JAPAN Law and Practice Contributed by: Kenji Yano, Tokyo Kokusai Partners Law Office
Requirements for the establishment of a de facto relationship For a de facto relationship to merit legal protection, the following elements are generally required: • mutual intention to marry; and • the existence of a marital relationship in substance (ie, a stable and continuous cohabitation reflecting a marital union). Effect of Cohabitation Period and the Existence of Children The length of cohabitation or the mere existence of children does not, in itself, automatically give rise to legal rights. However, long-term cohabitation and the joint upbring ‑ ing of children are often regarded as significant factors supporting the inference that a legally protectable de facto marital relationship has been established. 2.7 Enforcement of Financial Orders Enforcement Measures Where a party fails to comply with an order for proper ‑ ty division or child support made by way of mediation or judgment, the entitled party may seek measures to secure performance. First, an application may be made to the Family Court for a recommendation for performance (Personal Sta ‑ tus Litigation Act, Article 38; Domestic Relations Case Procedure Act, Article 289). A recommendation for performance is a measure by which the court urges voluntary compliance; although it does not carry direct coercive force, it is considered to have a certain prac ‑ tical and psychological effect. If compliance is still not forthcoming, the creditor may initiate compulsory execution under the Civil Execu ‑ tion Act. This may include the attachment and sale of real property (land and buildings), the attachment and collection of bank deposits or salary claims, and execution against movable property. 2026 Amended Civil Code With respect to child support claims, a statutory lien has been introduced (Amended Civil Code, Article 308-2), and a system for orders requiring the disclo ‑
and must be registered. In principle, it cannot be modified after marriage. Owing to these strict formal requirements, such agreements are used only in limit ‑ ed circumstances in practice. Moreover, if the content of an agreement contravenes the principle of spousal equality or the essential nature of marriage, it may be held void as contrary to public policy. So-called postnuptial agreements concluded after marriage may also be valid as ordinary contracts; however, their enforceability may likewise be restrict ‑ ed on grounds of public policy and fairness. Treatment by the Courts There is no established Supreme Court precedent expressly holding that prenuptial or postnuptial agreements are determinative or strictly binding on the court in divorce proceedings. In practice, the con ‑ tent of such agreements is generally regarded as one factor among others to be taken into account in the court’s overall assessment, rather than as conclusive. 2.6 Cohabitation: Division of Assets Between Unmarried Couples Dissolution of Unmarried Relationships and Division of Property De facto marriage (Naien) For unmarried couples, the statutory rules on division of property under Article 768 of the Civil Code do not apply, in principle. However, case law has recognised that, where a de facto marital relationship ( naien ) satisfies certain requirements, it may be treated as a relationship equivalent to marriage, and the rules on division of property may be applied by analogy (Tokyo Family Court, 25 July 1956, Family Court Monthly Report Vol ‑ ume 9, No 10, p 39). That said, a de facto relationship is not treated as being identical to a legal marriage. Whether division of property is available and, if so, its scope and content are determined at the court’s discretion in light of the specific circumstances of the parties.
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