In the previous post, we explained what international family law is and set 10 questions at the end. This post provides answers and explanations to those questions.
Before going into the answers and explanations, let’s quickly review what we studied last time. For more details, please re-read Basic Knowledge of “International Family Law” (Questions Section).
- What is International Family Law? (Review of the previous post)
(1) Position of International Family Law in the Legal System
Laws are classified into public law (such as criminal law and tax law) and private law. Private law governs legal relationships between private individuals (such as civil law and commercial law). Within civil law, there is a group of laws that regulate family matters, which we conventionally refer to as family law.
Family law covers domestic legal issues such as marriage, divorce, marital property system, child recognition (acknowledgement of parentage), adoption, parental authority (child custody), succession (inheritance), and will. International family law applies when multiple countries or foreign nationals are involved in these family issues.
(2) Act on General Rules for Application of Laws, Governing Law
Many people may think that only Japanese law applies in Japan and only the law of Country A applies in Country A. However, there are cases where Country A’s law applies in Japan, or Japanese law applies in Country A. The law that stipulates under what circumstances foreign law applies in Japan is called the “Act on General Rules for Application of Laws” (hereafter referred to as ‘Act on General Rules’).
The law chosen by the Act on General Rules to apply to a specific international legal issue is referred to as the “Governing Law.”
(3) International Jurisdiction
To solve a legal issue related to international family matter, whether Japanese courts have jurisdiction or not is decided by the “Personal Status Litigation Act” and the “Domestic Relations Case Procedure Act.” Generally, if the issue arose in Japan, the defendant resides in Japan, or the parties are Japanese nationals, the property is located in Japan, it is likely that Japanese courts have international jurisdiction.
(4) Mediation and Adjudication
The methods employed by Japanese courts to solve legal issues related to family matters include not only trials (battle in a courtroom) but also mediations and adjudications. Mediation (conciliation of domestic relations) refers to the court facilitating discussions between parties. Adjudication is not to solve disputes but to finalize legal status that need to be publicly settled by law (such as the appointment of a guardian, approval of adoption, confirmation of renunciation of succession, etc.).
For mediations and adjudications, if the legal issue is international, the governing law is chosen by the Act on General Rules as well as for trials.
- Answers and Explanations
Now, Questions (Q) copied from the previous post come first, then their answers (A) and explanations follow:
(1) Marriage 1
Q: 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?
A: Yes, they can get married.
Explanation: Article 24 of the Act on General Rules stipulates that “the formation of a marriage shall be governed by the national law of each party.”
This means that as long as Japanese person X meets the requirements of the Civil Code of Japan, and Y, a national of Country A, meets the requirements of Country A’s law, they can marry each other. After all, as an international marriage can be formed as long as each party individually and separately satisfies the law of their respective countries.
(2) Marriage 2
Q: 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?
A: No, they cannot get married.
Explanation: From the answer and explanation above (1), it might seem that X from Country B and a Japanese Y can get married in Japan as long as they separately satisfy the law of their respective countries.
However, Japan does not recognize polygamy. Article 42 of the Act on General Rules stipulates that “… if the application of the foreign law is against public order (or good morals) of Japan, it does not apply.” Even if polygamy is legal under Country B’s law, it will not be recognized in Japan as it is against the public order.
Similarly, in the above (1), if Country A’s law permits marriage at age 10 and Y is 10 years old, that marriage would also not be recognized in Japan for the same reason.
Both Country A and Country B are sovereign states equal to Japan, so Japan must respect the laws of those countries. Nonetheless, Article 42 functions as an escape route to avoid application of the foreign law when it leads to a conclusion too far removed from Japanese public order.
(3) Divorce 1
Q: 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.
A: Yes, they can get divorced.
Explanation: Article 27 of the Act on General Rules stipulates that the provisions of Article 25 (Effect of Marriage) apply to divorce. Article 25 stipulates that “the effect of a marriage is governed by the national law of the husband and wife if their national law is the same, or where that is not the case, by the law of the habitual residence of the husband and wife if their law of the habitual residence is the same, or where neither of these is the case, by the law of the place most closely connected with the husband and wife.”
There contain 3 criteria in Article 25 that can be broken down in a simplified manner as follows:
(a) If the couple has the same nationality, the law of that nationality applies.
(b) If the couple has different nationalities, but they reside in the same country as their main place of residence which is not temporary or short-term (such place is referred to as ‘habitual residence’), the law of that country applies.
(c) If neither the nationality nor habitual residence is the same, the law of the country with which the couple has the closest connection (such as where they lived together before separation) applies.
To determine the governing law, the step-by-step application is taken from (a) to (C) in order. As a result, while it doesn’t fall under (a), it falls under (b). Therefore, in this case, the law of Japan, where X and Y, this couple, reside habitually, becomes the governing law, resulting in that they can divorce.
(4) Divorce 2
Q: 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?
A: No, they cannot get divorced.
Explanation: Referring to the explanation in above (3), applying the criteria from (a) to (c) step-by-step to determine the governing law, this case falls under (a), meaning the law of Country C, where both X and Y hold nationality, will apply.
Since Country C’s law prohibits divorce, X and Y cannot get divorced even if they have lived in Japan for 10, 20, or 30 years.
However, if the reason for seeking a divorce is not ordinary, such as domestic violence (DV), then refusing to grant a divorce for this couple might actually result in a violation of the public order of Japan, as explained in above (2). In such cases, Japanese courts may admit the divorce.
(5) Adoption
Q: 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 family members, 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?
A: No, they cannot adopt W2.
Explanation: Article 31, Paragraph 1 of the Act on General Rules stipulates in its first part that “adoption is governed by the national law of an adoptive parent…” It further stipulates in its latter part “if obtaining the acceptance … from the person to be adopted or a third party, or obtaining permission … from a public authority is required for adoption under the national law of the person to be adopted, that requirement is also satisfied.”
Applying the first part of this article to this case, since the adoptive parent X is a Japanese, this adoption will be determined by Japanese law. According to Japanese law (Articles 795 and 797, etc. of the Civil Code), this adoption seems to be valid.
However, the problem is the latter part of this article. This part is known as the “safeguard clause” which aims to respect the will of the adoptee and prevent illegal child trafficking disguised as adoption. If the national law of the child includes provisions requiring consent from relatives or public authorities for the adoption to be valid, Japanese courts must consider those provisions.
In this case, the national law of W2, the person who is to become the adoptee, requires the consent of W2’s 16-year-old brother, W1. However, W1 is opposed to this adoption, and since it doesn’t meet the requirements of the safeguard clause, the adoption cannot be effective.
Nevertheless, if it is objectively evident that being adopted by X and living in Japan with Y who is the biological mother of the child is clearly the best option for W2, applying the safeguard clause could, in fact, harm the very interests of the child that this clause is originally intended to protect. In such cases, it is possible that the court might reject the application of the safeguard clause of Country D on the grounds of the public order (refer to the explanation in above (2) case).
(6) Child Custody (Parental Authority)
Q: 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 quarrel, 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 international treaty named “Convention on the Civil Aspects of International Child Abduction” (Hague Convention).
A: It may be difficult.
Explanation: (1) Regarding Parental Authority or Child Custody, Article 32 of the Act on General Rules stipulates that “the legal relationship between parents and their child is governed by the child’s national law if it is the same as the national law of either the father or mother… or in other cases by the law of the child’s habitual residence.”
In this case, as they are all nationals of Country E, the governing law for the parental authority is Country E’s law, and since X and Y have not yet divorced, both retain parental authority. Additionally, even if Country E’s private international law stipulates that parental authority is determined by the law of the child’s habitual residence which is Japan, under Japanese law as well, both parents retain parental authority as long as their marriage continues.
Thus, it would be difficult for X to request the return of Z solely based on parental authority.
(2) By the way, Country E is also a signatory to the “Convention on the Civil Aspects of International Child Abduction” like Japan. This international treaty provides procedures to protect children from the harmful effects of abduction and retention across international borders and to ensure their prompt return to their habitual residence.
X may consider requesting Z’s return based on this treaty. This is because the treaty is founded on the belief that it is in the best interest of the child to continue living in the place where they are the most familiar with.
However, since Z is only 5 years old, and likely speaks the language of Country E at home, it may be necessary to assess whether Japan is indeed the best place for Z’s living and growing.
(7) Marital Property System
Q: 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 regulates 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?
A: The house will solely belong to X.
Explanation: Article 26, Paragraph 1 of the Act on General Rules stipulates that the provisions of Article 25 (Effect of Marriage) also apply to Marital Property System. The content of Article 25 was explained in above (3) regarding divorce. Once again, its summary is as follows:
(a) If the couple has the same nationality, the law of that nationality applies.
(b) If the couple has different nationalities, but they have the same habitual residence, the law of that country applies.
(c) If neither the nationality nor habitual residence is the same, the law of the country with which the couple has the closest connection applies.
Applying these criteria step-by-step to this case, it does not fall under (a) but falls under (b). Since they have lived together in Japan for many years, their habitual residence can be considered to be Japan. Therefore, the governing law for this case is Japanese law.
Article 762, Paragraph 1 of the Civil Code of Japan stipulates that “property owned by one party before marriage and property obtained in the name of that party during the marriage is separate property (meaning property that one party to a marriage owns independently of the other party).”
Thus, the house in X’s name will remain X’s sole property even after the divorce.
However, when this couple has no other significant assets than this house, Y might find it unfair that X exclusively retains the house after the divorce, and leaving Y with nothing. In such a case, it is possible for Y to seek an adjustment through consultations, mediation, or adjudication based on Article 768 (Division of Property) of the Civil Code to cure the unfairness.
(8) Succession (Inheritance) 1
Q: 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?
A: The law of Country H
Explanation: Article 36 of the Act on General Rules stipulates that “inheritance is governed by the national law of the decedent.” Regardless of how long X has lived in Japan or the fact that the heirs Y and Z hold Japanese nationality, the governing law for inheritance is the national law of the decedent, in this case, that is the law of Country H.
(9) Succession (Inheritance) 2
Q: 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)?
A: Again, it is the law of Country H.
Explanation: In previous explanations, I have referred to the law of the country of nationality as the national law. While this is often true, in cases like this where a party has multiple nationalities, we must determine which law of the country of nationality applies as the national law.
Regarding the national law, Article 38, Paragraph 1 of the Act on General Rules stipulates “where a party concerned has two or more nationalities, the party’s national law is the law of the country of their nationality where they have habitual residence, or, the law of the country with which the party is most closely connected if there is no such country of their nationality where the party has habitual residence….”
In this case, X lived in Country K until the age of 8, in Country H from ages 8 to 28, and in Japan from ages 28 to 80. This seems to suggest that Japan, where X has lived the longest and has family, would be the habitual residence.
However, wait a moment. If we conclude this way, we arrive at the strange conclusion that Japanese law, which was previously excluded in above (8), comes back? Reading this provision carefully again, we notice that the national law must be chosen only among the laws of the countries of nationality.
In other words, we need to find the country of habitual residence among the countries of multiple nationality, and if there is no such country among the countries of nationality, we must choose the country with the closest connection from among those countries of nationality. Since Japan is not one of X’s countries of nationality, it must be excluded.
In this case, neither Country K nor Country H can be considered the country of habitual residence for X. However, it seems that Country H has a closer connection than Country K, so the law of Country H would likely be determined as the governing law for this inheritance.
(10) Will
Q: 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?
A: It seems they can inherit the land.
Explanation: (1) Regarding will, Article 37, Paragraph 1 of the Act on General Rules stipulates “the formation and effect of a will are governed by the national law of a testator (a person who made the will)…” On the other hand, Article 43, Paragraph 2 stipulates “the provisions of this Chapter do not apply to the formalities for a will…”
The ‘formation’ of a will mentioned in Article 37 refers to whether substantive requirements for validity of the will are satisfied, such as whether the will was made without fraud. ‘Effect’ refers to the binding nature of the will in inheritance (for example, whether heirs can divide the estate differently than stated in the will). Article 37 stipulates that both ‘formation’ and ‘effect’ of a will are determined by the national law of the testator.
On the other hand, the ‘formalities’ in Article 43 refers to the requirements for format of the will (such as the style of document, the need for witnesses, etc.). But the Act on General Rules refuses to stipulate about the formalities.
(2) The law that determines the governing law for the formalities of an international will is called the “Act on the Law Governing Formalities of a Will.” The validity of a video-recorded will is not a matter of “formation” or “effect” (these concern the contents of the video recording), but is a matter of “formalities.” Therefore, we must apply the “Act on the Law Governing Formalities of a Will” to choose the governing law and then to decide the validity of the video-recorded will.
Article 2 of that law stipulates “a will is valid in terms of its formalities if its formalities comply with any of the following laws…” Then Item 5 of the article stipulates “in the case of a will concerning real property, the law of the place where the real property is located.” Since a video-recorded will is valid under the law of Country L where X’s real estate is located, X’s video-recorded will is recognized valid as for its formalities are concerned. Thus, Y and Z would inherit the land in Country L.
(3) But… wait a moment. The “Act on the Law Governing Formalities of a Will” is Japanese law! The validity of the ‘formalities’ of a will should be pre-requisite for the will’s ‘formation’ and ‘effect.’ So, unless Country H has a law similar to the “Act on the Law Governing Formalities of a Will,” X’s will may not be recognized as valid under the law of Country H.
In fact, the “Act on the Law Governing Formalities of a Will” was enacted to implement the provisions of the international treaty known as the “Convention on the conflicts of laws relating to the form of testamentary dispositions” (done at the Hague, on 5th October, 1961) within Japan.
Since this treaty has been ratified by over 40 countries by now, Country H may be one of those countries who ratified it. If so, Country H must have a law that corresponds to the “Act on the Law Governing Formalities of a Will,” and Y and Z would be most likely able to inherit the land in Country L.
◎ This concludes the second part of “Basic Knowledge of International Family Law (Answers Section).” As coming closer to the end, the explanations became increasingly lengthy. I tried to make them as short and simple as possible, but I am afraid that I was not very successful. As a result, there may be many parts that were hard to understand. If yes, please feel free to send us your questions at any time.