by Jeremy D. Morley[1]

www.international-divorce.com 

A divorce by consent in Japan, known as a kyogi rikon, is obtained by completing a one-page “rikon todoke” form identifying basic matters about the parties and their children, such as names of the parties, the fact that it was a divorce by consent, the nationality of the spouse if the spouse was a foreign national, the date of commencement of cohabitation, the date of separation, and the name of the head of the household. The form also asks the parties to identify the parent who will have custody of the children.[2] The form should then be signed by both spouses, and by two people who are named as witnesses, and should then be filed in the local government office in which the Japanese family register of one of the spouses is maintained. 

The process is authorized by Article 763 of the Japanese Civil Code, which simply provides that, “Husband and wife may effect divorce by agreement. (Application mutatis mutandis of the provisions on marriage).”

Other relevant provisions of the Civil Code are as follows:

·                    Article 764 provides that, “The provisions of Articles 738, 739 and 747 [concerning procedures for a lawful marriage] shall apply mutatis mutandis to a divorce by agreement.”

·                    Article 738 provides that, “A major ward need not obtain the consent of a guardian for majority in order to marry.”

·                    Article 739 provides that “A marriage becomes effective by notification thereof in accordance with the provisions of the Family Registration Law.” It further provides that the required notification “shall be made by both the parties and two or more witnesses of full age either orally, or by a document signed by them.”

·                    Article 819(1) provides that, “If parents divorce by agreement, they must determine which one of them is to be the person having parental authority in that agreement.”

Article 765 of the Civil Code provides for the filing of the form in the local government office. Specifically, it states as follows:

“Article 765. The notification of divorce may not be accepted unless the divorce does not contravene the provisions of Article 739 paragraph 2 and Article 819 paragraph 1, and of other laws and ordinances.

2. The validity of divorce shall not be affected even in cases where the notification of divorce has been accepted in contravention of the provisions of the preceding paragraph.

This provision means that the municipal government office should confirm that the form complies with the required formalities before accepting it for filing. But the second paragraph of Article 765 provides that the divorce is valid and effective even if, in fact, there was no compliance with the specified formalities. This means that once the form has been accepted for filing in the local ward office, the parties are effectively, lawfully and finally divorced.

The Family Registration Law of Japan then requires that the local municipal office responsible for administering the “koseki” (family register) of the Japanese spouse or spouses, should then amend the koseki to reflect the fact that the spouses are divorced.

A Japanese divorce is final and resolves all pending issues between the parties, including parenting (child custody), child support, and property (asset and liability) division, except as provided in Article 768 of the Japanese Civil Code  Article 765.2 of the Civil Code provides that, “The validity of divorce shall not be affected even in cases where the notification of divorce has been accepted in contravention of the provisions of the preceding paragraph.”

Article 768 also provides that, after a divorce by agreement has been obtained, either party may make a demand for the distribution of property from the other spouse within two years of the date of the divorce.

There are many cases in Japan in which a spouse submits forged or false divorce certificates and succeeds in filing them in the local ward office without the prior knowledge or consent of the other spouse. Once accepted for filing, the parties are divorced. If the parties have children, the fraudulent document usually assigns sole custody to the filing parent, which is automatically a binding child custody determination. In order to deal with this problem, spouses who suspect that the other spouse might file a fraudulent rikon todoke form are advised to file in advance a special form, known as a “Rikon Fujyuri Moushidesho” (non-acceptance of divorce motion) form, with the local municipal office, to ask the office not to accept any divorce filing without the express knowledge and consent of both spouses.

Whether a kyogi rikon divorce will be recognized and enforced in the United States is an interesting question. This author has provided an expert opinion that, depending on the specific circumstances of the case, a U.S. court should treat a Japanese administrative divorce in a similar way to its treatment of a foreign judicial divorce. Administrative divorces are available in an increasing number of countries, including China, France,[3] Korea, Russia, Taiwan, and Thailand. The key factors for a U.S. court to consider would include the Japanese court had divorce jurisdiction under the jurisdictional rules of the U.S. state, whether one or both of the parties were domiciled in Japan, whether the divorce violated the public policy of the U.S. state, whether the post-divorce conduct of the parties should estop them from disputing the validity of the divorce.[4]

In any event, the designation of custody of children by means of a kyogi rikon divorce raises quite different issues. The author believes that it is most likely that U.S. courts will not treat such a designation as a “child custody determination” issued by a “court” in a “child-custody proceeding,” within the meaning of the Uniform Child Custody Jurisdiction and Enforcement Act.