DIVORCE IN JAPAN
WHAT A MESS
By Arudou Debito, Sapporo, Japan
Excerpted and adapted
from upcoming book, "HANDBOOK
FOR NEWCOMERS, MIGRANTS, AND IMMIGRANTS: Setting
Down Roots in Japan" (published March 2008).
Published by Success
Stories Japan,
a newsletter for corporate executives, issue dated June 2006.
(Referential Links for claims made within the article appear at the
very bottom.)
For many readers of Success Stories, understanding the demographics of
the Japanese market is essential to your business. This essay
will deal with one fundamental facet, which affects consumer
preferences, disposable income, and the stability of the oldest
business proposition in existence: Marriage and the Family
Unit.
Given the strong image of "docile Japanese wives" and "Japan's selfless
corporate workers", many readers might be envisioning Japan as a
homogeneous land of stable families and low divorce rates.
But
let's look at the figures:
According to Japan's Ministry of Health, Labour, and Welfare, there
have been fewer marriages between Japanese in recent years:
weddings steadily dropped from 764,161 in 1995 to 680,906 in 2004, an
11% decrease.
In the same time period, international marriages, where one partner is
Japanese, have jumped from 27,727 to 39,551 couples, or a 43%
increase. (And let's answer the inevitable question
of
"Who's marrying whom?": Perhaps counterintuitively (but not
so
when you consider how many farmers import brides), overwhelmingly more
Japanese men marry foreigners than the other way around--at a ratio of
nearly eight to two, and growing!)
However, perhaps because people prefer to leave the altar with smiles
and hope for happy endings, less attention is paid to divorce
figures. Between 1995 and 2004, broken unions in Japan also
increased nearly without pause: from 199,016 to 270,804
divorces,
a 36% increase. Of those, however, divorces between Japanese
have
plateaued, even decreased, in recent years. International
divorces, however, have increased steadily, nearly doubling within the
same time period (for Japanese men-Foreign women: from 6,153
to
12,071 divorces; for Japanese women-Foreign men: from 1,839
to
3,228 divorces).
This essay chooses not to speculate on the possible "cultural" or
"sociological" reasons behind these numbers (since it is difficult to
even accurately calculate a "divorce rate"). Suffice it to
say
that marriage in any society to anyone is risky.
However, marriage within the Japanese system is especially risky,
because if it goes sour, people regardless of nationality can lose
big. Enforcement of laws connected to alimony, child support,
visitation rights, court orders, and custody in Japan is very
weak. If you marry a Japanese, have children, and then get a
divorce, you--and especially you as a foreign parent--could lose
custody and all access to them. This may affect not only your
bottom lines, but also your future personal plans in Japan.
PARTING IS SUCH BITTER
SORROW
Divorce in Japan, like marriage, is easy if both parties agree to
it. All you have to do is head for the Ward Office and fill
out a
Divorce Form (rikon todoke--essentially the opposite procedure for
getting married using a kekkon todoke). Spouses put their
inkan
stamp on the todoke (signatures are not valid), and file it with the
Ward Office. That is all. They are
divorced. This is
called kyougi rikon, or "divorce by mutual consent", which
happens, estimates a lawyer friend who specializes in these cases, in
about 80% of divorces. Assets, possessions, or property are
divided up either informally or through the legal community, and you
make a clean sweep of it and get on with your lives.
However, if both parties do not agree to divorce, things can get very
messy. According to Japan Civil Code Article 770, there are
five
grounds for unilateral divorce:
1) infidelity
2) malicious desertion
(which for foreign spouses can include being deported)
3) uncertainty whether or
not the spouse is dead or alive for three years or more,
4) serious mental disease
without hope of recovery, or
5) a "grave reason" which
makes continuing the marriage impossible.
What is considered a "grave reason" is unclear, and at the discretion
of a judge if things go to court. One reason can be the wife
refusing the husband sexual relations for a long period of time (a
reason only men can claim). Another can be the husband
refusing
the family unit his financial support (which only women can
claim). However, the simple fact that you do not like each
other
anymore, i.e. a matter of "irreconcilable differences" (
seishin teki kutsuu),
is not, according to lawyer Mizunuma Isao of IGM Law Offices, Sapporo,
considered to be sufficient grounds.
Here things begin to pinch. If one side refuses to agree to
the
divorce, you will have to negotiate until you do, which can take many
years. You can legally separate, but this is not a divorce,
and
you cannot remarry. Moreover, if there is a secret
relationship
behind the breakup, a spouse in Japan can sue your new partner for
damages, demanding both you and your partner pay consolation for
wrecking the marriage!
If you after talking things out you still cannot agree to divorce, you
go to Family Court. The first step is called
choutei
(mediation), where you sit down with three representatives, i.e. two
"upstanding members of the community" (who are generally not certified
counselors) and one representative of the court. This
mediation
system is designed to give disputing couples a forum for their
grievances without snarling up the courts. However, the role
of
the choutei is not to find fault on either side, rather to help both
sides reach an agreement--i.e. reconcile or divorce. Meetings
take place around every month or two, generally in separate rooms for a
few hours, and can continue for years.
If the couple cannot reach an agreement even after court mediation
(which is estimated to happen in around 5% of all divorce cases), then
the next step is a lawsuit in Family Court. There, a judge
will
only rule that a contested divorce is legitimate if you can prove that
the marriage has completely "collapsed" (
hatan).
This is one of the reasons why divorces in Japan get messy.
Since
judges hardly ever grant divorces to the person who did wrong, you must
show that your partner was at fault. In other words, you
cannot
separate amicably--you have to dredge something up. This does
not
create a constructive atmosphere; it can cause even more feelings of
ill-will and a future desire for revenge. Also, since laws
governing perjury in Japan are at best weakly enforced in civil cases,
your spouse may make some exaggerated claims about your past in court
with impunity. If it goes to court, it will get very nasty.
After all that, if the judge does not rule the marriage has actually
"collapsed", all you can do is wait. Sometimes former couples
still reside together yet live divorced lives (katei nai bekkyo) of no
contact. Separations of at least five years (ten to twenty
years
are not extraordinary in Japan) are necessary before a contested
divorce may be granted by a court. Meanwhile, if there are
children who need feeding, child support will be assessed by looking at
a fee schedule created by the Bar Association, which measures both
parents' income and determines an appropriate monthly sum.
BUT WHAT ABOUT THE
CHILDREN?
Divorce proceedings and the aftermath are tough on the kids in any
society, but Japan further complicates things through legal
negligence. During separation, divorce court, and onwards,
the
parent who does not have custody may have problems meeting the children
for more than a few hours a month, if at all. Visitation
rights
are not granted before the divorce is complete, but even then, Japan
has no legal mechanism to enforce visitation rights or other
court-negotiated settlements afterwards.
Also, enforcement mechanisms for the payment of alimony or child
support have loopholes. For example, if your spouse owes you
money but refuses to pay, you must know the home address, the
workplace, and bank account details of your spouse in order to seek
redress. However, if your spouse changes any of these things and
happens not to notify you, you will have to track down those details
yourself, which often requires hiring your own private
detective.
The police or government officials will not get involved.
MULTINATIONAL MARRIAGES
COME OFF WORST
What makes this situation especially difficult for international, and
especially intercontinental, divorces is that foreign partners have
extreme difficulty being granted custody of children in
Japan. In a March 31, 2006 interview with the
Canadian
Broadcasting Corporation, lawyer Jeremy D. Morely, of the International
Family Law Office in New York, stated:
"Children
are not returned from Japan, period, and it is a situation that happens
a lot with children of international marriages with kids who are over
in Japan. They do not get returned. Usually, the
parent who
has kept a child is Japanese, and under the Japanese legal system they
have a family registration system whereby every Japanese family has
their own registration with a local ward office. And the name
of
registration system is the koseki system. So every Japanese
person has their koseki, and a child is listed on the appropriate
koseki. Once a child is listed on the family register, the
child
belongs to that family. Foreigners
don't have a family register and so there is no way for them to
actually have a child registered as belonging to them in
Japan.
There is an international treaty called the Hague Convention on the
civil aspects of international child abduction, and Japan is the only
G7 country that is not a party to the Hague Convention."[1]
This means that if things go intercontinentally ballistic (say, a
Japanese spouse abducts a foreigner's children back to Japan), the
foreigner will lose all contact with them, according to the
Children's Rights Network.
Even if the foreigner tries to go through proper domestic channels, he
loses. One clear example is the Murray Wood Case.
Wood, a
resident of Canada, was awarded custody of his children in 2004 by
Canadian courts. Yet when his children were abducted to Japan
by
ex-wife Ayako Wood, he found himself powerless to enforce the court
order. Not only were the Canadian Government's demands to
extradite Ayako ignored by the Japanese government, but also Japan's
Saitama District and High Courts awarded custody to her, essentially
declaring that "uprooting the children from the current stable
household is not in the child's best interest". What
then?
If the foreigner takes the law into his own hands and abducts them
back, he will be arrested for kidnapping by the Japanese police, as was
witnessed in a recent case handled by the American Embassy.
Consequently, Japan has become a safe haven for international child
abductions.
CONCLUSION
The author does not wish to give the impression that divorce is any
more likely if the spouse is a Japanese. "Any marriage," my
lawyer sources dryly indicate, "is a gamble." However, what
raises the stakes of the transaction is the fact that Japan has
weak-to-nonexistent recourse to prevent potential abuses.
According to Colin P.A. Jones J.D., Associate Professor at Doshisha
University Law School, the system is geared to support the distaff side
of the divorce. The woman, as wife and mother, is given
overwhelming priority in divorce cases, as opposed to viewing each
divorce on a case-by-case basis (spawning a cottage industry of
guidebooks on wringing the most out of your man). Yes,
weak-to-nonexistent enforcement of laws and court rulings mean that men
in the Japanese system (as compared to, for example, the American) do
not stand to lose enormously financially. They will, however,
lose their children.
Veterans of broken Japanese marriages very often lead separate lives
without any connection to each other or the children for
decades.
(Prime Minister Koizumi's nonexistent relationship with his youngest
son Yoshinaga is a prime example.) It is a system that
encourages
"fortress Moms", "deadbeat Dads", and "who dares, wins" custody
battles. With all this, it is no wonder why marriage is not
an
option for some people, and why Japanese divorce statistics may in fact
be artificially low (although we should see a jump from 2007, due to a
reform where wives will be able to claim part of their ex-husbands'
pension).
In this era of modernity and more lifestyle choices, if Japan ever
aspires to the ideals of "upholding the sanctity of marriage" and
"strengthening the family unit", it will have to reform this system to
make all parties more accountable for relationships gone
sour.
Keep this information in mind if your business involves this sector of
the Japanese market.
---------------------------------
Referential
Links:
Ministry
of Health, Labour and Welfare statistics on marriage and divorce in
Japan:
http://www.mhlw.go.jp/toukei/saikin/hw/jinkou/suii04/
Regarding Issues of
Divorce and Child Custody in Japan:
http://www.crnjapan.com/en/issues.html
The Children's Rights
Network Japan
http://www.crnjapan.com
The International Family
Law Office (Lawyer Jeremy D. Morely, Esq.):
http://www.international-divorce.com
Regarding PM Koizumi
Junichiro's divorce--the perfect case study of nonaccountability:
http://www.crnjapan.com/pexper/juk/en/
The Murray Wood Case
http://www.crnjapan.com/pexper/wom/en/
AUTHOR BIO:
ARUDOU Debito, a naturalized Japanese citizen, is an Associate
Professor at Hokkaido Information University, and a columnist for the
Japan Times. His books, 'JAPANESE
ONLY'--The Otaru Hot Springs Case and Racial Discrimination in Japan
(Akashi Shoten Inc., revised 2004 and 2006) are available in English
and Japanese. His latest book, "Guidebook for
Newcomers:
Setting Down Roots in Japan" (working title), is being co-authored with
a Japanese lawyer and will be available in early 2007. This
essay
is an excerpt and adaptation from Chapter 4 of Guidebook. The
author may be reached at http://www.debito.org
and debito@debito.org.
ENDS
May 31, 2006
[1] Interview, Canadian Broadcasting
Company, March 31, 2006,
http://www.crnjapan.com/articles/2006/en/20060331-japanambassadorinterview.html