JAPAN Law and Practice Contributed by: Kenji Yano, Tokyo Kokusai Partners Law Office
ceedings. Where trust assets are substantively attrib ‑ utable to the marital partnership, they may be treated as part of the divisible marital estate. 2.4 Spousal Maintenance General Approach to Spousal Maintenance During marriage While the marital relationship continues, spouses owe each other duties of cohabitation, co-operation and mutual assistance (Civil Code, Article 752). Corre ‑ spondingly, expenses arising from the marital com ‑ munity are to be shared by the spouses in light of their respective assets, income and all other relevant circumstances (Civil Code, Article 760). This obligation to share marital expenses is under ‑ stood as a duty to maintain the other spouse at a standard of living comparable to one’s own. It extends beyond basic living costs such as food, clothing and housing, and includes education, recreation and the child’s living and educational expenses, as well as all other costs ordinarily necessary to maintain marital life. After divorce As a general rule, Japanese law does not provide for ongoing spousal maintenance following divorce. Post-divorce financial adjustment is addressed pri ‑ marily within the framework of property division, and any maintenance-oriented considerations arise only exceptionally as part of that mechanism (see Court Powers Regarding Post-Divorce Spousal Mainte ‑ nance, below). Marital Expenses After Breakdown of the Relationship Under Japanese law, as long as the marital relation ‑ ship formally continues, a spouse may apply for an order allocating marital expenses pending the final determination of divorce. In practice, the amount of marital expenses is com ‑ monly calculated by reference to “Child Support and Spousal Maintenance Calculation Tables” published by the courts. These tables serve as guidelines only; adjustments may be made in light of case-specific cir ‑
cumstances, such as private school tuition or extraor ‑ dinary medical expenses. The Family Court may also reduce the amount where strict application of the standard would be inequitable. In extreme cases, a claim may be restricted on the basis of abuse of rights or the principle of good faith. Court Powers Regarding Post-Divorce Spousal Maintenance Post-divorce economic adjustment is, in principle, addressed through property division. However, where one spouse faces difficulty achieving economic self-sufficiency after divorce, the court may, exceptionally, take into account a maintenance ele ‑ ment within the framework of property division. This may include, for example, periodic payments for a lim ‑ ited period or temporary rent-free use of the former matrimonial home. Whether such maintenance-oriented property division is granted, and its scope, are determined through a comprehensive assessment of factors such as wheth ‑ er one spouse was primarily engaged in homemaking, the age and health of the parties, the financial need of the recipient, and the paying spouse’s financial capacity. In practice, cases in which courts actively order maintenance-oriented property division remain exceptional; such considerations are more commonly addressed through negotiation or mediation between the parties. 2.5 Prenuptial and Postnuptial Agreements Legal Status of Prenuptial and Postnuptial Agreements In Japan, prenuptial and postnuptial agreements are not widely used in practice. The Civil Code expressly recognises a marital prop ‑ erty agreement (Articles 755 et seq of the Civil Code) as a means by which the parties may agree upon a matrimonial property regime other than the statutory separate property system; see 2.3 Division of Assets (Matrimonial Property Regime and Property Division). However, a marital property agreement must be con ‑ cluded prior to the filing of the marriage registration,
157 CHAMBERS.COM
Powered by FlippingBook