February 11, 2014
Globalization does not always bring about happy endings.
When an internationally married couple is going through a contentious divorce, in which country’s court of law should the dispute be resolved?
Currently, there is no clear rule on this matter. All the courts can do is to decide the jurisdiction depending on the case. This situation has long caused huge headaches for those involved.
Belatedly, Japan’s Justice Ministry has asked its advisory body, the Legislative Council, to come up with proposals on the issue. We hope the council will swiftly put together a set of easy-to-understand rules.
According to a survey by the Ministry of Health, Labor and Welfare, there were 16,000 divorces in Japan in 2012 involving a non-Japanese spouse. This is twice the figure of 20 years ago, and accounts for 7 percent of all divorces.
In the case of international divorces, the question of which country to seek legal recourse in is an important matter. Going through the legal process in a country with a foreign language and a foreign legal system is grueling work.
Even if the plaintiff is Japanese, there is no guarantee that the arbitration or trial can be held in Japan if the spouse resides in a foreign country. This is because consideration should be given to the spouse who would be the defendant in the case.
In Japan’s current legal system, the tentative basic rule is that court proceedings should be undertaken in the country of the defending spouse’s residence. There have been exceptions, however, when the defending foreign spouse is missing, for example. Japanese courts deal with such cases even if the defendant does not reside in Japan.
In some previous cases when the defendant was not in Japan, Japanese courts went ahead with legal proceedings on the grounds that the divorce approved by a court in the spouse’s country was invalid in Japan.
The individual situations of each divorce are so varied that setting uniform standards is a difficult process. This has long been considered an international conundrum since countries and cultures have different acceptance levels when it comes to divorce.
Unlike in Japan, where many couples divorce by agreement, divorce by trial is the usual procedure in a number of countries. Some countries basically do not allow divorce.
Given these factors, it would be inappropriate to create a system based only on Japan’s situation. A broad international perspective is necessary.
In recent years, parts of the European Union have attempted to establish common rules about jurisdiction of divorce court proceedings. Under these proposals, initial jurisdiction would be in the hands of the couple’s current country of residence, second jurisdiction would be in the country where the couple most recently lived together, and so on.
We need deeper discourse to decide what rules are appropriate for Japan. We would also have to contemplate sharing those rules with some countries.
The important thing is to establish standards that are as comprehensible and fair as possible to lighten the load of the parties involved and smooth their paths toward restarting their lives after divorce.
This is a cumbersome business, but the number of cross-border marriages and divorces will continue to grow. The endeavors of the legal system must not be left behind by changes in the real world.
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