joint parental authority system in spite of the strong opposition against this reform in some quarters.

On 30 January 2024, the Family Law Subcommittee of the Legislative Council of Japan compiled a draft outline of the Family Law Subcommittee’s proposal to introduce “joint parental rights”, which would allow both the father and mother to have parental rights over their children after divorce. The Ministry of Justice intends to submit the proposed amendment to the CC and other laws to the current Diet session for enactment. The Executive Committee for Protecting Children from “Joint Parental Rights after Divorce” issued a statement on the same day strongly opposing the draft outline.

According to the draft outline, in addition to the current “sole parental rights,” in which one of the father and mother has custody of the children after divorce, “joint parental rights” will be introduced to allow both the father and mother to have parental rights after divorce. The parents will then decide through consultation whether to have joint or sole custody, and if they cannot agree, the family court will determine who will have parental rights.

After sole custody has been awarded

A change of the primary caregiver of the child(ren) would cause a significant mental or psychological impact. The court is therefore hesitant to change the primary caregiver of the children unless there are legitimate reasons to do so, such as in cases where the primary caregiver is abusive or an alcoholic.

It is unclear whether a primary caregiver who is un-cooperative with regard to visitation by their spouse would lose child custody, even though visitations are very important for the mental development of the children.

In the case of a dispute between a wife and husband, it is common for a housewife to leave home with her children without notice and travel to her parents’ home while her husband is working elsewhere. This is still deemed to be acceptable in Japan as it is commonly believed that a housewife should continue to take care of her children upon separation with her husband.

The Matsudo judgment

On 29 March 2016, the Matsudo branch of the Chiba Family Court rendered an epoch-making decision (the “Matsudo judgment”). The Matsudo judgment compared the parenting plans submitted by both the wife and the husband (who had been left behind for six years without visiting his child) and appointed the husband as the parental authority of the child because his parental plan was friendlier than that of the mother as it provided more chances for visitation to the other. This judgment is recognised to apply the parent-friendly rules adopted in the US and other Western countries.

The Tokyo High Court, however, rendered a reverse decision on 26 January 2017, which concluded that the mother should have the parental authority, pointing out visitation issues as one of the factors for consideration and stating that “how the children have been raised, their wills, etc, should be taken into account in a total manner”.

The Supreme Court, on 12 July 2017, held that the Tokyo High Court decision should be upheld. The court could make an order as to a child’s living and contact arrangement. The order, however, could not physically change the location of the child.

New law on visitation and disciplinary rights

Visitation

The government recently trying to introduce new laws in relation to the visitation as follows.

According to the draft outline compiled by the Family Law Subcommittee of the Legislative Council on 30 January 2024, as mentioned above, a new trial for visitation is also suggested. The draft outline states that the family court will be able to encourage trial visitation even in the middle of ongoing discussions through mediation or other means. The purpose of this is to achieve early visitation between parents and children, but it will not be allowed in cases where there is a risk of abuse or domestic violence. In addition, since grandparents, as well as parents, are increasingly involved in the upbringing of their children, it is now possible for grandparents and others to request visitation rights from the court.

Many experts praised the new reform as “a significant reform that provides a new option other than sole custody, based on the principle of co-operating as much as possible even after divorce”, but said that there are still some issues to be addressed because “there was not enough discussion on the criteria and operation of the law when either joint custody is desirable or when sole custody is better”.

Some victims of domestic violence have expressed concern about whether the court will make an appropriate decision. A woman in her 40s who divorced her husband and now lives with her young child said that “My ex-husband, who breaks things and yells at me when he is angry, filed a mediation request for visitation, while my kids are crying, ‘I don’t want to see him’ and self-harming. Under such a standard of judgment, joint parental rights would also be coerced. It is impossible to discuss the interests of the children with the perpetrator, so why should we put the children at risk?” she pleaded.

A woman in her 30s who lives with her child and is preparing for divorce proceedings with her husband said that “I was subjected to domestic violence, such as being watched and taunted, but I could not leave any evidence of it. I am very anxious because I don’t know who will recognise domestic violence as an exception to joint parental rights and under what criteria”.

A member of a subcommittee of the Legislative Council and a representative of an organisation that takes a proactive stance on the introduction of joint custody praised the draft outline, but added that “The requirements for visitation between parents and children after divorce have not been clearly defined. It is not clear whether this will change the situation where separated parents and children are unable to meet”.

Discipline

On 10 December 2022, the Law for Partial Revision of the Civil Code, etc (Law No 102 of 2022, hereinafter referred to as the “Law”) was enacted with regard to the disciplinary rights of children. The Law was promulgated and came into effect on 16 December 2022 with respect to disciplinary rights.

Article 820 of the CC stipulates that a person who exercises parental rights has the right and the obligation to provide custody and education of a child for the benefit of the child. In connection with this, Article 822 of the former CC provided that a person exercising parental rights may discipline the child to the extent necessary for custody and education under Article 820 of the CC. However, this article is sometimes abused as a pretext for child abuse, giving the impression that it is a powerful right to discipline and admonish. Therefore, Article 821 of the new CC clarified the “interests of the child” in Article 820, stipulating as general rules to be observed in custody and education that the child’s personality be respected and that consideration be given to the child’s age and level of development, and prohibiting corporal punishment and other words and actions that have a harmful effect on the child’s sound mental and physical development. The former Article 822 of the CC was also repealed.

Child Support

Child maintenance in Japan

Under Japanese law, the parent who does not reside with the dependent child has an obligation to pay child maintenance to the other parent who resides with the child, both within and outside of marriage. Parents have an obligation to support their dependent child.

Parents can decide the amount of child support by mutual agreement. In cases where they cannot reach an agreement, the court or a mediation panel will decide the amount.

In cases where the amount of child maintenance is decided by judgment, mediation or adjudication, the amount is calculated with a formula designed to reflect the concept that the parents are responsible for ensuring their dependent child enjoys the same standards of living as the parents. A simplified chart has been created by court.

In accordance with the chart, the amount of child maintenance is calculated by taking into account the incomes of both parents, the age of the children, and the number of the children involved. However, in cases where there are special circumstances which result in the amount calculated by the formula being particularly unfair, the court can order an amount which departs from the chart by considering the special circumstances.

Voluntary child maintenance arrangements 

Under Japanese law, parental authority can be exercised without court order. As the parent who has parental authority can determine the residence of the child (Article 822 of the CC), they can take the child abroad without a court order.

Court-enforced child maintenance arrangements

As of 1 April 2022, a minor, who is currently under the age of 18, is subject to the parental authority of their parent(s) under Article 818(1) of the CC.

Please note, however, that a woman under the age of 18 but older than 16 would not be subject to parental authority if she gets married under Article 753 of the CC, under which she is regarded as an adult. Please also note that Article 753 of the CC will be abolished on 31 March 2024 because of a revision of the age of marriage from 16 to 18 for women.

According to the draft outline compiled by the Family Law Subcommittee of the Legislative Council on 30 January 2024, as mentioned above, a rule will be established to allow the seizure of property with priority over other claims in the event of non-payment of child support. In addition, a “legal child support system” will be established, under which a certain amount of child support can be demanded even in the case of divorce without a child support arrangement.

Children’s claims against parents

If the child is represented by its statutory agent, the child can make a financial claim against their parents. The court will consider the need of the children, their parents’ financial conditions and any other factors relevant to maintain the financial conditions of the child in light of the best interest of the child.

The court in Japan has broad discretion over child-raising issues where the parents disagree. The court, however, would not make an order to dictate the upbringing of a child when parents have an opposing view of the specific issues, such as schooling, medical treatment, religion or holidays. The court normally defers to the sole parental rights-holder or sole custodian and charges the parent it thinks best placed to decide these issues with responsibility for them. If the decision made by the sole parental rights-holder or sole custody right-holder is unreasonable, the court would change the parental right-holder or sole custody right-holder.

The courts of Japan have not yet recognised or used the concept of parental alienation. The courts, however, do recognise that a child who lives with a sole parental right-holder or sole custody right-holder is solely dependent on the parent they live with. The courts also understand that the child is heavily influenced by that sole parent and recognise the tendency of the child to speak ill of the parent not living with them. Because of this, courts often do not place emphasis on mere words of a child upon the decision of the sole parental right-holder or sole custodian, or on the decision to commence the visitation of the child by the parent not living with the child.

The same ADR mechanisms that apply to divorce also apply to financial disputes around children, as long as the finance is related to the divorce or separation. Please see 2.9 Alternative Dispute Resolution for further detail.

The same rules around media and transparency apply to child custody cased as apply to divorce. Please refer to 2.8 Media Access and Transparency for further detail.