カテゴリ:TOPICS >   Family law

Recently, in Japan, adultery allegations against a young congresswoman were widely reported.
The woman in question used to be a member of the very popular pop group, “Speed”, but is now a single mother of a son with a hearing disorder, and a member of the House of Councilors.
Last month, one magazine reported suspicions of a love affair between her and a man in Kobe City Council.

In the magazine, there was a picture of her holding hands with the male city councilor while sleeping on the Shinkansen (Japanese bullet train), and according to the magazine, they spent two nights together at her mansion and a hotel.

She admitted her 2-night stay with him, but she emphasized that as he was now in the process of a divorce mediation procedure against his wife, she did not cross a line. "Not crossing a line" indicates that there is no sexual relationship between them so far.

Why did she say "I have not crossed the line?"
Is there any legal significance here?
I do not know the truth (only the two people involved would know this), but let me consider this from a lawyer's point of view.

According to reports, the city councilor has been married and has two children. However, according to him, his marital relationship broke down 5 to 6 years ago, and they began to live separately since the summer of last year, and (as already mentioned) are currently following divorce proceedings.

Under Japanese family law, a husband and wife can divorce by mutual agreement, but if the agreement does not hold, the court can order a divorce only due to the following:

1) An act of adultery.
2) If one party was abandoned by the other in bad faith.
3) If it is not clear whether a spouse is dead or alive after at least three years.
4) In the event of severe mental illness.
5) In the event of a grave cause that deems continuation of the marriage difficult.

Additionally, according to the judgment of the Supreme Court, a divorce claim from the party who caused the failure of the marriage by an act such as adultery, is rejected.
In other words, for example, if a couple has already been separated for a long period of time due to the husband's adultery and it is determined that there is a grave cause that makes the marriage difficult, the husband's divorce claim will be dismissed. This is known as “the theory of the spouse who caused the break up”. Because of this, I guess the councilors couldn’t admit a sexual relationship.

Of course, in this case, because the man has already began to live separately from his wife and insists that the marital relationship has already broken down, there is a possibility that any current case of adultery did not cause the collapse of the marital relationship. However, according to the report, the wife claims that their marital relationship has not yet broken down and argues that he only unilaterally began separation. Therefore, his assertion that the relationship with the congresswoman started after the collapse of the marital relationship might be denied. Considering this risk, maybe they could not admit to a sexual relationship.

By the way, since they were holding hands while sleeping on the Shinkansen and spent two nights together, it would be normal to assume that a physical relationship exists. If so, does claiming that "a line has not been crossed" become disparaging to their honesty?

My guess is as follows:

First of all, we have to know that Japanese judges tend not to recognize the fact of adultery unless there is direct evidence. This is because Japanese judges know well that the theory of the spouse who caused the break up is often actually unreasonable. In general, many cases to which the theory is applicable have continued for a long time, and the marital relationship completely collapses. Therefore, if the judges do not intervene, only an unproductive, negative relationship remains. Thus, the Supreme Court has decided to make an exception to the theory. They stated that:

If the claim is from a spouse who caused the break up, but the separation period is comparable to their age and their cohabitation period, with no children involved, as long as the judge does not recognize any special problems that would result in unfair events due to divorce, such as one party suffering mental, social or financial hardship, the judge cannot deny the claim because it is from the spouse who caused the break up.

However, since the hurdles required by this court judge are high, the theory continues to bring disagreeable results. Therefore, my guess is that judges do not want to get too involved with, or admit too much about the fact of adultery.

Currently, a review of family law is also being discussed in our country. One idea is that if a household exists separately for a certain period of time, regardless of the cause of separation, divorce is granted.

In my opinion, such thought is more appropriate than the theory of a spouse who caused the break up.

209

I would like to explain the regal rules concerning divorce in Japan.

First, in Japan, if a married couple agrees with their divorce and submits the official divorce registration papers to a public office, the divorce is valid. We call this kind of divorce a “mutual agreement divorce”. In this divorce, the reason for divorce is not important. Mere “incompatibility” is acceptable. Actually, we do not even need to write the reason for divorce in the official divorce registration papers.
About 70% of the all divorce cases in Japan are mutual agreement divorces.

If the couple cannot talk with each other about a divorce, the husband or wife who would like to divorce has to file a petition for divorce conciliation to the family court. 
In conciliation, basically two members of a mediation committee intervene between the husband and wife, which lets them talk about divorce smoothly. A conciliation date in the family court is held once a month.
Divorce conciliation is valid only when husband and wife agree to divorce.
Therefore, basically mutual agreement divorce and conciliation divorce are almost the same, except that the place of negotiation is family court and a mediation committee intervenes.

If a conciliation divorce is not valid, the husband or wife who would like to divorce must sue the other party for divorce. If the divorce is permitted in the sentence, the divorce is valid, even if the other party does not give consent to divorce.
However, the court can order divorce only when it recognizes the following items between a couple (Civil act 770Ⅰ).
1) if a spouse has committed an act of unchastity;
2) if abandoned by a spouse in bad faith;
3) if it is not clear whether a spouse is dead or alive not less than three years;
4) if a spouse is suffering from severe mental illness;
5) if there is any other grave cause making it difficult to continue the marriage.
In most cases, plaintiffs insist on 5) “any other grave cause making it difficult to continue the marriage”. Although mere “incompatibility” is not regarded as a “grave cause”, by adding the fact of separation or other items, they can argue it as a grave cause. 

All divorce court cases are not necessarily settled by the judge’s sentences. In the process of the court procedure, they are often settled by judicial settlement. About 30% of all divorce cases are settled by judicial settlement. It is made by the party’s agreement. So it is basically the same of the mutual agreement divorce and conciliation divorce.

049


Parent's access to children should be protected

On July 26, 2015, an article on Sankei newspaper about a contact was distributed to an internet news website as follows:
A man in his 40s fought with his wife at a family court and obtained the final judgement that the man shall see their daughter twice a month.
However, the wife refused this contact order due to their daughter's illness.
Then, the man applied to the family court for its indirect enforcement and he obtained the judgement that if the wife refuses the contact, she must pay a fine of 10,000 yen per one time.
However, the man could never see his daughter as yet, so he made an appeal.
Nagoya high court judged the wife intentionally refused the contact because there were no submitted materials that objectively confirm their daughter's illness.
Finally the court decided to increase the amount of the fine by four times.
I have been considering that it is a serious problem that contacts between parents and children have not been executed properly in Japan, so this judgement by Nagoya high court seems to be remarkable and revolutionary.
In order to deal with this problem, the rule that "parent's access to children has to be protected" should be respected thoroughly. 
This rule has not been observed properly because its enforceability is weak and easy to be broken with some excuses.
I believe we should keep it in mind that marital problems and parent-child problems are different issues.

bride038


Prenuptial Agreement
 
Prenuptial Agreement is a contract signed by two people before they marry in order to define conditions on their property, lifestyle and so on after they get married.
This kind of contract is popular in the US; meanwhile, our initial thought was that it does not necessarily fit in the Japanese society.
However, these days, a Prenuptial Agreement has been signed by not only international married couples but also Japanese couples.

What is the "Prenuptial Agreement"?

(1) "Memorandum"
This is an agreement to be freely drafted by a couple, and it is then concluded by signatures and sealed. So, it is easy and flexible to create it.
However, it will not have the strong legal effect.

(2) "Contract"
This is a legally binding contract such as a bought and sold note or lease contract.
You can enhance the legal effect of the contract further by drafting it based on a lawyer's advice or entrusting lawyer to the drafting.

(3) "Notarized Deed"
This is a public document that is notarized by a notary officer. You should follow the specified procedure and pay fees.
Although the content of the document is the same as the Contract (as mentioned (2) above), if you have your contract notarized, the legal effect may become enhanced.

(4) "Contract on Property of Husband and Wife"
This is a contract defined in the Article 755 of the Civil Code.
This is an agreement only to define the provisions on the property, and you can sign it only before your marriage.
The articles in this Contract may be asserted against a third party after such articles are registered. 
After you have your contract registered, you cannot change the articles.

In addition, we have the regulation in the Civil Code as follows:
In Article 754, either a husband or wife may at any time during the marriage rescind the contract; provided, however, this will not harm the rights of a third party.
Therefore, if a couple signs this contract after they get married, either a husband or wife may rescind it in principle.
Therefore, please be careful.

As stated above, if you sign your own Prenuptial Agreement in accordance with each individual situation, your desired lifestyle might be esteemed legally also.
In Japan, as we have tenaciously considered the supposition of divorce before a marriage as a taboo, the Prenuptial Agreement has not been popular yet.
However, the more diversified styles among couples and marriages are approved socially, the more popular Prenuptial Agreements become.

We can help you draft your Prenuptial Agreement.
The expert lawyers can give you advice or make articles in accordance with your view of marriage and desired lifestyle.
Please feel free to contact us for any inquiries. 

kid0026-009

These days, when international marriage couples divorce, the number of cases that lead to disputes over child custody has increased.

Foreign former husbands and wives come to our office, because they cannot or can rarely meet their children after they have divorced.

In Japan, to deal with a child custody case, we first have to apply to the family court for conciliation.
If we cannot come to an agreement about the number of visitations, we will ask for a judgment by the family court.

By the way, we always have a problem where the Japanese family court allows too few occasions for them to meet their children.

The following statistical table has been published by the court.

The number of visitation

Total

More than once a month

More than once every 2~3 months

More than once every 4~6 months

During a long vacation

The others

Go on a visit

×

5,736

3,327

884

259

113

1,153

766

4970


According to this table, “More than once a month” is the most time granted.
However, in general, we are allowed visitation only once a month for several hours each time.
In contrast, in California, they can meet their children once a week, and it is usual for them to have their children visit every other weekend.

I’m not really sure where the cause lies.
Many divorced husbands and wives are reluctant to have their children meet the other parent.
I think that Japanese people have a strong “household” consciousness, so once they divorce and leave their house, they feel they are no longer family.

However, child custody is a system for children.
It would be best for children to be loved by both of their parents.
Moreover, as child-rearing is really hard, parents should bring up their children in cooperation with the other parent even after they have divorced.

I think that we have to change our poor system of child custody in Japan. 

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