Jeremy D. Morley, Attorney-at-Law, International Divorce Law Office at Morley & Trager, New York, NY, USA.

This article is based in part on the author’s extensive personal and professional work in and with Japan and his representation of numerous clients with international family matters pertaining to Japan. The author was formerly a lecturer in law at the University of Sheffield, England and Assistant Professor, Faculty of Law, University of New Brunswick, Canada.

Japanese family law is structured so as to respect and encourage the private resolution of family issues. Under the "family registration" (“koseki”) system, changes in family status and relationships do not require any official approval. The parties acquire or alter their family status privately, by registering any changes with public officials who maintain the family registers. As an integral part of the koseki system, Article 763 of the Civil Code of Japan authorizes a husband and wife to divorce by mutual agreement. Such divorces are known as “kyogi rikon” divorces.

More than 90% of all divorces in Japan are kyogi rikon consent divorces. The process is fast, simple and entirely non-judicial, requiring only that both spouses sign or seal a form which is then filed with the local registry office. International couples may obtain a consent divorce in Japan if one of them is a Japanese citizen. Horei Law on the Application of Laws, Law No. 10 of 1898 (as amended 2001), Art. 16 (found at http://www.international-divorce.com/d-japan.htm). If the parties cannot agree, divorces may also be obtained in Japan through the court system.

In the author’s opinion, many Japanese consent divorces dissolving international marriages are unlikely to be recognised in Britain, by virtue of Sections 45 and 46 of the Family Law Act 1986. On the other hand, judicial Japanese divorces will generally be recognised in Britain and are not the subject of this article. 

The spouses’ domicile at the time of their divorce is the key element in determining whether a Japanese consent divorce will be recognised in the U.K. If both spouses were domiciled in Japan at the time of their divorce, courts in the U.K will recognise the divorce (unless one spouse was habitually resident in the U.K. throughout the one year period preceding the divorce). However, if either spouse was not a Japanese domiciliary at the time of the divorce, it is likely that the U.K. courts will not recognise the divorce (unless the non-Japanese domiciliary spouse were domiciled in a country in which such consent divorces were valid). Family Law Act Sec. 46(2). Since few non-Islamic countries allow non-judicial divorce by consent, in most cases a U.K. court will not recognise Japanese consent divorces unless both spouses were actually domiciled in Japan at the time of the divorce.

 The anticipated non-recognition of Japanese consent divorces if either spouse was not a Japanese domiciliary on the date of the divorce gives rise to a serious and generally unrecognised problem for international people who have been or may become divorced in Japan, especially if they have subsequently remarried or otherwise altered their affairs.

Family Law Act 1986 Section 46

 The Family Law Act 1986 contains the current and exclusive provisions for the recognition of overseas divorces in the U.K. Family Law Act Secs. 45-49. Section 46 establishes two distinct categories of overseas divorce. Subsection (1) applies to overseas divorces obtained “by means of proceedings” while subsection (2) applies to overseas divorces obtained “other than by means of proceedings.”

 Subsection (1) provides that:

”The validity of an overseas divorce, annulment or legal separation obtained by means of proceedings shall be recognised if --

(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; and

(b) at the relevant date either party to the marriage --

(i) was habitually resident in the country in which the divorce, annulment or legal separation was obtained; or

(ii) was domiciled in that country; or

(iii) was a national of that country.”

 Thus, subsection (1) sets forth three requirements for recognition. The first is that the divorce was “obtained by means of proceedings.” It is this requirement that creates the fundamental problem concerning kyogi rikon divorces. The second requirement is that the divorce is “valid in the country in which it was obtained.” This is necessarily satisfied in every case in which a consent divorce is secured in Japan in compliance with the provisions of Japanese law. The third requirement is that one spouse was habitually resident or domiciled in Japan at the time of the divorce. This is satisfied for all consent divorces in Japan unless both spouses were both living and domiciled outside Japan at the time of the divorce.

 If kyogi rikon divorces are not “obtained by means of proceedings” then the much more restrictive provisions of subsection (2) of the Act will govern. This provides that: 

“The validity of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings shall be recognised if --

(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained;

(b) at the relevant date --

(i) each party to the marriage was domiciled in that country; or

(ii) either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid; and

(iii) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.”

Subsection (2) requires the party seeking recognition of a foreign divorce to establish not only that the divorce is valid in the country that granted the divorce, but also that, on the date of the divorce, both parties were domiciled that country, or one party was domiciled there and the other was domiciled in a country which recognised such a divorce. In addition, the divorce will not be recognised if either party had been habitually resident in the United Kingdom throughout the period of the year immediately preceding the divorce. 

Accordingly, it is of great significance to determine the meaning of the term “proceedings” and then to apply that meaning to kyogi rikon divorces. 

“Proceedings” 

At common law a foreign divorce was recognised only if it were valid according to the law of the spouses’ joint domicile, which, because of the concept of the domicile of dependency, meant the domicile of the husband. In 1973, the wife’s domicile of dependency was abolished by statute, so that a husband and wife could have different domiciles. Domicile and Matrimonial Proceedings Act 1973. Thus, a foreign divorce would not be recognised at common law unless it were valid according to the law of both spouses’ domiciles. The Recognition of Divorces and Legal Separations Act 1971, as amended in 1973, created a more liberal statutory basis for the recognition of foreign divorces, but only if the divorce was “obtained by means of judicial or other proceedings in any country outside the British Isles” (Sec. 2(a)).  

The law concerning foreign divorce recognition was reformulated in the Family Law Act 1986. The term “proceedings” was used to distinguish between divorces governed by the liberal recognition principles of Section 46(1) and divorces governed by the much more restrictive regime of Section 46(2). Section 54(1) of the Family Law Act 1986 provides that “‘Proceedings’ means judicial or other proceedings.” Accordingly, the term “proceedings” should be given the same meaning as in the 1971 Act. 

Courts have most frequently interpreted the term “proceedings” in the context of Muslim talaq divorces, which are not granted by a court and are based primarily on certain formal pronouncements by the husband in front of witnesses. The courts have drawn a clear distinction between two kinds of talaq divorce. The first kind, often described as a “bare talaq” divorce, requires only the traditional formula of a husband making certain statements in specified ways on certain occasions before witnesses. Courts have held that such a divorce process does not have sufficient formality or third-party oversight as to constitute a “proceeding” and have generally refused to recognise such foreign divorces unless both parties were domiciled in the foreign jurisdiction. Chaudhary v Chaudhary  [1985] FLR 476. The second type of talaq adds a significant degree of formality and third-party involvement to the traditional verbal formula. In such cases, the courts have generally held that the divorce process constitutes a “proceeding” such that the overseas divorce would be recognised. Quazi v Quazi [1980] AC 744. 

In Quazi, the House of Lords ruled that a talaq divorce that complied with Pakistan’s Muslim Family Laws Ordinance 1961 was obtained “by means of a … proceeding” within the meaning of Section 2(a) of the Recognition of Divorces and Legal Separations Act 1971. The House of Lords’ reviewed Section 7 of the Pakistani statute, which provided that talaq divorces required the following six steps:

(a) The pronouncement by the husband of the required statement of divorce in front of witnesses;

(b) The giving of written notice of such pronouncement to the Chairman of the local Union Council;

(c) The giving of written notice to the wife;

(d) A waiting period of ninety days thereafter, or of a longer period of time if the wife were pregnant;

(e) The constituting of an Arbitration Council within thirty days of the date the written notice is given; and

(f) The taking by the Arbitration Council of all steps necessary to try to bring about a reconciliation.

The House of Lords held that a divorce that complied with such requirements of was obtained by means of a “proceeding”, particularly since the requirements were enforced by the penal sanctions of the state. Lord Diplock said (at 808-9):

"The pronouncement of the talaq was required by law to be notified to a public authority, the Chairman of the Union Council; he in turn was required by law to constitute an arbitration council for the purposes of conciliation and to invite each spouse to nominate a representative. These are 'proceedings'; none the less so because in the event neither spouse elects to take advantage of the opportunity for conciliation which the arbitration council presents. They are proceedings that are not merely officially recognised but are also enforced by penal sanctions under the Muslim Family Laws Ordinance 1961. Without such proceedings the divorce by talaq never becomes effective. The proceedings come first, the divorce follows them 90 days after they have been commenced."

By contrast, in Chaudhary v Chaudhary  [1985] FLR 476, the Court of Appeal refused to recognise a bare talaq divorce that had been obtained in Kashmir in compliance with local requirements but without the extra procedural elements set forth in Pakistan’s Muslim Family Laws Ordinance. The divorce procedure comprised the bare religious element of the husband making the pronouncement of talaq in the religiously prescribed manner in front of the required witnesses.

The Court of Appeal held that, as a matter of statutory construction, the phrase "obtained by means of [judicial or other] proceedings" must be intended to differentiate between two classes of divorces, both of which are effective in the overseas country, since otherwise there would have been no purpose in the requirement at all and the Act would simply have provided that a divorce effective abroad was effective in the U.K. In addition, the Court stressed that the word “proceedings” must be given the same meaning that it would be given if used in normal speech, which imports a degree of formality as well as the involvement of a state or third-party agency that does more than simply review some papers.

Thus Cumming-Bruce LJ stated at 482:

"The criterion 'judicial or other proceedings' must be given a construction which restricts recognition to a narrower category of divorces than all divorces obtained by any means whatsoever which are effective by the law of the country in which the divorce was obtained."

Oliver LJ said (at 485):

"'Proceedings' must, in my judgement, at least bear in the statute a meaning which the word would have in normal speech where, as it seems to me, no-one would ordinarily refer to a private act conducted entirely by parties inter se or by one party alone, as a proceeding, even though the party performing it may give it an additional solemnity or even an efficacy by performing it in the presence of other persons whose only involvement is that they witness its performance.”

Oliver LJ proceeded to state (at 485) that:

“The word would not, in my judgement, ordinarily be used as being synonymous with 'procedure' or 'ritual'. Thus, for instance, the formalities which are required by law to be observed in the execution by a testator of a valid will under the provisions of the Wills Act 1837 would not, I should have thought, be normally referred to as 'proceedings' although the testator would be properly described as having gone through the correct procedure.”

He concluded (at 485) that:

“In the context, however, of a solemn change of status, it does seem to me that the word must import a degree of formality and at least the involvement of some agency, of or recognised by the state having a function that is more than simply probative, although Quazi v Quazi clearly shows that it need have no power of veto.”

Accordingly, Chaudhary stands for the proposition that a divorce procedure is not obtained by means of a “proceeding” if it results from the actions of one or both spouses and witnesses, with a state agency acting as a mere recorder of the information and having no other significant function.

The fundamental distinction between the two types of talaq divorce was then applied by the Immigration Appeal Tribunal in Baig v. Entry Clearance Officer, [2002] UKIAT 04229. A husband’s pronouncements of talaq divorce in the religiously prescribed manner and at the religiously prescribed times had resulted in a Pakistani Muslim divorce. However, there had been no notification to or involvement by the Chairman of the Union Council, any organ of the state or any third-party tribunal. The Immigration Appeal Tribunal held that the divorce should not be recognised in English law, since it had not been obtained by means of a “proceeding.”

By contrast, the Social Security and Child Support Commissioners determined that a panchayat divorce under the Hindu Law of India constitutes a divorce by means of “proceedings” within the meaning of Section 46(1). [1997] UKSSCSC CP_11496_1995 (05 February 1997). Their decision was based on expert evidence that the panchayat -- a council of elected members who make decisions on issues key to a village's social, cultural and economic life --  plays a well-established function in settling disputes and authorizing divorces in India.

Likewise, in El Fadl v El Fadl [2000] 1 FLR 175, Hughes J. held that a Muslim divorce in Lebanon had been obtained by means of a “proceeding” because of the role played by a Sharia court. Hughes J. held (at 188) that:

“Although the Sharia Court has no judicial decision to make whether there is to be divorce or no, what occurred before it with the assembly of the court, judge and clerk, and the duty to record into the register, having taken formal declarations, is properly described as ‘proceedings’ and the local law explicitly requires such proceedings as an integral part of the divorce process.”

Japanese Consent Divorces

Application of these principles to Japanese consent divorces compels the conclusion that they are not based on “judicial or other proceedings.” Kyogi rikon divorces are entirely non-judicial, do not involve the decision-making responsibility of any tribunal and do not require the participation of a lawyer. Indeed, lawyers are almost never involved in the process. The only requirements are that each spouse should sign a form, known as a “rikon todoke,” consenting to the divorce and providing information about basic facts such as the parties’ addresses, nationality (in the case of a non-Japanese citizen), occupation and children’s details; that two people should act as witnesses; and that the form should be filed with the registration office of the ward in which the spouses’ (or the Japanese spouse’s) family register is maintained. The parties do not need to make any appearance at the registry office.

Articles 766-769 of the Civil Code of Japan make provision for court involvement if parties who have been divorced by consent are unable to agree as to matters concerning children, property or family genealogy. In such cases, the validity of the consent divorce is entirely unaffected by the parties’ failure to agree on other issues or by their resort to the courts to resolve such issues.

The local registry offices perform nothing more than a purely ministerial recording function in connection with consent divorces. They have no other responsibility in connection with the divorce process. They provide no counseling or mediation service and they have no discretion to refuse to file a form that appears to have been correctly completed. There is not even any procedure for the registry offices to check the genuineness of the signatures.

The fact that the ward office has nothing more than a registering and filing responsibility is reflected in the fact that kyogi rikon divorces may quite easily be falsely procured based on a forged signature.  Indeed, forgery of rikon todoke forms is such a serious problem that that there is a special system to provide some protection for people who worry that their spouse will forge their name on such a form. If a spouse files a fujyurimouside form (a “petition for turning down” a divorce) with the municipal office, the ward office will not allow the other spouse to file a rikon todoke form within six months thereafter. Corroboration of the ministerial function of the registry office is provided by the fact that the Civil Code provides that if a registry office improperly accepts a consent divorce form, the validity of the divorce will not be affected. Civil Code, Article 765.

Accordingly, the kyogi rikon process is undertaken by the parties privately, without the involvement of any outside agency. The local registry offices perform only a recording function. There is nothing in the process that remotely resembles a “proceeding” of the kind anticipated by the UK legislation.

Conclusion

Japanese kyogi rikon divorces are not obtained by means of “proceedings” within the meaning of Section 46(1) of the Family Law Act 1986. This creates a potentially serious problem for international couples who divorce in Japan. If both spouses were domiciled in Japan at the time of their divorce, courts in the U.K will recognise the divorce, as provided in Section 46(2) of the 1986 Act, unless one party was habitually resident in the U.K. throughout the one year period preceding the divorce. However, if either spouse was a non-Japanese domiciliary at the time of the consent divorce, it is likely that a U.K. court will not recognise the divorce.