How Are Assets Divided in a Divorce in Japan?

When considering divorce in Japan, it is essential to consider how assets are divided in a divorce in Japan. In Japan, the equitable distribution of property is guided by Article 768 of the Japanese Civil Code, which allows for the division of shared assets during divorce. Let’s break down the key points:

Types of Property: Separate and Marital Assets

1. Separate Property (Kojin Zaisan):

   • Assets owned by one spouse prior to the marriage typically remain that spouse’s separate property.
   • Inheritances and monetary gifts received individually during the marriage are generally considered separate property.

2. Marital Property (Kyōyū Zaisan):

   • Assets acquired during the marriage through the joint efforts of the couple are considered “marital property.” For example:
     • Savings
     • Real estate purchased during the marriage
     • Investments
     • Movable goods such as vehicles or household items
   • Even if only one spouse was the primary earner, contributions from the non-earning spouse, including homemaking and raising children, may be recognized as a form of joint effort.

Equitable Distribution

When dividing assets, Japan follows a principle of gōkaku bunpai, or “equal distribution.” While assets are often divided equally, this depends on the circumstances, such as:

• The nature of the property
• The level of involvement by each spouse in acquiring or maintaining the marital property
• Contributions to the household, including managing finances or raising children

In practice, courts often aim for a 50-50 division of marital assets unless evidence or specific circumstances support a different allocation.

Steps in the Division Process

1. Negotiation and Mediation: Many couples reach an agreement on asset division through private negotiations or through mediation (chōtei) at a family court. This is often the most amicable and cost-effective route.
2. Court Decision: If mediation fails, a contested divorce may proceed to the family court, where a judge will decide on the division of assets based on the evidence presented.

What Assets May Be Excluded From Division?

While marital property is subject to division, separate assets typically are not. The burden of proof lies with the spouse claiming certain property as separate. For example:

• A savings account opened before the marriage will generally be considered separate property unless it was merged with marital funds.
• Items received as inheritances or personal gifts during the marriage are usually exempt but should be documented clearly.

The Role of Prenuptial Agreements in Asset Division

A prenuptial agreement (konyaku kēyaku) is a legal contract entered into by a couple before marriage, outlining how assets and liabilities will be divided should the marriage dissolve. While prenuptial agreements are less common in Japan compared to some other countries, they are legally enforceable as long as they meet certain conditions:

1. It must comply with general principles of contract law.
2. It must not include terms that are deemed unfair, exploitative, or contrary to public order and morals (kōjo ryōzoku).

Prenuptial agreements can provide clarity and help prevent drawn-out disputes in the event of a divorce. For instance, the agreement may specify which assets are to remain separate and how jointly held property will be handled.

However, due to their relative rarity in Japan and the potential for disputes over validity, it’s important to seek proper legal advice when drafting a prenuptial agreement to ensure it’s binding and enforceable.

How Can You Protect Your Financial Interests?

1. Maintain Financial Transparency: Keep detailed records of property ownership and contributions during the marriage. This can help clarify what qualifies as separate or marital property.
2. Consider a Prenuptial Agreement: If you’re planning to marry, a tailored agreement can help protect your assets and simplify asset division if the marriage ends.
3. Seek Expert Legal Advice: Consulting with an experienced family law attorney can ensure your rights are protected and guide you through the complexities of the divorce process in Japan.

Conclusion

The division of assets in the event of divorce in Japan is designed to be fair, with a focus on equitable distribution of marital property. However, determining the boundaries between separate and shared assets can be nuanced and may require negotiation or legal intervention. Whether you’re preparing for marriage or navigating a divorce, understanding the applicable laws and considering tools like prenuptial agreements can help you protect your financial interests and navigate this challenging time more smoothly.

If you have questions about asset division, prenuptial agreements, or other family law matters in Japan, our experienced attorneys are here to assist. Contact us today to schedule a consultation and take the first step toward resolving your concerns.

How We Can Help

At Ohara & Furukawa, we understand that every divorce case is unique. Our experienced family law team provides compassionate, tailored legal support, ensuring you understand your rights and obligations under Japanese law. Whether you’re considering a mutual agreement divorce or facing a complex litigation process, we’re here to guide you every step of the way.

Contact us today for a consultation with one of our attorneys and take the first step toward clarity and resolution.