Now I guess it can be told...
DEBITO.ORG SPECIAL EDITION NEWSLETTER
HOW TO GET A DIVORCE IN JAPAN
By Arudou Debito
December 2, 2006
I originally wrote a preliminary research essay on divorce in Japan last July (blogged at
http://www.debito.org/index.php/?p=9).
I neglected to mention that I was currently going through a very messy
one myself. Now that it is over with, it is time to give a more
complete picture.
This post is structured as follows:
//////////////////////////////////////////////////////
SUMMARY
APOLOGIA
TYPES OF DIVORCES IN JAPAN, AND WHAT YOU HAVE TO GO THROUGH
WHY I WENT THROUGH ONE, AND THE AFTERMATH
CONCLUSIONS AND LINKS
//////////////////////////////////////////////////////
SUMMARY
From February 2004, when I asked my ex-wife for a divorce, to September
2006, when it was finally granted after more than two and a half years
of negotiations, I went through one of the most difficult experiences
of my life. I had finally come to the conclusion that I had made
a serious mistake in my life matrimonially and decided to extricate
myself. In the process, I have found that the mechanisms for
divorce proceedings in Japan are quite practical, but the process
half-assed. Particularly because the system forces fragile
matrimony into acrimony, then lacks enforcement of either child support
or visitation rights (it also does not allow joint custody). In
other words, when the Japanese government mediates, it does so by
half-measures: aggravating the situation during the divorce, then
leaving the couple alone afterwards to hurt each other and the
children. I present my case for what it's worth in hopes that
people, considering either marriage with or divorce from a Japanese,
will make more informed decisions before taking either step.
//////////////////////////////////////////////////////
APOLOGIA
It is of course not easy to divulge information this personal to public
view. No doubt some online fora will react to it with
characteristic Schadenfreude. However (and this has been my creed
all along when creating the archive at debito.org), I believe that
given my position in this society, both as a cataloguer of life in
Japan and as a naturalized advocate for human rights, this is part of
the job description. What I went through is in many ways
instructive, and the lessons I have learned from this episode, however
painful for me to recount, may be of value to others plighting their
troth in Japan who want to avoid my plight. Particularly since
many of the "Bubble Boomers" in the foreign community--i.e. those who
came over during the Bubble Economy and found themselves staying
on--have reached middle age and are realizing a few things about life's
big decisions.
Japanese marriage and divorce laws are two very odd bedfellows:
One very easily gives non-Japanese strong roots in Japan in terms of
visas, job security, and social standing. The other may cost you
everything you ever built up or cared about in Japan--including your
visa, property, and children. I believe many people out there may
benefit from what I've learned.
We certainly talk enough about Japanese marriage. However,
divorce is also part of life in Japan, and it should also be discussed
constructively and instructively like anything else. It is not,
however, an indictment of marriage to or between Japanese (for there
are many happy unions out there). It is merely a tale of how one
person, who happens to be a fluent but non-native speaker of Japanese,
managed to navigate Japan's system successfully. Here goes:
//////////////////////////////////////////////////////
TYPES OF DIVORCES IN JAPAN, AND WHAT YOU HAVE TO GO THROUGH
There are three kinds of divorce in Japan--divorce just between the
couple, divorce involving State mediation, or divorce involving court
ruling:
"KYOUGI RIKON" (DIVORCE BY MUTUAL CONSENT)
Divorce can start off as simply as it did when asking for your
partner's hand in marriage. You broach the subject, talk it over,
and hope that your partner agrees with you that the marriage is beyond
repair. If so, all you have to do is go to the ward office (
shiyakusho, kuyakusho, or
chouyakuba) where your family is registered, and file a
"rikon todoke" 離婚届, the exact inverse of the
"kon'in todoke" 婚姻届 you filed to get married. You both put your registered
"inkan"
stamps on the paper, fill out some more spaces on the form, and you're
divorced. Simple as that. (And if you have some additional
odds and ends you want settled in writing, hire a lawyer (bengoshi) or
a legal scrivener (shihou shoushi) before or after to take care of
them.)
"Kyougi rikon" happens, according to the lawyer who worked with me on
my case, in about 60% of Japanese divorces. (The clearest example
of one is the "Narita Rikon", where a newlywed couple honeymoons in
Hawaii, find they don't much like each other, go home separately from
Narita Airport upon repatriation, then summarily stamp and file the
paperwork.) This can be a very clean break if there are no
children, no investments, little elapsed time in your marriage,
etc. However, the longer you are married, naturally the harder
your break becomes.
This brings us to the next type of divorce:
==========================================
"CHOUTEI" (MEDIATION)
Choutei happens in about 35% of Japanese divorces. You go to
Family Court (Katei Saibansho) by yourself or with a legal
representative. (I hired a lawyer, because as a non-native
speaker I did not want to navigate this system without legal counsel;
so did my ex-wife, eventually. It costs about US $3000 for the
retainer.) Make an appointment, and you'll have your first
hearing in a month or two.
Bear in mind however that a Choutei is not a court proceeding. It
is a system for people who wish to take their case up with an official
body for mediation. However, it is actually designed, according
to my lawyer, to keep all but the most difficult cases out of a
courtroom. (In fact, you will not be allowed to meet a judge at
all until after at least a few Choutei meetings; when you can declare
"failure"
(fu seiritsu) and go to a real courtroom. More on that below.)
A typical Choutei meets once every month or two. I found them
quite civilized. You and your ex (and/or legal representatives)
take turns meeting with Choutei members
(choutei iin)
in a room in the center of the courthouse. You wait your turn on
one side of the courthouse or the other (depending on whether you want
the divorce or contest it), which means you never have to see your ex
face-to-face at all during the proceedings.
Meetings take an hour or two, and my longest (out of well over a dozen) lasted about three hours.
The Choutei group is comprised of three members, One is a
representative of the court (but not a judge), while the other two are
anonymous "people of awareness" (
yuushiki sha).
The latter are volunteers who most likely have no training as marriage
counselors--they are essentially locals past middle age with an
"upstanding character" somehow determined by the court.
Unsurprisingly (given the potential unprofessionality, see below), the
Choutei does not make legally-binding judgments. Rather, it will
nudge both parties towards either reconciliation or dissolution, after
hearing both sides as impartially as possible. In theory, anyway.
Which brings me to an interesting, but nightmarish, aside:
* * * * * * * * * * * * * *
My first Choutei meeting had one man (I found out later that he was a
buchou
in a local cookie factory) who, as the most senior member in his
mid-sixties, was leading the proceeding. Plus another woman about
the same age. And a court bureaucrat who said nothing the whole
time.
My lawyer and I went first that day, making my case for about 25
minutes. I got what I saw as sympathetic comments from Mr
Cookies. Then my ex-wife went, and took about an hour and a half,
as is her wont. When I went back in, I could see Mr Cookies now
had a chip on his shoulder. For he opened with:
"Do you love your children?"
"Come again?"
"I said, 'Do you love your children?'"
I asked him what business it was of his to question my love for my children.
"Because if you do indeed love your children, you will not seek this divorce."
I then not calmly questioned his impartiality, and left the room for a
good twenty minutes to cool down. When my lawyer retrieved me, he
told me I was perfectly right to get so incensed: "I have never
seen such bias off the bat like that in any Choutei I've been in.
After a few meetings, sure, put some pressure somewhere. But to
hear one side, then another, once each, and assume that you've heard
everything you need to hear to make a snap decision like that,
sore wa hidoi. Must be because we're in a rural courtroom."
When I went back in, I demanded an apology from Mr Cookies. He
gave one. Then I told him I wanted him off this Choutei since
clearly his pronouncements were half-baked. He said he would
tender his resignation. We filed a motion with the court to that
effect and things were rectified by the next meeting. Mr Cookie
Replacement kept his head and held his tongue throughout the next two
years.
Moral: Do the same if you feel your Choutei Iin member is showing
partiality. You have a right a fair hearing. No need to
suffer the amateurs, larkers, or dilettantes you see on the Japanese
kvetch TV shows in your real life.
* * * * * * * * * * * * * *
Back to the procedures. Even if the system rightfully keeps
warring couples apart, it has one major endemic flaw: It forces
an assignation of blame. This probably makes things worse.
According to my lawyer, divorce laws have not been fundamentally
changed since 1898! Which means things are probably behind the
times. Biggest indicator: "Irreconcilable differences" (
seikaku no fuitchi
性格の不一致), better known as "we just don't like each other anymore", are
not officially considered adequate grounds for divorce in Japan.
This is why you must be very careful before inviting the State in as
intermediary in your divorce. It is entirely possible they will
just aggravate the situation.
Why? Because in Family Court, you must claim that your marriage is no
longer functional because one side has done wrong--be it refusing sex,
being profligate with money, breaking a serious criminal law, sleeping
around (uwaki), etc. More below. But even if you don't feel
like bringing these things up, too bad. Those are essentially THE
grounds for divorce in this country.
Unfortunately, having to portray your marriage as a living hell, even
when it wasn't, is almost guaranteed to inspire animosity and
non-cooperation from your partner.
Then once your partner digs her heels in, you're stuck. For
again, unless both sides agree to the divorce, it will not
happen. Unless a judge in the Family Court rules to grant
it. But as I said, the Choutei does not involve judges, so here
the system grinds to a halt.
This is why many Japanese couples choose to live separately while legally married (
bekkyo), or even still live together even though they are not on speaking terms! (
katei nai bekkyo)
This is also one reason why, I believe, divorce rates in Japan are
artificially low. (Another reason is of course economics.
I
forecast that starting from April 2007, when the law changes so that
Japanese wives can claim half their ex-husband's pension for themselves
in old age, the Japanese divorce rate will leap.)
Choutei takes as long as it takes. In my case, it lasted more
than two years. We would come to our separated rooms at a preset
time (usually about 10:30 AM on a Friday morning), then say our piece
orally after submitting something in advance in writing. Then the
other side would go in and say their piece. Then an hour or two
later we'd see if we had reached a conclusion. We didn't,
so the Choutei would schedule another meeting for one to three months
later. Lather, rinse, repeat.
According to my lawyer, Choutei (or suspended versions thereof) lasting
*five to ten years* are not unusual in Japan--for legal precedent has
established that you need to be separated for at least that amount of
time before a judge will finally rule that your marriage is really,
really over (
hatan). And this is way down from the *twenty-year* separations necessary for "hatan" a generation ago!
I won't go into detail on why my Choutei took so long, since my example
offers no real lessons for the general readership. But I will
tell you what broke the logjam: My threatening to dissolve the
Choutei and go to court. This brings us to the third type of
divorce in Japan:
=========================================
SAIBAN (COURT)
By design, few divorces are brought before a judge--only about
5%. But in this case, both sides will have their statements
recorded, often for the public record, with a ruling one way or the
other at the end.
However, there is a built-in discouragement of divorce even in Japanese
court. As I said above, Japan's divorce laws have remained
fundamentally unchanged for more than a century. Back then, the
Meiji-Era oligarchs saw the divorce rate (which at the time was
*higher* than the West!), felt it was an embarrassment to Japan, and
overstrengthened the marriage laws to the point where divorce then
became extremely difficult (see Fuess, DIVORCE IN JAPAN).
Thus, according to Civil Code (
Minpou) Article 770, Clause 1, there are currently five grounds for divorce:
1) infidelity (futei na koui)
2) malicious desertion (akui na iki)
3) uncertainty whether or not the spouse is dead or alive (shoushi) for three years or more,
4) serious mental disease (seishinbyou) without hope of recovery, or
5) a "grave reason" (juudai na jiyu) which makes continuing the marriage impossible.
Article 770 Clause 2, however, allows a judge to overrule the first
four items above if he (usually he) thinks the marriage should stand.
What is considered a "grave reason" is unclear, and entirely at the discretion (
sairyou)
of the judge. One reason could be the wife refusing the husband
sexual relations for a long period of time (a claim only men can
make). Another could be the husband refusing the family unit his
financial support (a claim only women can make). However, again,
the simple fact that you cannot stand the very sight of each other
anymore will not be considered adequate grounds. So if there are
no laws broken, the judge is probably going to rule against the divorce
if you don't wait five to ten years.
Fortunately, my case never went to court. After two years of
cat-and-mouse, it became clear that my ex-wife, a politician in a local
town assembly, did not want to air our dirty laundry in public (and a
heckuva lot was aired in writing at the Choutei; this is, by the way,
admissible in court). I also had two concurrent events in my
favor--that her father died last July (and she neglected to inform me),
and that my daughter was sent to the US to attend school (which she
also neglected to inform me of--
violating international law and The Hague Convention about border crossings without the consent of both parents).
Now I could not only make the case that she had committed a criminal
act, but also probably demonstrate that we were indeed no longer a
married couple (for what real wife would not tell her husband about a
parent's funeral?). In other words, I got lucky. I beat the
odds because my ex did stupid things.
Other friends of mine have had more thorough court
experiences. Once I bring up the topic of divorce over
beers, lots of people come out of the woodwork to say ,"Me too!"
It seems to be one of the worst-kept secrets of relationships in
Japan. I have heard some awe-inspiring courtroom horror stories
(such as a friend's ex lying to a judge, and, thanks to
Japan's weak perjury laws,
suffering no sanction whatsoever), but they should be told by the
people themselves. If anyone wants to impart their experiences
anonymously, contact me at debito@debito.org and I will archive them
later in the online version of this essay.
(My friend Mark over at the Children's Rights Network Japan
http://www.crnjapan.com would also be happy to hear your cases: mark AT crnjapan DOT com)
//////////////////////////////////////////////////////
WHY I ASKED FOR A DIVORCE, AND THE AFTERMATH
I'm sure the chattering classes and keyboard clackers out there are
licking their lips and saying, "See? Arudou Debito's activism
wrecked his marriage!"
Sorry, but that's not what happened. I am the one who asked for
the divorce, remember. And even if I had never seen or
participated in a human-rights issue, I believe the outcome eventually
would still have been the same. Our marriage was doomed. We
just weren't the right people for each other, and time only brought
that out into further relief. I'm not going into details (those
issues are just between her and me), but I realized about five years
into the marriage that I had made a mistake. Nevertheless, I
stuck it out, giving it sixteen years of my life before asking for a
separation. I did not take this step lightly. She was the
very reason I came to Japan in the first place. I changed my
entire life to be with her.
I had hoped that we could do this amicably, and did my best to fulfill
my obligations in good faith. From the start, right after the
separation and then onwards, I continued paying the house mortgage (11
man per month, plus 33 man out of every biannual bonus). Plus 5
man a month child support. This total of 16 man per month is the
alimony amount assessed by the local Bar Association (they have a
chart) based upon her and my incomes (hers as a public servant are
stable, mine have been dropping substantially every year for several
years now, thanks to Hokkaido's awful economy. I have always
lived very frugally anyway, so I'm coping). I also immediately
agreed to pay for and let the children stay in the house (it's still in
my name) at no cost until they reach legal adulthood in Japan (age 20);
then we'll renegotiate. That's not just generous--that's the very
best I can do from an economic standpoint.
However, amicably was not how it went. I say that part of it was
due to, as I mentioned above, the systemic need to incriminate your
partner. But part of it was definitely interpersonal, because one
side was not at any stage willing to admit fault or defeat or say sorry
in any way. Plus resorted to using the kids as weapons, denying
me visitation or any contact with them, while fostering ill-feelings
towards the parent who had no way to reply.
This is the worst part of the divorce process in Japan--you just can't
stop this sort of thing from happening. Japan's laws to secure
either child support or child visitation are weak or
unenforceable.
Joint Custody is also not legal in Japan outside of marriage.
In too many cases to recount (the Japanese government does not
keep statistics on this sort of thing), after a divorce one parent gets
exclusive rights to the child, then denies the other party any access
whatsoever. Best example: former Prime Minister
Koizumi! See "For Japanese, a Typical Tale of Divorce",
Washington Post, May 19, 2001:
http://www.crnjapan.com/articles/pre2003/en/20010519-washpost.html
Then you get into a duel--between "Fortress Moms" and "Deadbeat
Dads"--and if something is demanded either way we get a horrible cycle
of bargaining: "I'll pay child support if you let me see
the kids". And there's not a lot you can do either way because,
you see, NOW the State refuses to get involved.
(And it creates legal conundrums
stable and predictable enough to spawn oodles of nasty books,
particularly on how to use divorce proceedings to extract the most from
your ex-husband. Do a search for "rikon" at amazon.co.jp and see for yourself.)
I wasn't about to play that game, since my children would suffer
financially. So I just kept on paying child support and pointing
out to the Choutei that I wanted to see the kids. But every time
my ex continued to deny access, even refused to give me
photographs! In the end, however, it all worked in my
favor: Two years of clear good faith vs. bad helped convince the
Choutei that I had a case. In the last months of the
negotiations, they began putting pressure on her to sign the
papers. She did last September.
In retrospect, this outcome may not be all that surprising.
According to my lawyer, most people wanting divorces in Japan are
women, and most commonly on easy grounds like infidelity. In
fact, of all the divorces my lawyer has ever taken on, mine was his
first where the Plaintiff was male. Because in his view my
situation was
prima facie
strong enough. That is, again, quite indicative. And given
how our relationship exploded into this degree of venom afterwards, I
feel doubly reassured that I have ultimately made the right decision.
//////////////////////////////////////////////////////
CONCLUSIONS
In the end, was getting a divorce worth it? After all, I have
lost my kids and a good chunk of my paycheck for the next decade.
I also lost the
main reason I naturalized
(my house), which is my property but not my home anymore. In
terms of finances, I have wiped out my personal savings and a good few
months' pay on top of that with the divorce settlement and legal
fees. All told, I spent a good $20,000 US to extricate
myself. I am, however, fortunate that I am a naturalized citizen
(and this also applies to Permanent Residents), for afterwards I had no
visa issues. I also consider myself lucky that this quite
normally messy divorce by Japanese standards only took about three
years.
Compare and contrast the paths not taken: I have a friend whose
marriage was in trouble yet who stayed with his wife. We meet
every now and again to swap notes. He is happy that he can still
maintain his relationship with his children, and has reached a detente
of sorts with his wife and meddling in-laws. So it seems to have
worked out. Good for him. As for me, I am very happy to be
free of my ex, but dreadfully sad about having no contact with my
children. I skype my older daughter in the US every two weeks or
so (even though she's a fluent English speaker now, we communicate in
Japanese), but I have not been able to see, speak to, or even see a
photo of my younger daughter for more than two and a half years.
Under the divorce agreement, I can meet her when she's good and ready
to do so--but given how much one-sided bile has been injected into our
relationship, I'm not sure when that will happen, if ever.
In sum, I will have regrets that will stay with me the rest of my
life. I failed as a husband and a father. As author James
Michener said, "
I don't think any man who has gone through a divorce can ever kid himself into believing that he is a success."
Another image that lingers is of Russell Crowe's divorced character at
the end of movie THE INSIDER--where he's divorced and sitting alone in
a hotel room looking at the wallpaper, watching his kids play in
reminiscence. Fortunately, for me the feeling of sorrow is
nothing like that. Yeah, I have my moments, when something (a
song, a toy, or being a guest at a friend's house where he reads his
daughter a bedtime story) triggers a memory and I get all
blubbery. But then I sit down, have a good twenty-minute-or-so
cry, and get it out of my system. Maybe send my kids a letter or
a postcard. Then I get back on with life.
Still, even if I had the chance to do it all over again, I would still
ask for the divorce. I'm a lot happier now than I was back then,
and believe it or not, I don't miss my house at all, even though I live
in a one-room bachelor pad now. Reason is, I felt consistent
anger whenever I would come home and find things that I needed changing
had not changed, no matter what I did. To the point where I did
not want to come home all that much. It stopped being my home
long ago. Years of that were not good for me, and especially not
good for the children. And since that situation was not going to
change, even after a extra-prolonged Good Old College Try, I asked for
an out. I tried to do it nicely, but given the system as it
stands, that was not to be. I hope I can make amends when the
children get old enough to understand the importance of hearing more
than one side of the story. I know that I (also a child of a
nasty divorce, not having any contact with my biological father for
over 25 years--see
http://www.debito.org/americatrekthree.html) eventually came round and wanted to know.
So that's that. I have gone through one of the more rotten
experiences a person will have to go through in their life. I'm
going to be a little grumpy at times on the mailing lists, since I'm
going through a bit of a bad phase. However, I am confident that
time heals, or at least alleviates pain well enough so that I can start
writing a bit more chipperly. I am also confident that people who
show earnestness in interpersonal communications will ultimately be
given a proper hearing. Well, here's hoping, anyway.
Meanwhile, let's continue creating good Karma. Hope you got something good out of this essay.
Arudou Debito
Nagoya, Japan
December 2, 2006
PERTINENT LINKS
Divorce Statistics in Japan, courtesy of Health Ministry (Japanese)
http://www.debito.org/index.php/?p=50
"Divorce in Japan: What a Mess", Debito.org June 20, 2006
http://www.debito.org/index.php/?p=9
"Child Custody in Japan isn't based on rules", SF Chronicle Aug 27, 2006
http://www.debito.org/index.php/?p=23
Primers on the issue: Japan Times Community Page July 18, 2006, and Debito.org
http://search.japantimes.co.jp/cgi-bin/fl20060718z1.html
http://www.debito.org/whattodoif.html#divorce
An immense site devoted to international divorce and child custody rights in Japan
"The Children's Rights Network Japan"
http://www.crnjapan.com/en/
debito@debito.org
www.debito.org
DEBITO.ORG SPECIAL EDITION NEWSLETTER ENDS