English-speaking Japanese lawyer at central Tokyo, handling immigration/asylum cases, family law and employment law matters, and medical malpractice cases.

Family Law Matters:

Family Law Matters

A marriage between parties of different nationalities produces unique problems.

Such marriage is legal of course, but what are the procedures to be observed? Will one of the parties have to change his/her surname to the other’s? What are the mutual rights and obligations of husband and wife when they go about their daily life?

And, when things go wrong, how can a transnational couple have a divorce? Is divorce possible at all for such a couple? Who will get the children’s custody?

When one of the parties dies, a question of inheritance will have to be solved. For example, what if a decedent has a piece of immovable property in a foreign country: what will be the law to be applied to the inheritance of that property?

And there is a question of different dimension: which court of which country has jurisdiction over a given problem arising out of a transnational marriage?

Assuming that you live in Japan, the rule of thumb for such transnational family law matters is:

a) Japanese court (family court in principle) is available for you, if the other party is living in Japan. Your and his/her nationalities do not matter. Japanese family court is available for an entirely non-Japanese couple, as well.

If the other party habitually lives outside of Japan, you will probably have to bring a lawsuit in that country. But as regards negotiations for an out-of-court settlement, jurisdiction of court of law is not relevant as you can imagine.

b) When you go to a Japanese court, it will apply the law of the country to be specified in accordance with the Law on the General Principles of Application of Laws. It is not always the Japanese law that a Japanese court applies to your case.

For example, the following law will be applied to a divorce:

・where the husband and wife have the nationality of the same country, the law of that same country,
・in the absence of the above law and where the husband and wife have the common place of habitual abode, the law of the country where that common place of habitual abode belongs to, and
・in the absence of the above law, the law of the country to which the parties have the closest connection

It must be noted, however, that where either of the parties is of Japanese nationality having a place of habitual abode in Japan, the applicable law will always be the Japanese law.

c) Many family law matters may be settled by agreement of the parties.

For example, Japanese law gives full validity to divorce by agreement of the parties (the parties fill in the specified form and get signatures of the two witnesses, and then submit it to the local authorities). Thus, where the Japanese law is the applicable law, non-Japanese husband and wife may get a divorce by agreement only. If they fail to do so, then Japanese family court is available for divorce mediation, and failing that divorce by judgment. It must be noted, however, that the foregoing relates only to the validity of the divorce under the Japanese law. If the divorce they get in Japan is recognized in their home countries as well will have to be confirmed with their respective home country authorities.

On the other hand, Japanese law is more interventionist as regards inheritance:the Civil Code provides for detailed statutory succession pattern. Both statutory heirs and their statutory shares in estate are specified by the law. Briefly, the surviving spouse gets one half of the property to be succeeded to and the children share out the rest in equal portions. The statutory shares may be altered by a will, but there is a legally secured portions for statutory heirs other than the brothers and sisters of the deceased, which may not be encroached upon by a will.