JAPAN Law and Practice Contributed by: Kenji Yano, Tokyo Kokusai Partners Law Office
Rescission of marriage (Civil Code, Article 743 et seq) A marriage may be rescinded where statutory grounds exist, including bigamy, prohibited degrees of kinship, violation of the minimum marriage age, or marriage procured by fraud or duress. Rescission is pursued through Family Court proceed ‑ ings. Judicial separation Japanese law does not provide for a system of judi ‑ cial separation. However, spouses may agree to live separately, and such agreement may be recorded in mediation proceedings. 1.2 Choice of Jurisdiction in Divorce Proceedings Jurisdiction in Divorce Proceedings In Japan, the rules on international jurisdiction differ between mediation proceedings and divorce litigation. Mediation (domestic relations case procedure) Under Article 3-13 of the Domestic Relations Case Procedure Act, Japanese courts have international jurisdiction where: • the Japanese courts have jurisdiction over the divorce litigation; • the respondent has a residence in Japan; or • the parties agree to conduct mediation in Japan. A distinctive feature of mediation is that jurisdiction may be established by agreement of the parties. Divorce litigation (personal status litigation) Under Article 3-2 of the Personal Status Litigation Act, Japanese courts have international jurisdiction where: • the defendant has a residence in Japan; • the plaintiff resides in Japan and the parties’ last common residence was in Japan; • both parties are Japanese nationals; or • special circumstances justify jurisdiction in light of fairness and the proper administration of justice. The final ground is exceptional and narrowly applied.
Unlike mediation, jurisdiction cannot be established by agreement in divorce litigation. Domestic venue Once international jurisdiction is established, the question of which Family Court within Japan has ter ‑ ritorial competence is determined separately under domestic venue rules. Same-sex partners As Japanese law does not recognise same-sex mar ‑ riage or civil partnerships, issues of divorce jurisdic ‑ tion do not arise in that context. Domicile, Residence and Nationality Japanese law does not adopt the common law con ‑ cept of “domicile”. Residence (Civil Code, Article 22) The central concept for determining international juris ‑ diction in divorce proceedings is residence. Residence is defined as the “centre of one’s life”, meaning the place where a person’s social life is primarily based. Place of stay (Civil Code, Article 23 (1)) Where a person has no residence, the supplemen ‑ tary concept of place of stay applies. This refers to a place where a person resides continuously for a cer ‑ tain period, although it does not constitute the centre of that person’s life. Nationality Nationality is not, in principle, a primary connecting factor for jurisdiction. However, where both parties are Japanese nationals, nationality may constitute a jurisdictional ground under the relevant statutory pro ‑ visions. Objection to Jurisdiction A party may raise an objection on the ground that the Japanese courts lack international jurisdiction. The court examines international jurisdiction ex officio. If it finds that international jurisdiction is lacking, the petition for mediation or the action will be dismissed. Where international jurisdiction exists but a domestic venue is improper, the case may be transferred to the
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