The subject of this article is legal issues that foreign residents in Japan may face.
Unlike previous posts, this one is not directly related to the status of residence which every foreign resident is concerned with. However, it must be useful for foreign residents, and also for Japanese who are closely related to them to have basic knowledge on the legal issues which may occur during their stay in Japan. The longer their stay continues, the higher the chances to encounter various legal issues naturally increase.
The term ‘legal issue’ used here widely includes various conducts or events subject to legal application, legal changes in status or position, and gain or loss of rights and duties.
Hereinunder, I firstly explain the basic knowledge of the laws concerned, and then set up some example questions. Each question will illustrate what kinds of legal issues foreign residents may possibly encounter. Answers and explanations to those questions will be provided in the next post.
As this theme is not an easy one, if you have any questions in course of reading this article, feel free to send us your question at any time.
- Classification of Laws
Firstly, let me explain about ‘International Family Law’ which is the name of law used as the title of this article.
Laws can be generally classified into public law which involves a state (such as criminal law and tax law), and private law which regulates issues between individuals (such as civil law and commercial law).
Also, laws that regulate purely domestic issues in a state are referred to as domestic law, and laws that regulate issues in which multiple countries are involved are referred to as international law.
Thus, the law that regulates private issues involving parties of different nationalities or property located in different countries can be named as ‘international private law’ (or ‘private international law’).
In the international private law, its parts that concern family related issues are referred to as ‘international family law.’
As you can see now, ‘international family law’ is a categorical name of law, and no specific laws with such names exist.
In this article, we focus on ‘international family law.’
- Scope of International Family Law
International family law targets legal issues that in Japan are regulated by the Civil Code, Part 4 Relatives and Part 5 Succession. Namely, they are the issues such as marriage, divorce, marital property systems, acknowledgement of parentage, adoption, parental authority, succession (or inheritance), will and etc.
In addition, there may be cases involving special laws concerning specific individuals or situations, such as the ‘Child Welfare Act’ and the ‘Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder.’
- Act on General Rules for Application of Laws
Laws similar to the Japanese laws mentioned above, such as the Civil Code, exist in most countries. However, it happens that a conclusion will be different when a same legal case is decided by applying the law of Japan, or of Country A, or of Country B….
When resolving a private law issue concerning a national of Country A residing in Japan, the conclusion by court may therefore differ depending on whether Japanese law or Country A’s law is applied. In this scenario, it is crucial for the person from Country A which country’s law will be applied.
If the person from Country A can choose the law that is more favorable to him/her, the person will be happy. But the counterpart involved may not like it. To ensure fairness and justice, most of countries have rules governing which country’s law should be chosen and applied in what case.
In Japan, there is a law called as the ‘Act on General Rules for Application of Laws’ (hereinafter referred to simply as ‘Act on General Rules’) that stipulates the choice of law to be applied to cases of international private legal issues.
- Governing Law
For a legal issue concerning a national of Country A residing in Japan, whether to apply the law of Japan, the law of Country A, or potentially the law of Country B, is determined by the aforementioned Act on General Rules.
The law chosen by the Act on General Rules to apply to a specific issue is referred to as the “governing law.”
By the way, most people reading this article might assume that only the law of Country A is applied in the courts in Country A as well as only the Japanese law is applied in the courts in Japan.
(1) However, when a case concerning a national of Country A residing in Japan is brought before a Japanese court, that court may apply the law of Country A to decide the case. In this case, the Japanese court has determined the governing law to be the law of Country A based on the Act on General Rules.
(2) Similarly, when a case concerning a Japanese national residing in Country B is brought before a court in Country B, that court may also apply Japanese law. In this case, the court in Country B has decided that Japanese law is the governing law based on Country B’s rules equivalent to Japan’s Act on General Rules.
It may seem strange for courts in a country to apply laws of another country, but the reasons for this will become clearer when we consider the example questions a little later.
In any case, “governing law” is an important term that will appear afterwards, so please keep it in mind.
- Functions that Court of Justice Conducts Outside the Courtroom
When you think of a court, you might imagine a plaintiff (the person who files a lawsuit) and a defendant (the person being sued) hiring lawyers to argue their cases in front of a judge, who decides which party is right. This setting (or place) is referred to as a “courtroom.”
Of course, this image is correct, but courts also resolve and decide cases in other ways.
For example, courts conduct mediation to guide both parties to reach an agreement through discussion (such as divorce mediation). Also, courts decide matters that are not disputes but need to be publicly decided by law (such as the appointment of a guardian, approval of adoption, confirmation of renunciation of succession, etc.), courts handle these cases without opening a courtroom (i.e., without a trial).
Even in these practices of resolving legal issues outside the courtroom, if the matter involves international private law, the governing law mentioned above will be chosen by the Act on General Rules and be applied.
- International Jurisdiction
When the relationship of a couple of a Japanese and a foreign national living in Japan becomes impossible to be remediable, and they file a lawsuit regarding their divorce, it seems natural that a Japanese court examine and decide this case.
Then, what about the following cases?
(1) For a divorce lawsuit between a couple of foreign nationals living in Japan, which country’s court can examine and decide?
(2) For a divorce lawsuit between a couple of Japanese nationals living in a foreign country, which country’s court can examine and decide?
‘International jurisdiction’ means which country’s court has the authority to resolve international legal issues.
The answer for (1) is that the Japanese court has jurisdiction. Depending on the laws of the foreign nationals’ home country, that country’s court may also have jurisdiction.
The answer for (2) is again that the Japanese court has jurisdiction. However, depending on the laws of the foreign country where they reside, that country’s court may also have jurisdiction.
The rules to decide whether Japan has the international jurisdiction over certain cases are found in the Code of Civil Procedure, the Personal Status Litigation Act, and also in the Domestic Relations Case Procedure Act. You can find a section named ‘Jurisdiction of the Japanese Courts’ at and after the same article 3 -2 in all these 3 laws. Please have a look into them if you are interested.
For practices of resolving issues outside the courtroom, explained in the chapter 5 above, as long as a court is involved, international jurisdiction must be also taken into account.
Generally speaking, you can assume that court of a country where an issue arouse, where parties reside, where parties hold nationality, or where property concerned locates have international jurisdiction. But what happens when Party X and Party Y live in different countries?!
In any case, to avoid further complication, the following questions will proceed on the premise that Japan has jurisdiction.
- Questions
The explanation of the basic knowledge has become much longer than expected. Especially my writings about ‘governing law’ and ‘international jurisdiction’ might be far from easy understanding… Anyway, please take a break with a cup of coffee and then read and think about the following questions. Hope they interest you.
(1) Marriage 1
In Country A, the law allows marriage from the age of 16, but in Japan, under Article 731 of the Civil Code, one must be 18 years old to marry. Can X, a 20-year-old Japanese, and Y, a 16-year-old from Country A, get married in Japan?
(2) Marriage 2
In Country B, where Islam is the state religion, men can have up to four wives. X, a man from Country B, is already married to one woman. Can X and Y, a Japanese woman, get married in Japan?
(3) Divorce 1
The law of Country C prohibits divorce. X, a national of Country C, and Y, a Japanese, got married in Country C but have since moved to Japan and lived here for five years. Recently, their relationship has deteriorated, and they want to divorce. Can X and Y get divorced in Japan? Of course, divorce is legal in Japan.
(4) Divorce 2
X and Y are both nationals of Country C, where divorce is prohibited. They have lived in Japan for the past 10 years since their marriage, but their relationship has deteriorated, and they want to divorce. Can X and Y get divorced in Japan?
(5) Adoption
A couple of X, a Japanese national, and Y, a national of Country D, live in Japan. Y has two children from a previous marriage with Z in Country D. These children are W1, a 16-year-old, and W2, a 10-year-old. Since X and Y do not have children together, they want to adopt W2 and bring the child to Japan to live with them.
To adopt W2, the Civil Code of Japan requires the consent of W2’s legal guardians (father Z and mother Y). On the other hand, Country D’s law requires the consent of certain close relatives, in this case, Y, Z, and W1. Although Y and Z have consented, W1 refused to consent the adoption.
As mentioned above, Japanese law does not require W1’s consent for the adoption of W2 to be valid. Can X and Y successfully adopt W2?
(6) Child Custody (Parental Authority)
A couple from Country E, X and Y, have lived in Japan for many years and have a 5-year-old child Z, who was born in Japan (and holds nationality of Country E). One day, X and Y had a big fight, and Y took Z back to Country E without X’s consent. Will X be lawfully able to bring Z back to Japan?
By the way, under both Japanese law and Country E’s law, both husband and wife of a married couple have joint parental authority to their child (the right to care for and the duty to educate their child in the child’s interests).
Also, both Japan and Country E are signatories to the ‘Convention of 25 October 1980 on the Civil Aspects of International Child Abduction’ (Hague Convention).
(7) Marital Property System
A couple, X from Country F and Y from Country G, have lived in Japan for many years and own a house in Tokyo under X’s name. According to the law of Country F, any property acquired during the marriage is considered joint property, regardless of whose name it is registered under. On the other hand, the law of Country G stipulates that property acquired during the marriage belongs to the person whose name it is under. Japanese law is the same as that of Country G.
If X and Y divorce in Japan and divide their property, what will happen to the house under X’s name?
(8) Succession (Inheritance) 1
A couple, X from Country H and Y from Japan, have lived in Japan for a long time. Due to old age, X passed away at 80 years old, leaving Y behind. X has no relatives left in Country H, only the spouse Y and their child Z (who holds nationality of Japan).
Which law governs the inheritance of X’s estate (assets and property), the law of Country H or Japanese law?
(9) Succession (Inheritance) 2
It turns out that X from Country H who died recently holds dual nationality with Country K. X was actually born in Country K and acquired the nationality of Country K. At the same time, he acquired the nationality of Country H, the homeland of X’s parents. X returned to Country H with their parents at the age of 8 and lived there until marrying Y at the age of 28, and moved to Japan.
In this case, which country’s law, Country H, Country K or Japan, will govern the inheritance in the above question (8)?
(10) Will
A will can cause significant problems if it is forged, so each country’s laws strictly define the formalities for making a will. For example, Article 969 of the Civil Code of Japan stipulates that ‘…. be made in the form of a notarial instrument…. the presence of at least two witnesses…’
Recently, it was discovered that X from Country H, who passed away in Japan, owned land in Country L. His video-recorded will concerning this land was kept at a notary office in Country L.
Although video-recorded will is not recognized formal either under the laws of Country H, Country K, or Japan, it is recognized legally formal under the law of Country L.
Even though the law of Country L is not among the candidates of the governing law in this case, can Y and Z successfully inherit this land?
◎ This concludes the ‘Questions’ section of “Basic Knowledge of International Family Law” for now. Please wait for the answers and explanations in the next post. If you cannot wait for the next post or have questions in course of reading this article, feel free to ask us any time. You are always welcome!