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Japanese family
law is structured so as to respect and encourage the private resolution of
family issues. Under the "family registration" (“koseki”) system, changes
in family status and relationships do not require any official approval. The
parties acquire or alter their family status privately, by registering any
changes with public officials who maintain the family registers. As an integral
part of the koseki system, Article 763 of the Civil Code of Japan
authorizes a husband and wife to divorce by mutual agreement. Such divorces are
known as “kyogi rikon” divorces.
More than 90% of
all divorces in Japan are kyogi rikon consent divorces. The process is
fast, simple and entirely non-judicial, requiring only that both spouses sign or
seal a form which is then filed with the local registry office. International
couples may obtain a consent divorce in Japan if one of them is a Japanese
citizen. Horei Law on the Application of Laws, Law No. 10 of 1898 (as amended
2001), Art. 16 (found at http://www.international-divorce.com/d-japan.htm).
If the parties cannot agree, divorces may also be obtained in Japan through the
court system.
In the author’s
opinion, many Japanese consent divorces dissolving international marriages are
unlikely to be recognised in Britain, by virtue of Sections 45 and 46 of the
Family Law Act 1986. On the other hand, judicial Japanese divorces will
generally be recognised in Britain and are not the subject of this article.
The spouses’
domicile at the time of their divorce is the key element in determining whether
a Japanese consent divorce will be recognised in the U.K. If both spouses were
domiciled in Japan at the time of their divorce, courts in the U.K will
recognise the divorce (unless one spouse was habitually resident in the U.K.
throughout the one year period preceding the divorce). However, if either spouse
was not a Japanese domiciliary at the time of the divorce, it is likely that the
U.K. courts will not recognise the divorce (unless the non-Japanese domiciliary
spouse were domiciled in a country in which such consent divorces were valid).
Family Law Act Sec. 46(2). Since few non-Islamic countries allow non-judicial
divorce by consent, in most cases a U.K. court will not recognise Japanese
consent divorces unless both spouses were actually domiciled in Japan at the
time of the divorce.
The anticipated
non-recognition of Japanese consent divorces if either spouse was not a Japanese
domiciliary on the date of the divorce gives rise to a serious and generally
unrecognised problem for international people who have been or may become
divorced in Japan, especially if they have subsequently remarried or otherwise
altered their affairs.
Family Law Act 1986 Section 46
The Family Law
Act 1986 contains the current and exclusive provisions for the recognition of
overseas divorces in the U.K. Family Law Act Secs. 45-49. Section 46 establishes
two distinct categories of overseas divorce. Subsection (1) applies to overseas
divorces obtained “by means of proceedings” while subsection (2) applies to
overseas divorces obtained “other than by means of proceedings.”
Subsection (1)
provides that:
”The validity of an overseas divorce, annulment or legal
separation obtained by means of proceedings shall be
recognised if --
(a) the
divorce, annulment or legal separation is effective under
the law of the country in which it was obtained; and
(b) at the relevant
date either party to the marriage --
(i) was habitually
resident in the country in which the divorce, annulment or
legal separation was obtained; or
(ii) was domiciled in
that country; or
(iii) was a national of
that country.”
Thus, subsection
(1) sets forth three requirements for recognition. The first is that the divorce
was “obtained by means of proceedings.” It is this requirement that creates the
fundamental problem concerning kyogi rikon divorces. The second
requirement is that the divorce is “valid in the country in which it was
obtained.” This is necessarily satisfied in every case in which a consent
divorce is secured in Japan in compliance with the provisions of Japanese law.
The third requirement is that one spouse was habitually resident or domiciled in
Japan at the time of the divorce. This is satisfied for all consent divorces in
Japan unless both spouses were both living and domiciled outside Japan at the
time of the divorce.
If kyogi rikon
divorces are not “obtained by means of proceedings” then the much more
restrictive provisions of subsection (2) of the Act will govern. This provides
that:
“The validity of an
overseas divorce, annulment or legal separation obtained
otherwise than by means of proceedings shall be recognised if --
(a) the
divorce, annulment or legal separation is effective under
the law of the country in which it was obtained;
(b) at the relevant
date --
(i) each party to the
marriage was domiciled in that country; or
(ii) either party to
the marriage was domiciled in that country and the other party was domiciled in
a country under whose law the divorce, annulment or legal
separation is recognised as valid; and
(iii) neither party to
the marriage was habitually resident in the United Kingdom throughout the period
of one year immediately preceding that date.”
Subsection (2)
requires the party seeking recognition of a foreign divorce to establish not
only that the divorce is valid in the country that granted the divorce, but also
that, on the date of the divorce, both parties were domiciled that country, or
one party was domiciled there and the other was domiciled in a country which
recognised such a divorce. In addition, the divorce will not be recognised if
either party had been habitually resident in the United Kingdom throughout the
period of the year immediately preceding the divorce.
Accordingly, it is
of great significance to determine the meaning of the term “proceedings” and
then to apply that meaning to kyogi rikon divorces.
“Proceedings”
At common law a
foreign divorce was recognised only if it were valid according to the law of the
spouses’ joint domicile, which, because of the concept of the domicile of
dependency, meant the domicile of the husband. In 1973, the wife’s domicile of
dependency was abolished by statute, so that a husband and wife could have
different domiciles. Domicile and Matrimonial Proceedings Act 1973. Thus, a
foreign divorce would not be recognised at common law unless it were valid
according to the law of both spouses’ domiciles. The Recognition of Divorces and
Legal Separations Act 1971, as amended in 1973, created a more liberal statutory
basis for the recognition of foreign divorces, but only if the divorce was
“obtained by means of judicial or other proceedings in any country outside the
British Isles” (Sec. 2(a)).
The law concerning
foreign divorce recognition was reformulated in the Family Law Act 1986. The
term “proceedings” was used to distinguish between divorces governed by the
liberal recognition principles of Section 46(1) and divorces governed by the
much more restrictive regime of Section 46(2). Section
54(1) of the Family Law Act 1986
provides that “‘Proceedings’ means judicial or
other proceedings.” Accordingly, the term “proceedings” should be given
the same meaning as in the 1971 Act.
Courts have most
frequently interpreted the term “proceedings” in the context of Muslim talaq
divorces, which are not granted by a court and are based primarily on certain
formal pronouncements by the husband in front of witnesses. The courts have
drawn a clear distinction between two kinds of talaq divorce. The first
kind, often described as a “bare talaq” divorce, requires only the
traditional formula of a husband making certain statements in specified ways on
certain occasions before witnesses. Courts have held that such a divorce process
does not have sufficient formality or third-party oversight as to constitute a
“proceeding” and have generally refused to recognise such foreign divorces
unless both parties were domiciled in the foreign jurisdiction. Chaudhary v
Chaudhary [1985] FLR 476. The second type of talaq adds a
significant degree of formality and third-party involvement to the traditional
verbal formula. In such cases, the courts have generally held that the divorce
process constitutes a “proceeding” such that the overseas divorce would be
recognised. Quazi v Quazi [1980] AC 744.
In Quazi,
the House of Lords ruled that a talaq divorce that complied with
Pakistan’s Muslim Family Laws Ordinance 1961 was obtained “by means of a …
proceeding” within the meaning of Section 2(a) of the Recognition of Divorces
and Legal Separations Act 1971. The House of Lords’ reviewed Section 7 of the
Pakistani statute, which provided that talaq divorces required the
following six steps:
(a) The pronouncement by the husband of the required statement of
divorce in front of witnesses;
(b) The giving of written notice of such pronouncement to the
Chairman of the local Union Council;
(c) The giving of written notice to the wife;
(d) A waiting period of ninety days thereafter, or of a longer
period of time if the wife were pregnant;
(e) The constituting of an Arbitration Council within thirty days
of the date the written notice is given; and
(f) The taking by the Arbitration Council of all steps necessary
to try to bring about a reconciliation.
The House of
Lords held that a divorce that complied with such requirements of was obtained
by means of a “proceeding”, particularly since the requirements were enforced by
the penal sanctions of the state. Lord Diplock said (at 808-9):
"The pronouncement of the talaq was required by law to be
notified to a public authority, the Chairman of the Union Council; he in turn
was required by law to constitute an arbitration council for the purposes of
conciliation and to invite each spouse to nominate a representative. These are
'proceedings'; none the less so because in the event neither spouse elects to
take advantage of the opportunity for conciliation which the arbitration council
presents. They are proceedings that are not merely officially recognised but are
also enforced by penal sanctions under the Muslim Family Laws Ordinance 1961.
Without such proceedings the divorce by talaq never
becomes effective. The proceedings come first, the divorce
follows them 90 days after they have been commenced."
By contrast, in
Chaudhary v Chaudhary [1985] FLR 476, the Court of Appeal refused to
recognise a bare talaq divorce that had been obtained in Kashmir in
compliance with local requirements but without the extra procedural elements set
forth in Pakistan’s Muslim Family Laws Ordinance. The divorce procedure
comprised the bare religious element of the husband making the pronouncement of
talaq in the religiously prescribed manner in front of the required
witnesses.
The Court of Appeal held that, as a matter of statutory construction, the phrase
"obtained by means of [judicial or other] proceedings" must be intended to
differentiate between two classes of divorces, both of which are effective in
the overseas country, since otherwise there would have been no purpose in the
requirement at all and the Act would simply have provided that a
divorce effective abroad was effective in
the U.K. In addition, the Court stressed that the word “proceedings” must be
given the same meaning that it would be given if used in normal speech, which
imports a degree of formality as well as the involvement of a state or
third-party agency that does more than simply review some papers.
Thus
Cumming-Bruce LJ stated at 482:
"The criterion 'judicial or other proceedings' must be given a
construction which restricts recognition to a narrower
category of divorces than all divorces obtained by any means whatsoever which
are effective by the law of the country in which the divorce
was obtained."
Oliver LJ said (at 485):
"'Proceedings' must, in my judgement, at least bear in the
statute a meaning which the word would have in normal speech where, as it seems
to me, no-one would ordinarily refer to a private act conducted entirely by
parties inter se or by one party alone, as a proceeding, even though the party
performing it may give it an additional solemnity or even an efficacy by
performing it in the presence of other persons whose only involvement is that
they witness its performance.”
Oliver LJ
proceeded to state (at 485) that:
“The word would not, in my judgement, ordinarily be used as being
synonymous with 'procedure' or 'ritual'. Thus, for instance, the formalities
which are required by law to be observed in the execution by a testator of a
valid will under the provisions of the Wills Act 1837 would not, I should have
thought, be normally referred to as 'proceedings' although the testator would be
properly described as having gone through the correct procedure.”
He concluded (at
485) that:
“In the context, however, of a solemn change of status, it does
seem to me that the word must import a degree of formality and at least the
involvement of some agency, of or recognised by the state having a function that
is more than simply probative, although Quazi v Quazi clearly shows that
it need have no power of veto.”
Accordingly,
Chaudhary stands for the proposition that a divorce procedure is not
obtained by means of a “proceeding” if it results from the actions of one or
both spouses and witnesses, with a state agency acting as a mere recorder of the
information and having no other significant function.
The fundamental
distinction between the two types of talaq divorce was then applied by
the Immigration Appeal Tribunal in Baig v. Entry Clearance Officer,
[2002] UKIAT 04229. A husband’s pronouncements of talaq divorce in the
religiously prescribed manner and at the religiously prescribed times had
resulted in a Pakistani Muslim divorce. However, there had been no notification
to or involvement by the Chairman of the Union Council, any organ of the state
or any third-party tribunal. The Immigration Appeal Tribunal held that the
divorce should not be recognised in English law, since it had not been obtained
by means of a “proceeding.”
By contrast, the
Social Security and Child Support Commissioners determined that a panchayat
divorce under the Hindu Law of India constitutes a divorce by means of
“proceedings” within the meaning of Section 46(1). [1997] UKSSCSC CP_11496_1995
(05 February 1997). Their decision was based on expert evidence that the
panchayat -- a council of elected members who make decisions
on issues key to a village's social, cultural and economic life -- plays
a well-established function in settling disputes and authorizing divorces in
India.
Likewise, in El
Fadl v El Fadl [2000] 1 FLR 175, Hughes J. held that a
Muslim divorce in Lebanon had been obtained by means of a “proceeding” because
of the role played by a Sharia court. Hughes J. held (at 188) that:
“Although the Sharia Court has no judicial decision to make
whether there is to be divorce or no, what occurred before it with the assembly
of the court, judge and clerk, and the duty to record into the register, having
taken formal declarations, is properly described as ‘proceedings’ and the local
law explicitly requires such proceedings as an integral part of the divorce
process.”
Japanese Consent Divorces
Application of
these principles to Japanese consent divorces compels the conclusion that they
are not based on “judicial or other proceedings.” Kyogi rikon divorces
are entirely non-judicial, do not involve the decision-making responsibility of
any tribunal and do not require the participation of a lawyer. Indeed, lawyers
are almost never involved in the process. The only requirements are that each
spouse should sign a form, known as a “rikon todoke,” consenting to the
divorce and providing information about basic facts such as the parties’
addresses, nationality (in the case of a non-Japanese citizen), occupation and
children’s details; that two people should act as witnesses; and that the form
should be filed with the registration office of the ward in which the spouses’
(or the Japanese spouse’s) family register is maintained. The parties do not
need to make any appearance at the registry office.
Articles 766-769
of the Civil Code of Japan make provision for court involvement if parties who
have been divorced by consent are unable to agree as to matters concerning
children, property or family genealogy. In such cases, the validity of the
consent divorce is entirely unaffected by the parties’ failure to agree on other
issues or by their resort to the courts to resolve such issues.
The local
registry offices perform nothing more than a purely ministerial recording
function in connection with consent divorces. They have no other responsibility
in connection with the divorce process. They provide no counseling or mediation
service and they have no discretion to refuse to file a form that appears to
have been correctly completed. There is not even any procedure for the registry
offices to check the genuineness of the signatures.
The fact that the
ward office has nothing more than a registering and filing responsibility is
reflected in the fact that kyogi rikon divorces may quite easily be
falsely procured based on a forged signature. Indeed, forgery of rikon
todoke forms is such a serious problem that that there is a special system
to provide some protection for people who worry that their spouse will forge
their name on such a form. If a spouse files a fujyurimouside form (a
“petition for turning down” a divorce) with the municipal office, the ward
office will not allow the other spouse to file a rikon todoke form within
six months thereafter. Corroboration of the ministerial function of the registry
office is provided by the fact that the Civil Code provides that if a registry
office improperly accepts a consent divorce form, the validity of the divorce
will not be affected. Civil Code, Article 765.
Accordingly, the
kyogi rikon process is undertaken by the parties privately, without the
involvement of any outside agency. The local registry offices perform only a
recording function. There is nothing in the process that remotely resembles a
“proceeding” of the kind anticipated by the UK legislation.
Conclusion
Japanese kyogi
rikon divorces are not obtained by means of “proceedings” within the meaning
of Section 46(1) of the Family Law Act 1986. This creates a potentially serious
problem for international couples who divorce in Japan. If both spouses were
domiciled in Japan at the time of their divorce, courts in the U.K will
recognise the divorce, as provided in Section 46(2) of
the 1986 Act, unless one party was habitually resident in the U.K. throughout
the one year period preceding the divorce. However, if either spouse was a
non-Japanese domiciliary at the time of the consent divorce, it is likely that a
U.K. court will not recognise the divorce.
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