An Employee is Involved in a Status-Related Case (e.g., Divorce) in Japan: How is International Jurisdiction Determined?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

When employees and their families navigate international assignments, personal status matters such as divorce, child custody, adoption, or inheritance can become complex legal issues with cross-border implications. If an employee or their family member becomes involved in such a "status-related case" (mibun kankei jiken, 身分関係事件) with connections to Japan, a primary question is whether Japanese courts have the international adjudicatory jurisdiction to hear the matter. Unlike purely commercial disputes, status-related cases often involve deeply personal rights, the welfare of children, and significant public interest, leading to specific jurisdictional considerations.

Historically, Japan's statutory law on civil procedure did not contain explicit, comprehensive rules for international jurisdiction in many status-related cases. Jurisdiction was often determined based on general principles of "sound reason" (jōri, 条理) derived from domestic venue rules and influenced by landmark Supreme Court precedents. However, significant amendments, notably to the Personnel Litigation Act (Jinji Soshōhō, 人事訴訟法) and the Domestic Relations Case Procedure Act (Kaji Jiken Tetsuzukihō, 家事事件手続法) (primarily effective from 2019, building on earlier discussions such as those around the time of the reference PDF's 2016 publication), have now codified many of these rules, providing greater clarity and predictability.

This article provides an overview of how international jurisdiction is determined in Japan for key types of status-related cases, reflecting these modern legislative standards.

Japanese law distinguishes between:

  1. Personnel Litigation Cases (Jinji Soshō Jiken, 人事訴訟事件): These are typically adversarial proceedings concerning fundamental personal status, such as actions for divorce, annulment of marriage, determination of legal parentage (e.g., paternity disputes, recognition of a child), or revocation of adoption.
  2. Domestic Relations Cases (Kaji Jiken, 家事事件): These often involve non-contentious matters or issues requiring ongoing judicial supervision and adjustment, such as child custody arrangements, child support, division of marital property, adult guardianship, and estate administration. Many of these are handled through specialized family court procedures.

The jurisdictional rules aim to connect the case to a forum that has a significant interest in the parties' status, can effectively gather evidence, and whose decisions are likely to be recognized and respected. The welfare of children is a paramount consideration in cases involving them.

Jurisdiction in Divorce Cases (Rikon Jiken, 離婚事件)

Divorce jurisdiction has a rich history in Japanese case law, which has heavily influenced the codified rules.

  • Traditional Case Law:
    • The Supreme Court judgment of March 25, 1964 (Minshū Vol. 18, No. 3, p. 486), primarily concerning divorces between foreign nationals, established a defendant-domicile rule as the primary basis for jurisdiction in Japan. Exceptions were recognized for cases where the plaintiff was domiciled in Japan and had been abandoned, the defendant was missing, or similar circumstances existed.
    • The Supreme Court judgment of June 24, 1996 (Minshū Vol. 50, No. 7, p. 1451), while acknowledging the importance of the defendant's domicile, emphasized a more holistic approach based on fairness between the parties, proper and prompt administration of justice, and overall connections to Japan, particularly in "emergency jurisdiction" scenarios (e.g., where a foreign divorce decree was not recognizable in Japan, leaving a party in limbo).
  • Codified Rules (e.g., Article 3-2 of the amended Personnel Litigation Act): The modern rules, largely reflecting and refining these precedents, grant Japanese courts jurisdiction in divorce actions under several circumstances, including:
    1. If the defendant is domiciled in Japan.
    2. If both spouses are Japanese nationals (even if residing abroad, though other factors might lead a court to decline in specific cases under "special circumstances" if applicable).
    3. If the last common domicile of the spouses was in Japan, provided that one of them is still domiciled in Japan.
    4. If the plaintiff is domiciled in Japan, AND "special circumstances" exist. These "special circumstances" explicitly include situations where the defendant is missing, where a foreign divorce judgment obtained by the defendant is not recognized in Japan, or other situations where it would be unjust not to allow the plaintiff to sue in Japan. This codifies the "Japanese national clause" (Nihonjin jōkō, 日本人条項) principle where if one spouse is a Japanese national habitually residing in Japan, Japanese law applies to the divorce (AGRAL Art. 27 proviso), which often correlates with Japanese jurisdiction.

Jurisdiction in Parent-Child Relationship Cases (Oyako Kankei Jiken, 親子関係事件)

Cases involving children prioritize the child's welfare and stability.

These actions (e.g., establishing or denying paternity, actions for recognition of a child - ninchi, 認知) were traditionally handled by analogy to divorce jurisdiction rules. The amended Personnel Litigation Act (e.g., Article 4) and Domestic Relations Case Procedure Act (e.g., Article 3-2 for related domestic cases) now provide more specific grounds, often looking to:

  • The child's domicile in Japan.
  • The defendant's domicile in Japan.
  • The Japanese nationality of a key party (e.g., the child or a parent whose status is in question), especially if that party is domiciled in Japan.
    The overarching principle is to ensure that a court with a genuine connection to the child and the ability to make a well-informed decision can hear the case.

2. Adoption Cases (Yōshi Engumi Jiken, 養子縁組事件)

The paramount consideration is the child's welfare and the suitability of the prospective adoptive parents.

  • Codified Rules (e.g., Article 3-5 of the amended Domestic Relations Case Procedure Act): Japanese courts have jurisdiction if:
    • The prospective adoptive parent is domiciled in Japan.
    • The child to be adopted is domiciled in Japan (unless the adoption is by a Japanese national residing abroad, where other rules may apply).
      This ensures that the court best placed to assess the home environment and the impact of the adoption on the child can exercise jurisdiction.

3. Child Custody and Guardianship Matters (Ko no Kankoken Shitei, 子の監護権者指定等)

These include initial determinations of custody, changes to custody orders, and visitation rights.

  • Paramountcy of Child's Welfare: The child's welfare is the guiding principle.
  • Codified Rules (e.g., Article 3-8 of the amended Domestic Relations Case Procedure Act): Jurisdiction is primarily based on the child's domicile in Japan. This allows the court most familiar with the child's current circumstances and needs to make decisions.
  • Custody Ancillary to Divorce: If a Japanese court has jurisdiction over a divorce proceeding, it generally also has jurisdiction to decide on matters of child custody concerning the children of that marriage (Article 3-4, paragraph 1 of the amended Personnel Litigation Act). This promotes a comprehensive resolution of interrelated family matters. However, if the child is domiciled abroad, the court must still consider if exercising custody jurisdiction is appropriate under the "special circumstances" test, always keeping the child's best interests in focus. International child abduction concerns (under the Hague Convention) can also significantly impact custody jurisdiction.

Jurisdiction in Support Obligation Cases (Fuyō Kankei Jiken, 扶養関係事件)

Claims for child support or spousal support are critical for the financial well-being of the obligee.

  • Protection of the Support Claimant: Jurisdictional rules aim to facilitate access to justice for the person seeking support.
  • Codified Rules (e.g., Article 3-10 of the amended Domestic Relations Case Procedure Act): Japanese courts have jurisdiction if:
    • The support obligee (the person entitled to support) is domiciled in Japan.
    • The support obligor (the person from whom support is sought) is domiciled in Japan.
      This dual basis ensures that either the claimant's or the respondent's connection to Japan can ground jurisdiction.

Jurisdiction in Inheritance Cases (Sōzoku Kankei Jiken, 相続関係事件)

Inheritance matters can involve both contentious lawsuits (e.g., disputes over who is an heir, challenges to a will) and non-contentious family court proceedings (e.g., estate division, appointment of an estate administrator).

  • Contentious Inheritance Lawsuits (CCP Article 3-3, items 12 & 13): For lawsuits concerning inheritance rights, claims regarding a reserved portion (iryūbun, 遺留分), or claims regarding gifts or bequests, Japanese courts have jurisdiction if the decedent was domiciled in Japan at the time of their death. The rationale is that the deceased's last domicile is often the central point for their estate and interested parties. The location of inherited assets within Japan can also independently ground jurisdiction for claims specifically relating to those assets.
  • Non-Contentious Domestic Relations Inheritance Cases (e.g., amended Domestic Relations Case Procedure Act Article 3-11): For proceedings like estate division (isan bunkatsu, 遺産分割), appointment of an estate administrator, or acceptance/renunciation of inheritance:
    • Primary jurisdiction lies with Japanese courts if the decedent's last domicile was in Japan.
    • Jurisdiction can also be based on the location of inheritable property in Japan.
    • Significantly, for estate division proceedings, parties can now agree on Japanese court jurisdiction under certain conditions (Article 3-11, paragraph 4).

Analyzing Scenarios

Let's apply these principles to scenarios adapted from Case 30, No. 29 of the reference material, keeping in mind the codified rules:

Scenario 1: Divorce and Child Custody (Adapted from Problem 1)

  • Facts: Husband A (national of Country X) and Wife B (Japanese national) previously lived in Country X. Following marital breakdown, Wife B returned to Japan with their child, C (national of Country X), with Husband A's consent. Wife B now wants to sue Husband A (who remains in Country X) for divorce and custody of C in a Japanese court.
  • Analysis:
    • Divorce Jurisdiction:
      • Wife B is a Japanese national habitually residing in Japan. Under the codified rules (e.g., Article 3-2, item 4 of the amended Personnel Litigation Act, reflecting the "Japanese national clause" principle), a Japanese court would likely have jurisdiction over the divorce action initiated by her. Even without this specific clause, her domicile in Japan coupled with "special circumstances" (e.g., if A's conduct made it difficult for her to sue in Country X) could ground jurisdiction.
    • Custody Jurisdiction for Child C:
      • Child C is now domiciled in Japan with Wife B. Under the amended Domestic Relations Case Procedure Act (e.g., Article 3-8), the child's domicile in Japan is a strong basis for Japanese courts to assume jurisdiction over custody matters.
      • Additionally, since the Japanese court has jurisdiction over the divorce, it would also generally have jurisdiction over the ancillary matter of child custody (amended Personnel Litigation Act Article 3-4, paragraph 1). The court would still assess if exercising this jurisdiction is in C's best interests.

Scenario 2: Adoption by Couple Residing in Japan (Adapted from Problem 2)

  • Facts: Spouses D and E (both nationals of Country Y) are domiciled and living in Japan. They wish to adopt Child G (3 years old, also a national of Country Y), who lives in Country Y with G's mother, F (who is E's sister). D and E apply to a Japanese court for an adoption order.
  • Analysis:
    • Adoption Jurisdiction: The prospective adoptive parents, D and E, are domiciled in Japan. Under the amended Domestic Relations Case Procedure Act (e.g., Article 3-5, item 1), the domicile of the prospective adoptive parent(s) in Japan is a primary ground for Japanese courts to exercise jurisdiction over adoption proceedings.
    • Therefore, the Japanese court would likely have jurisdiction to hear the adoption application, even though the child is currently domiciled abroad. The court's focus would then be on whether the substantive requirements for adoption (under the applicable law, determined by AGRAL Article 31) are met and whether the adoption is in Child G's best interests.

Conclusion

The determination of international jurisdiction in status-related cases in Japan has evolved from a reliance on case law and general principles to a more codified system under amended procedural acts. These rules generally prioritize connecting factors that are most relevant to the specific family relationship at issue – such as the domicile of the parties (especially the defendant or the weaker party like a child or support obligee), the habitual residence of a Japanese national, the last common marital domicile, or the location of a child. The overarching aim is to provide access to justice in appropriate cases while ensuring that decisions are made by courts with a genuine connection to the dispute and the parties involved, always with a particular emphasis on the welfare of any children concerned. For employers with an international workforce, being aware of these jurisdictional principles can be helpful when employees face personal status issues with a Japanese dimension.