My Employee is Divorcing in Japan: What Law Will Govern the Dissolution and Its Effects?

The dissolution of a marriage involving expatriate employees or individuals with diverse international backgrounds presents complex legal challenges, particularly concerning which country's law will govern the divorce itself and its various consequences. When such proceedings occur in Japan, or have a significant connection to Japan, the Act on General Rules for Application of Laws (AGRAL) (Hō no Tekiyō ni Kansuru Tsūsokuhō, 法の適用に関する通則法), specifically Article 27, provides the framework for determining the applicable law for the divorce. Ancillary matters, such as property division and spousal support, often require separate choice-of-law analyses.

This article examines Japan's private international law rules pertinent to divorce, including the determination of the governing law for the divorce decree, the method of divorce, and the financial settlements that often accompany marital dissolution.

Governing Law of Divorce Itself in Japan (AGRAL Article 27)

AGRAL Article 27 establishes a hierarchical approach for determining the law applicable to divorce (rikon, 離婚). This provision effectively adopts, by reference (mutatis mutandis application), the structure of AGRAL Article 25, which deals with the general effects of marriage. This means a step-by-step analysis is undertaken to find the governing law:

1. Common National Law of the Spouses (Dōitsu Honkoku-hō, 同一本国法): If both spouses share the same nationality at the time the divorce is sought, their common national law will govern the divorce.
2. Law of Their Common Habitual Residence (Dōitsu Jōkyosho-chi-hō, 同一常居所地法): If the spouses do not share a common national law, but they have a common habitual residence, the law of that place of habitual residence will apply.
3. Law of the Place with the Closest Connection (Sai-missetsu Kankei-chi-hō, 最密接関係地法): If neither a common national law nor a common habitual residence exists, the divorce will be governed by the law of the place with which the divorce is most closely connected. The determination of the "closest connection" involves a qualitative assessment of various factors, such as the duration and location of the marital life, the place where the marital breakdown occurred, the current residences of the spouses, and the location of any children.

Principle of "Mutable Connection" (Henkō-shugi, 変更主義): It is crucial to note that these connecting factors (nationality, habitual residence, closest connection) are determined as of the time the divorce is sought or, in the case of court proceedings, typically at the time of the conclusion of oral arguments in the fact-finding instance. This "mutable" approach means that changes in the parties' circumstances during the marriage can alter the applicable law.

The "Japanese National Clause" (AGRAL Article 27, Proviso)

AGRAL Article 27 contains a significant proviso, often referred to as the "Japanese national clause" (Nihonjin jōkō, 日本人条項):
"...provided, however, that if one of the spouses is a Japanese national who has their habitual residence in Japan, divorce shall be governed by Japanese law."

This clause mandates the application of Japanese law if one spouse is a Japanese national habitually residing in Japan at the time of the divorce, regardless of the other spouse's nationality or habitual residence, and irrespective of where the closest connection might otherwise lie.

• Rationale: This provision was largely introduced for practical convenience, particularly to simplify procedures at municipal offices handling family registration (koseki, 戸籍). If Japanese law applies, the requirements for divorce are clear, facilitating registration.
• Criticisms: The Japanese national clause has faced criticism. Some argue it can lead to results inconsistent with the principle of equality between Japanese and non-Japanese nationals in private international law. It can also be perceived as facilitating "forum shopping" or "runaway divorces" (nigekaeri rikon, 逃げ帰り離婚), where a Japanese spouse returns to Japan primarily to obtain a divorce under Japanese law, potentially to the disadvantage of the foreign spouse who may have stronger connections to another legal system.

Scope of the Divorce Governing Law (Part 1): Method of Divorce

The law determined by AGRAL Article 27 governs not only whether a divorce is permissible and the grounds upon which it can be granted, but also the method by which the divorce can be effected. This includes whether the divorce can be achieved by mutual agreement alone or if it requires the intervention of a court or another official body.

• If the Governing Foreign Law Permits Divorce by Agreement: If the applicable foreign law allows for divorce by mutual consent (similar to Japan's divorce by agreement, kyōgi rikon, 協議離婚), then such a divorce can generally be effected in Japan. The formalities for such an agreed divorce would then be governed by AGRAL Article 34 (which allows for compliance with either the lex causae of the divorce or the lex loci actus – the law of the place where the agreement is effected).
• If the Governing Foreign Law Requires Court/Institutional Intervention: This presents more complexity:
  • Intervention by Non-Judicial Bodies: If the foreign law requires involvement of a religious court or administrative body not found in Japan, Japanese courts might, in certain circumstances, "substitute" their own procedures if the foreign requirements are aimed at verifying substantive grounds for divorce akin to a judicial process.
  • Intervention by a Court: If the foreign law mandates a judicial divorce, the question arises whether Japanese non-contentious or mediated divorce procedures can suffice.
    • If the foreign law itself recognizes procedures equivalent to Japanese divorce mediation (chōtei, 調停) or a judicial decision in lieu of agreement (shinpan, 審判), then using these Japanese procedures is generally unproblematic.
    • However, if the foreign law strictly requires a contested judicial proceeding for divorce, the validity of a Japanese mediated or shinpan divorce can be debated. While older practice sometimes permitted these, the concern is that they may not fully replicate the judicial scrutiny intended by the foreign law, especially if that law does not permit divorce based solely on mutual consent validated by a court. More recent approaches tend to examine the underlying purpose of the foreign law's requirement for judicial intervention. If the foreign law allows for simplified judicial procedures when divorce grounds are not contested or based on breakdown, there may be more scope for Japanese non-adversarial processes. Article 277 of Japan's Domestic Relations Case Procedure Act (Kaji Jiken Tetsuzukihō, 家事事件手続法), which allows for a judicial decision equivalent to an agreement, is sometimes considered a tool in such situations, provided the substantive requirements of the governing foreign divorce law are met.

Scope of the Divorce Governing Law (Part 2): Financial Consequences

The financial aspects of divorce are often complex. Japanese domestic law (Civil Code Article 768) provides for a "distribution of property" (zaisan bun'yo, 財産分与) upon divorce, which can encompass several elements: (i) liquidation of assets acquired during the marriage, (ii) post-divorce spousal support, and (iii.e.) solatium or damages for the breakdown of the marriage.

In private international law, while a minority view might treat all these financial consequences under the single umbrella of the divorce governing law, the prevailing approach in Japan is to "unbundle" these issues and determine the applicable law for each component separately.

1. Liquidation of Marital Property: This is generally considered an issue of the matrimonial property regime (fūfu zaisan-sei, 夫婦財産制) and is thus governed by the law applicable under AGRAL Article 26 (which, like Article 25, uses a hierarchical system of common national law, common habitual residence law, or closest connection, but also allows parties to choose the applicable law for their property regime under specific conditions).
   • A point of discussion exists regarding what is sometimes termed "substantive" or "equitable" distribution aspects (beyond strict title-based division) that are closely linked to the divorce itself. Some argue this "narrower sense of zaisan bun'yo" should fall under the divorce governing law (Article 27), while others maintain that all property division aspects belong under Article 26.
2. Post-Divorce Spousal Support/Alimony (Rikon-go no Fuyō, 離婚後の扶養): This is specifically addressed by Japan's Act on the Law Applicable to Support Obligations (Fuyō Gimu no Junkyo-hō ni Kansuru Hōritsu, 扶養義務の準拠法に関する法律). Article 4 of this Act stipulates that post-divorce support is governed by "the law that was applied to the divorce." Thus, the law determined under AGRAL Article 27 for the divorce itself will also govern post-divorce support claims between the former spouses.
3. Solatium/Damages for Divorce (Rikon ni tomonau Isharyō, 離婚に伴う慰謝料):
   • Damages for the fact of divorce/breakdown: Compensation for mental suffering caused by the divorce itself or by the conduct leading to the marital breakdown is generally governed by the same law that governs the divorce (AGRAL Article 27). This is because such claims are seen as intrinsically linked to the dissolution of the marital status.
   • Damages for specific tortious acts: If, however, damages are sought for specific wrongful acts committed during the marriage that would independently constitute a tort (e.g., domestic violence, defamation), even if these acts contributed to the divorce, the claim for damages arising from those specific acts may be characterized as a tort claim. In such cases, the applicable law would be determined by the rules for torts (AGRAL Article 17 et seq. – generally, the law of the place where the result occurred, subject to foreseeability and Article 22 public policy limitations). It's noteworthy that AGRAL Article 20 (flexibility clause for torts) could potentially lead back to the application of the divorce governing law if the tort is intrinsically linked to the marital relationship.

Analyzing a Scenario

Let's consider an adapted scenario based on the problem in Case 30, No. 16:

• Facts: Husband A (national of Country X) and Wife B (national of Country Y) married and lived together in Country Z for 10 years. Their relationship deteriorated, and Wife B returned to Japan, where her parents reside. Wife B now files for divorce mediation in a Japanese court.
• Analysis:
  1. Governing Law of the Divorce (AGRAL Article 27):
     • Common National Law: A (Country X) and B (Country Y) do not share a common nationality.
     • Common Habitual Residence: This depends on B's status in Japan. If her move to Japan is very recent and their established marital life was entirely in Country Z, Country Z might still be considered their last common habitual residence for the purpose of the breakdown. However, if B has genuinely re-established her habitual residence in Japan and A remains in Country Z, there is no current common habitual residence.
     • Closest Connection: If no common habitual residence, the court will look for the place with the closest connection. Factors would include the 10 years of marital life in Country Z, the reasons for B's move to Japan, B's current ties to Japan, and A's connections. Country Z law (as the law of the long-standing marital domicile) is a strong candidate. Japanese law might be considered if B has strong roots in Japan and the marital breakdown is substantially linked to her life or circumstances after returning to Japan.
  2. Method of Divorce: Suppose Country Z law (if applicable) requires a court judgment for divorce. The question is whether Japanese divorce mediation can lead to a recognized divorce. If the mediation results in an agreement that mirrors what a Country Z court would approve under its substantive divorce grounds, it might be acceptable, possibly formalized via a Japanese court decision equivalent to an agreement (Article 277 of the Domestic Relations Case Procedure Act).
  3. Financial Claims (Assuming, for this part, that A and B had chosen Country X law to govern their matrimonial property regime under AGRAL Article 26):
     • Liquidation of Marital Property: Governed by Country X law, due to their valid choice of law for their property regime.
     • Post-Divorce Support for B: Governed by the law that was actually applied to their divorce (e.g., Country Z law or potentially Japanese law, as determined above).
     • Solatium/Damages for B: For general suffering due to divorce, this would also be governed by the law applied to the divorce. If B also claims damages for specific acts of abuse by A during their time in Country Z, that portion might be treated as a tort claim, with Country Z law (as the place where the result occurred and likely where the acts occurred) applying under AGRAL Article 17, subject to Article 22.

Implications for Expatriate Employees and International Families in Japan

The rules governing international divorce in Japan are structured but can lead to complex analyses. For expatriate employees and their families:

• Habitual Residence is Key: The habitual residence of the spouses plays a significant role. Long-term assignments in Japan can lead to Japanese law becoming relevant.
• The Japanese National Clause: If one spouse is a Japanese national habitually residing in Japan, Japanese law will likely apply to the divorce itself, which can have significant consequences.
• Unbundling Financial Issues: Financial settlements are not treated monolithically. Different laws can apply to property division, support, and damages, requiring careful legal advice.
• Methods of Divorce Vary: The possibility of an amicable, agreement-based divorce versus a court-adjudicated one will depend on the governing foreign law if Japanese law is not applicable.

Conclusion

Japan's private international law provides a hierarchical and nuanced approach to determining the applicable law in international divorce cases. While aiming for results that align with the parties' closest connections, specific provisions like the "Japanese national clause" and the detailed unbundling of financial consequences mean that outcomes can vary significantly based on the specific factual matrix. For individuals and employers navigating the complexities of marital dissolution with cross-border elements involving Japan, a thorough understanding of AGRAL Article 27 and related provisions is essential for anticipating the legal landscape and making informed decisions.