Even if your spouse is not agreeing to get divorced, there are 5 legal grounds upon which you can get divorced without the consent of your spouse
The Japanese Civil Code sets out five statutory grounds upon which you can get divorced even where your spouse is refusing. This article explains these 5 statutory grounds.
The legal requirements to get a divorce
As a general rule, you cannot get divorced if either spouse is not agreeing
There are three methods to get divorced.
First, you should try to get divorced through a “divorce by agreement” (協議離婚 or "kyogi rikon"). Article 763 of the Civil Code provides that “a husband and wife may divorce by agreement.” Accordingly, a divorce by agreement is a divorce that is agreed to by the husband and wife through their discussions, and one spouse cannot unilaterally get divorced.
If you cannot agree to get divorced with your spouse, then you must next attempt to get divorced through conciliation administered by the family court (調停離婚 or "chotei rikon"). During conciliation, the conciliation committee hears the arguments and allegations of the parties, and the conciliation committee proposes alternatives to resolve the disagreement. Conciliation also involves discussions and requires the parties to agree to get divorced.
If the parties cannot agree to get divorced through conciliation, then the next option is to get divorced through a court determination (審判離婚 or "shinpan rikon") or a trial (裁判離婚 or "saiban rikon"). If the court issues a judgment at the conclusion of the trial whereby it “accepts a party’s application for a divorce,” then even if the other spouse is not agreeing to the divorce, you will be able to get divorced.
Therefore, the law requires the parties to attempt to agree to get divorced, and only if they fail to agree, will the court get involved and issue a decision or judgment. And as explained in more detail below, even where the court gets involved, the parties must meet statutory grounds to get divorced.
The statutory Grounds to get a divorce if your spouse is not agreeing
The Civil Code provides the following statutory grounds for a divorce upon which a court will allow a divorce through a court determination or a trial.
- Only in the cases stated in the following items may either husband or wife file a suit for divorce:
- (i) if a spouse has committed an act of unchastity;
- (ii) if abandoned by a spouse in bad faith;
- (iii) if it is not clear whether a spouse is dead or alive for not less than three years;
- (iv) if a spouse is suffering from severe mental illness and there is no prospect of recovery; or
- (v) if there is any other grave cause making it difficult to continue the marriage.
- A court may dismiss a suit for divorce if it finds that continuing the marriage is reasonable taking into account all circumstances, even in the case where there is a cause listed in items (i) to (iv) inclusive of the preceding paragraph.
This article of the civil code provides that a court may allow a divorce even where a spouse is not agreeing to the divorce if any of the foregoing grounds apply to that spouse.
Because the court will make its final decision on the divorce using these grounds, any negotiations will be based upon these grounds if a lawyer is involved, and also during conciliation.
On the other hand, if any of the foregoing grounds apply to you and you are treated as an “offending spouse,” then any application for a divorce made by you will generally not be granted.
If your spouse has committed an act of unchastity
Act of Unchastity - Civil Code Article 770(1)(i)
An act of unchastity (不貞行為 or "futei koui") means to have a sexual relationship with a person of the opposite sex other than your spouse, and usually refers to adultery or cheating, but does not include cases such as rape that do not involve the free will of the person. Furthermore, because the act must be with a person of the opposite sex, it will not be an act of unchastity if you have a sexual relationship with a person of the same sex. However, such an act may be considered to be a “grave cause making it difficult to continue the marriage” under Article 770(1)(v).
However, if your evidence can not show that a sexual relationship existed, you may not be able to prove that there was an act of unchastity. For example, if you only have the following evidence, it will be insufficient.
- Friendly communications by email or on a social networking site.
- Your spouse and someone of the opposite sex was holding hands while walking.
- However, if there is evidence that would lead anyone to assume that there is a sexual relationship, it is more likely that the evidence is sufficient to find that an act of unchastity was committed. For example:
- Emails specifically discussing the sexual relationship
- Photographs entering a hotel together.
If you have a suspicion that an act of unchastity was committed, we recommend that you gather any evidence before it is destroyed.
If your spouse has abandoned you in bad faith
Bad Faith Abandonment - Civil Code Article 770(1)(ii)
Article 752 of the Civil Code provides that “a husband and wife shall live together and provide mutual cooperation and assistance,” and therefore, both the husband and wife have the duty to assist each other.
Bad faith abandonment (悪意の遺棄 or “akui no iki”) occurs when a spouse fails to perform his or her duty to assist without a legitimate reason.
Examples of when a divorce is allowed for bad faith abandonment
As an example, if the following facts are present, the court may decide that there was bad faith abandonment and therefore the divorce should be allowed
- The spouse fails to pay for living expenses even though the spouse has income
- Where one of the spouses is a housewife or househusband, the other spouse fails to give him or her necessary living expenses
- Where one spouse is sick and cannot work, the other spouse fails to pay for the medical expenses
- One spouse begins to live separately without the consent of the other spouse
- Repeatedly disappears from the house for extended periods of time without a reason
- One spouse locking out the other spouse from the house
On the other hand, the following facts do not show bad faith abandonment
- Living separately for work related reasons
- Failure to pay medical expenses because of limited income
- Failure to pay living expenses because of an illness
If it is not clear whether your spouse is dead or alive for 3 or more years
Life or death unclear – Civil Code Article 770(1)(iii)
Life or death unclear (生死不明 or "seishi fumei") means that the whereabouts of the spouse, including whether the spouse is alive or dead, are completely unknown.
Even if you cannot contact your spouse, but if you can find out where your spouse lives by tracing records such as resident register records, or even if you do not know where they live but if you definitely know that your spouse is alive, that is not "life or death unclear."
Before deciding to get divorced for the reason of life or death unclear for 3 or more years
If you can prove that you have not known the whereabouts of your spouse, as well as whether your spouse is alive or not, for three or more years, then the court will allow your divorce.
However, if your spouse has assets and if you have children, it is recommended that you instead consider having the court make an adjudication of disappearance (失踪宣告 or “shisso senkoku”).
An adjudication of disappearance is provided for in Civil Code Article 30 et seq. If the court adjudicates a person as disappeared, then they will be legally considered dead. There are two forms of adjudications of disappearance. The first form is called a “normal disappearance” and requires that a person’s life or death be unclear for 7 years. The second form is called a “special disappearance” and requires that a person be involved in a dangerous event such as war, earth quakes, or the sinking of a ship and that the person’s life or death be unclear for 1 year thereafter.
If you use the adjudication of disappearance procedure, then the heirs will be able to inherit the assets that the spouse left behind.
On the other hand, if you get divorced pursuant to Article 770(1)(iii) of the Civil Code, it will be treated as an ordinary divorce.
If your spouse is suffering from severe mental illness and there is no prospect of recovery
Severe mental illness with no prospect of recovery - Civil Code Article 770(1)(iv)
As can be seen from the language “with no prospect of recovery,” it is insufficient for your spouse to be diagnosed with a mental illness to get divorced.
As explained in “bad faith abandonment,” during the marriage, the spouses have a duty to assist each other, and as a general rule, while one spouse is suffering from a mental illness, the other spouse has the duty to assist the spouse with the mental illness.
However, there are exceptions such as when a spouse has a severe mental illness causing that spouse to be unable to communicate effectively, and if there is no prospect of recover, a court may determine that it cannot force the husband and wife to continue the marital relationship.
Examples of when there is a “severe mental illness with no prospect of recovery”
As explained above, when attempting to get divorced pursuant to Article 770(1)(iv) of the Civil Code, what is most important is the existence of “prospects of recovery.” It may be difficult to get divorced pursuant to Article 770(1)(iv) for illnesses such as depression or panic disorders that can be cured through appropriate treatment, as it may not be possible to show that there are “no prospects of recovery.”
Additionally, if you will be seeking a divorce pursuant to Article 770(1)(iv), you will need to consider the living conditions of your spouse after the divorce.
There is Supreme Court precedent that a divorce should not be allowed unless appropriate arrangements have been made for the spouse with the illness to maintain a similar life and treatment even after the divorce.
Put another way, if you can make appropriate arrangements for the ill spouse to maintain his or her life and to focus on treatment in a similar environment, the court will allow your divorce.
If there is any serious reason that makes it difficult to continue the marriage
Serious reason that makes it difficult to continue the marriage - Civil Code Article 770(1)(v)
Items (i) to (iv) of paragraph 1 of Article 770 of the Civil Code provided specific instances in which a divorce should be allowed. However, there are other situations in which a spouse was acting in a manner that would make it difficult to continue the marital relationship. In such situations, the court may allow the divorce for the reason that there is a “serious reason that makes it difficult to continue the marriage” pursuant to Civil Code Article 770(1)(v).
What is required is not what a party feels is a sufficient reason to not continue the marital relationship, but instead, the court will need to find that there are sufficient facts to find that there is a “serious reason that makes it difficult to continue the marriage.” Differences in personalities may be one factor, but in most cases cannot be the sole reason to find that there is a “serious reason.”
Examples of when there is a “serious reason that makes it difficult to continue the marriage”
In the following situations, a court may find that there is a “serious reason that makes it difficult to continue the marriage.”
However, the existence of the following facts in of themselves is usually insufficient, and the court will consider other factors (such as abusive language, wasteful habits) in deciding whether to allow the divorce.
Physical violence, psychological abuse
This is a situations where a spouse is found to have been abused by the other spouse.
Examples are physical violence or psychological abuse (which entails abusive words or abusive attitudes). If a spouse fears physical danger and seeks refuge, normally the court will not consider that as bad faith abandonment under Article 770(1)(ii) of the Civil Code, but instead will likely find that the physical or psychological abuse was a “serious reason that makes it difficult to continue the marriage.”
Spouse knew of the abuse caused by the parents of that spouse but failed to intervene or aided or abetted such conduct
This situation is similar to the foregoing physical or psychological abuse. If a spouse is found to have even indirectly participated in the abuse, a court may find that there is a “serious reason that makes it difficult to continue the marriage.”
Differences in sexual desire, lack of sexual intercourse, forcible sexual intercourse
Differences in sexual desire or preferences, forcibly having sexual intercourse, or consistently refusing to have sexual intercourse are reasons that may be considered to be a “serious reason that makes it difficult to continue the marriage.”
Additionally, the following are also reasons that have been found to be “serious reasons that make it difficult to continue the marriage.”
- Alcoholism, drug addictions
- Criminal incarceration (especially for extended periods of time)
- Excessive religious activities
- Gambling, wasteful spending
If your spouse is not agreeing to the divorce, you will use the foregoing legal grounds for a divorce as your basis in seeking the divorce. If your spouse decides to fight the divorce, evidence may be crucial.
If you feel that it may be difficult for you to gather the necessary evidence for the divorce, please feel free to contact us to speak to one of our experienced lawyers for assistance.