A divorce by agreement is possible in mediation?

Reply by Attorney Ms. Sakura UCHIKOSHI

 

 

 

 

 

◎Although there is a method, it had better be positive.

Both the husband and the wife agree on divorce by mediation, however two persons or either one may desire a divorce by agreement as feeling resistance etc. and  submits a notification of  "divorce by mediation."

In each family register of the husband and the wife, it is indicated as "○ year○ month ○ day , divorce-by-agreement notification with ・・・" in the case of divorce by agreement, and also indicated as "○ year ○ month ○ day , divorce-by-mediation formation with ・・・"  in the case of divorce by mediation. The latter case, probably you will hesitate to mediate because an image of mediation is like your divorce was not formed with agreement or you and your husband disputed heavily.

In that case, both of you can sign up or put one’s seal on notification of divorce by agreement and submit it. If you take that way, you had better be cleared that both of you agree about the expense of bringing up a child, settlement of asset, reparation, division of pension on documents of mediation. On documents of mediation, it is written that both of you agree on divorce by agreement. But even though that agreement is written on the documents, divorce by agreement is not formed. You should write down who will submit a notification of divorce(conveniently it is usual that one who remove family register will submit) and one entrust a notification of divorce with one’s sign and seal to another who will submit it at mediation.

However, it is troublesome if one who does not submit a notification of divorce will submit an unuccepted report (notification of the purport that a divorce notice is not received). If one just forgot about an unaccepted report, you can ask to withdraw it. But if one does not withdraw it easily, you may be in a trouble. In that case, you have to start to proceed to offer mediation again.

 Considering the possibility of such a trouble, I would recommend to realize divorce through divorce by mediation.  I believe that divorce is divorce. It is the same a divorce resolved by mediation as a divorce resolved by agreement. I am sure that you make a new start by overcoming difficulties in either way (a lawsuit of divorce is also the same, you worked hard and resolved). You should not mind. I strongly recommend to take a certain way without taking risk.

I am not saying that divorce by agreement is better than divorce by mediation. But if either the husband or the wife is abroad on the day of a formation of divorce, you could form a divorce by agreement or form a divorce by mediation on the basis of representative attendance. If the husband or the wife is abroad, he/she had better sign up or put one’s seal on a notification of divorce in advance and hand it over to her/his representative for handing over to other parties. But if either one is away for a short business trip etc…, it is better to change the due date or assign another due date.  It is certain that the person himself/herself had better attend when mediation is formed including divorce case.

Otherwise, there is a way that the Family Court will hold hearing instead of mediation (Domestic-proceedings Article 284 the 1st clause of adjective law). This is the hearing by the referee performed by authority in consideration of all situations when the Family Court admits being considerable, it will decide, if the party concerned to an objection cannot be found within two weeks, and it has the same effect as an irrevocable judgment.   

 

Original article on the WAN website　(February  21, 2013)

http://wan.or.jp/reading/?p=9142

 

Translated and adapted from the WAN website by OGAWA.M.

Unwillingly Signed Divorce Paper: A Case of Non Japanese Couple with Different Nationalities

Question:

I am a graduate student from country A.  I have a husband, who is from country B, and a child, who is two years old.  My husband and I met each other as foreign students and got married in Japan.  The three of us still live in Japan. 

My husband is not interested to take care of the child and has started to complain, “I want more free time,” and “I cannot get relaxed because of the kid.”

The other day, he asked me to sign my name to a divorce paper, saying that even though it is not legally effective, it makes him feel easy and free.

I signed the form without any intention to get a divorce as I was afraid that if I refuse it would adversely affect our relationship.

I hope it will not cause any problem just to sign a divorce paper as he says, but is that true?  (Ms. D in Osaka)
                                                                                                              

                                                                                                                                                                                                            

                                                                                          
                                                                                                  
Reply by UCHIKOSHI Sakura 

You are both foreign residents in Japan, one from country A, and the other from country B.  If both of you are qualified for stay in Japan for academic purpose as a teacher or a researcher (as is specified in the annexed table 1 of the Immigration Control Act) and have been living in Japan for more than five years, you are considered to have “a habitual residence” (a place where you usually live)  in Japan.

If a married couple have different home countries (or their nationality is different from each other) and have the same habitual residence, the law of their habitual residence is applied (refer to Article 27 and 25 of the Act on General Rules for Application of Laws).  Therefore, in your case, the laws of Japan should be applicable.

If your husband goes to city office and hands in the divorce paper without your consent, it will be accepted and formally processed.  You can ask for arbitration or bring the case to court afterwards  (refer to Article 17 and Clause 1, Article 18) , it will be very difficult for you to establish that the divorce is invalid.

There is a system to avoid such difficulty in advance by submitting an application for nonacceptance of a divorce paper, but since neither you nor your husband have family register in Japan, you can not apply for such nonacceptance.

I advise you to get the signed divorce paper back from your husband before it becomes too late.  If all he wants is to feel free, why don’t you talk with hin to find other solutions than divorce. 


Original article on the WAN website　(November 21, 2011)
http://wan.or.jp/help/law/



Translated and adapted from the WAN website by FUKUOKA.A.A