Unique Considerations When Either or Both Spouses are a Foreign National

Unique Considerations When Either or Both Spouses are a foreign national

Compared to a divorce between Japanese nationals, there are many difficult issues that must be considered when either or both spouses are a foreign national (divorces involving a foreign national are commonly known as 国際離婚 in Japanese) such as which country’s laws to follow and which country’s courts to use.

Do you have these problems?

We are frequently consulted on matters such as the following.

  • I want to get divorced with my foreign national spouse.
  • My foreign national spouse returned back to his or her country. Can I get divorced?
  • Can a husband and wife that are foreign nationals get divorced in Japan?

Why are divorces involving foreign nationals unique?

With the world becoming ever more globalized, relationships between married couples are also changing. The number of foreign nationals seeking to get divorced in Japan as well as the number of Japanese and foreign national couples seeking to get divorced in Japan is on a constant rise.
Unlike a Japanese couple getting divorced in Japan, there are unique issues where one or both of the spouses is a foreign national. These issues include

  • Which country’s laws to follow (governing law issue)
  • Which country’s courts to use (jurisdictional issue)

Which country’s laws to follow

When a divorce in Japan involves a foreign national, the first issue is which country’s laws to follow.
In Japan, the following law will apply, in the following order, in accordance with the “Act on General Rules for Application of Laws.”

  1. Where the national law of the husband and wife are the same, their national law.
  2. Where they do not have the same national law, by the law of the husband and wife’s common habitual residence.
  3. Where there is no law of the husband and wife’s common habitual residence, then the law of the place closely connected with the husband and wife.
  4. Where either the husband or wife is a Japanese national with a habitual residence in Japan, then according to the laws of Japan

Example: In case of a husband and wife living in Japan

Where the husband is a Japanese national and the wife is a foreign national, and if both of them live in Japan, and intend to get divorced in Japan
→Because they are nationals of different countries, number 1 does not apply, and because they have a common habitual residence which is Japan, 2 will apply, and they can get divorced in accordance with the laws of Japan

Example: Where two foreign nationals intend to get divorced in Japan

Where a Chinese husband and a Chinese wife are thinking of getting divorced in Japan
→They can get get divorced in accordance with the laws of the People’s Republic of China.

Which country’s courts to use

If either or both spouses are from a foreign country, and if a court will be used for the divorce procedures, there is the issue of which country’s court to use. It is important to consider this issue of which country’s court to use, because of the burden in getting divorced through court.

Example: When a husband and wife live in Japan

If the husband and wife have their principal residence in Japan, because a court in Japan will have jurisdiction, you will be able to use a court in Japan to get divorced.

Example: When seeking a divorce against someone living overseas

If your spouse lives overseas and if you will be seeking a divorce against that spouse, in most cases, you will need to use the court in the country where that spouse lives.

Advice from our lawyers

When getting divorced, in addition to the dispute concerning the divorce itself, problems such as those involving parental authority over the children, division of assets, and compensation for emotional damages frequently occur. We highly recommend that you seek advice from experienced legal counsel where these issues are present, but especially where a foreign national spouse is involved, as it is necessary to consider governing law and jurisdictional issues, which can be extremely complicated. At Verybest, our experienced lawyers will guide you through this complicated area of the law.

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