By Arudou Debito
December 2, 2006
I originally wrote a preliminary research essay on divorce in Japan last July (blogged at http://www.debito.org/index.php/?p=9). I neglected to mention that I was currently going through a very messy one myself. Now that it is over with, it is time to give a more complete picture.
This post is structured as follows:
TYPES OF DIVORCES IN JAPAN, AND WHAT YOU HAVE TO GO THROUGH
WHY I WENT THROUGH ONE, AND THE AFTERMATH
CONCLUSIONS AND LINKS
From February 2004, when I asked my ex-wife for a divorce, to September 2006, when it was finally granted after more than two and a half years of negotiations, I went through one of the most difficult experiences of my life. I had finally come to the conclusion that I had made a serious mistake in my life matrimonially and decided to extricate myself. In the process, I have found that the mechanisms for divorce proceedings in Japan are quite practical, but the process half-assed. Particularly because the system forces fragile matrimony into acrimony, then lacks enforcement of either child support or visitation rights (it also does not allow joint custody). In other words, when the Japanese government mediates, it does so by half-measures: aggravating the situation during the divorce, then leaving the couple alone afterwards to hurt each other and the children. I present my case for what it’s worth in hopes that people, considering either marriage with or divorce from a Japanese, will make more informed decisions before taking either step.
It is of course not easy to divulge information this personal to public view. No doubt some online fora will react to it with characteristic Schadenfreude. However (and this has been my creed all along when creating the archive at debito.org), I believe that given my position in this society, both as a cataloguer of life in Japan and as a naturalized advocate for human rights, this is part of the job description. What I went through is in many ways instructive, and the lessons I have learned from this episode, however painful for me to recount, may be of value to others plighting their troth in Japan who want to avoid my plight. Particularly since many of the “Bubble Boomers” in the foreign community–i.e. those who came over during the Bubble Economy and found themselves staying on–have reached middle age and are realizing a few things about life’s big decisions.
Japanese marriage and divorce laws are two very odd bedfellows: One very easily gives non-Japanese strong roots in Japan in terms of visas, job security, and social standing. The other may cost you everything you ever built up or cared about in Japan–including your visa, property, and children. I believe many people out there may benefit from what I’ve learned.
We certainly talk enough about Japanese marriage. However, divorce is also part of life in Japan, and it should also be discussed constructively and instructively like anything else. It is not, however, an indictment of marriage to or between Japanese (for there are many happy unions out there). It is merely a tale of how one person, who happens to be a fluent but non-native speaker of Japanese, managed to navigate Japan’s system successfully. Here goes:
TYPES OF DIVORCES IN JAPAN, AND WHAT YOU HAVE TO GO THROUGH
There are three kinds of divorce in Japan–divorce just between the couple, divorce involving State mediation, or divorce involving court ruling:
“KYOUGI RIKON” (DIVORCE BY MUTUAL CONSENT)
Divorce can start off as simply as it did when asking for your partner’s hand in marriage. You broach the subject, talk it over, and hope that your partner agrees with you that the marriage is beyond repair. If so, all you have to do is go to the ward office (shiyakusho, kuyakusho, or chouyakuba) where your family is registered, and file a “rikon todoke” 離婚届, the exact inverse of the “kon’in todoke” 婚姻届 you filed to get married. You both put your registered “inkan” stamps on the paper, fill out some more spaces on the form, and you’re divorced. Simple as that. (And if you have some additional odds and ends you want settled in writing, hire a lawyer (bengoshi) or a legal scrivener (shihou shoushi) before or after to take care of them.)
“Kyougi rikon” happens, according to the lawyer who worked with me on my case, in about 60% of Japanese divorces. (The clearest example of one is the “Narita Rikon”, where a newlywed couple honeymoons in Hawaii, find they don’t much like each other, go home separately from Narita Airport upon repatriation, then summarily stamp and file the paperwork.) This can be a very clean break if there are no children, no investments, little elapsed time in your marriage, etc. However, the longer you are married, naturally the harder your break becomes.
This brings us to the next type of divorce:
Choutei happens in about 35% of Japanese divorces. You go to Family Court (Katei Saibansho) by yourself or with a legal representative. (I hired a lawyer, because as a non-native speaker I did not want to navigate this system without legal counsel; so did my ex-wife, eventually. It costs about US $3000 for the retainer.) Make an appointment, and you’ll have your first hearing in a month or two.
Bear in mind however that a Choutei is not a court proceeding. It is a system for people who wish to take their case up with an official body for mediation. However, it is actually designed, according to my lawyer, to keep all but the most difficult cases out of a courtroom. (In fact, you will not be allowed to meet a judge at all until after at least a few Choutei meetings; when you can declare “failure” (fu seiritsu) and go to a real courtroom. More on that below.)
A typical Choutei meets once every month or two. I found them quite civilized. You and your ex (and/or legal representatives) take turns meeting with Choutei members (choutei iin) in a room in the center of the courthouse. You wait your turn on one side of the courthouse or the other (depending on whether you want the divorce or contest it), which means you never have to see your ex face-to-face at all during the proceedings.
Meetings take an hour or two, and my longest (out of well over a dozen) lasted about three hours.
The Choutei group is comprised of three members, One is a representative of the court (but not a judge), while the other two are anonymous “people of awareness” (yuushiki sha). The latter are volunteers who most likely have no training as marriage counselors–they are essentially locals past middle age with an “upstanding character” somehow determined by the court. Unsurprisingly (given the potential unprofessionality, see below), the Choutei does not make legally-binding judgments. Rather, it will nudge both parties towards either reconciliation or dissolution, after hearing both sides as impartially as possible. In theory, anyway.
Which brings me to an interesting, but nightmarish, aside:
* * * * * * * * * * * * * *
My first Choutei meeting had one man (I found out later that he was a buchou in a local cookie factory) who, as the most senior member in his mid-sixties, was leading the proceeding. Plus another woman about the same age. And a court bureaucrat who said nothing the whole time.
My lawyer and I went first that day, making my case for about 25 minutes. I got what I saw as sympathetic comments from Mr Cookies. Then my ex-wife went, and took about an hour and a half, as is her wont. When I went back in, I could see Mr Cookies now had a chip on his shoulder. For he opened with:
“Do you love your children?”
“I said, ‘Do you love your children?'”
I asked him what business it was of his to question my love for my children.
“Because if you do indeed love your children, you will not seek this divorce.”
I then not calmly questioned his impartiality, and left the room for a good twenty minutes to cool down. When my lawyer retrieved me, he told me I was perfectly right to get so incensed: “I have never seen such bias off the bat like that in any Choutei I’ve been in. After a few meetings, sure, put some pressure somewhere. But to hear one side, then another, once each, and assume that you’ve heard everything you need to hear to make a snap decision like that, sore wa hidoi. Must be because we’re in a rural courtroom.”
When I went back in, I demanded an apology from Mr Cookies. He gave one. Then I told him I wanted him off this Choutei since clearly his pronouncements were half-baked. He said he would tender his resignation. We filed a motion with the court to that effect and things were rectified by the next meeting. Mr Cookie Replacement kept his head and held his tongue throughout the next two years.
Moral: Do the same if you feel your Choutei Iin member is showing partiality. You have a right a fair hearing. No need to suffer the amateurs, larkers, or dilettantes you see on the Japanese kvetch TV shows in your real life.
* * * * * * * * * * * * * *
Back to the procedures. Even if the system rightfully keeps warring couples apart, it has one major endemic flaw: It forces an assignation of blame. This probably makes things worse.
According to my lawyer, divorce laws have not been fundamentally changed since 1898! Which means things are probably behind the times. Biggest indicator: “Irreconcilable differences” (seikaku no fuitchi 性格の不一致), better known as “we just don’t like each other anymore”, are not officially considered adequate grounds for divorce in Japan.
This is why you must be very careful before inviting the State in as intermediary in your divorce. It is entirely possible they will just aggravate the situation.
Why? Because in Family Court, you must claim that your marriage is no longer functional because one side has done wrong–be it refusing sex, being profligate with money, breaking a serious criminal law, sleeping around (uwaki), etc. More below. But even if you don’t feel like bringing these things up, too bad. Those are essentially THE grounds for divorce in this country.
Unfortunately, having to portray your marriage as a living hell, even when it wasn’t, is almost guaranteed to inspire animosity and non-cooperation from your partner.
Then once your partner digs her heels in, you’re stuck. For again, unless both sides agree to the divorce, it will not happen. Unless a judge in the Family Court rules to grant it. But as I said, the Choutei does not involve judges, so here the system grinds to a halt.
This is why many Japanese couples choose to live separately while legally married (bekkyo), or even still live together even though they are not on speaking terms! (katei nai bekkyo) This is also one reason why, I believe, divorce rates in Japan are artificially low. (Another reason is of course economics. I forecast that starting from April 2007, when the law changes so that Japanese wives can claim half their ex-husband’s pension for themselves in old age, the Japanese divorce rate will leap.)
Choutei takes as long as it takes. In my case, it lasted more than two years. We would come to our separated rooms at a preset time (usually about 10:30 AM on a Friday morning), then say our piece orally after submitting something in advance in writing. Then the other side would go in and say their piece. Then an hour or two later we’d see if we had reached a conclusion. We didn’t, so the Choutei would schedule another meeting for one to three months later. Lather, rinse, repeat.
According to my lawyer, Choutei (or suspended versions thereof) lasting *five to ten years* are not unusual in Japan–for legal precedent has established that you need to be separated for at least that amount of time before a judge will finally rule that your marriage is really, really over (hatan). And this is way down from the *twenty-year* separations necessary for “hatan” a generation ago!
I won’t go into detail on why my Choutei took so long, since my example offers no real lessons for the general readership. But I will tell you what broke the logjam: My threatening to dissolve the Choutei and go to court. This brings us to the third type of divorce in Japan:
By design, few divorces are brought before a judge–only about 5%. But in this case, both sides will have their statements recorded, often for the public record, with a ruling one way or the other at the end.
However, there is a built-in discouragement of divorce even in Japanese court. As I said above, Japan’s divorce laws have remained fundamentally unchanged for more than a century. Back then, the Meiji-Era oligarchs saw the divorce rate (which at the time was *higher* than the West!), felt it was an embarrassment to Japan, and overstrengthened the marriage laws to the point where divorce then became extremely difficult (see Fuess, DIVORCE IN JAPAN).
Thus, according to Civil Code (Minpou) Article 770, Clause 1, there are currently five grounds for divorce:
1) infidelity (futei na koui)
2) malicious desertion (akui na iki)
3) uncertainty whether or not the spouse is dead or alive (shoushi) for three years or more,
4) serious mental disease (seishinbyou) without hope of recovery, or
5) a “grave reason” (juudai na jiyu) which makes continuing the marriage impossible.
Article 770 Clause 2, however, allows a judge to overrule the first four items above if he (usually he) thinks the marriage should stand.
What is considered a “grave reason” is unclear, and entirely at the discretion (sairyou) of the judge. One reason could be the wife refusing the husband sexual relations for a long period of time (a claim only men can make). Another could be the husband refusing the family unit his financial support (a claim only women can make). However, again, the simple fact that you cannot stand the very sight of each other anymore will not be considered adequate grounds. So if there are no laws broken, the judge is probably going to rule against the divorce if you don’t wait five to ten years.
Fortunately, my case never went to court. After two years of cat-and-mouse, it became clear that my ex-wife, a politician in a local town assembly, did not want to air our dirty laundry in public (and a heckuva lot was aired in writing at the Choutei; this is, by the way, admissible in court). I also had two concurrent events in my favor–that her father died last July (and she neglected to inform me), and that my daughter was sent to the US to attend school (which she also neglected to inform me of–violating international law and The Hague Convention about border crossings without the consent of both parents). Now I could not only make the case that she had committed a criminal act, but also probably demonstrate that we were indeed no longer a married couple (for what real wife would not tell her husband about a parent’s funeral?). In other words, I got lucky. I beat the odds because my ex did stupid things.
Other friends of mine have had more thorough court experiences. Once I bring up the topic of divorce over beers, lots of people come out of the woodwork to say ,”Me too!” It seems to be one of the worst-kept secrets of relationships in Japan. I have heard some awe-inspiring courtroom horror stories (such as a friend’s ex lying to a judge, and, thanks to Japan’s weak perjury laws, suffering no sanction whatsoever), but they should be told by the people themselves. If anyone wants to impart their experiences anonymously, contact me at firstname.lastname@example.org and I will archive them later in the online version of this essay.
(My friend Mark over at the Children’s Rights Network Japan http://www.crnjapan.com would also be happy to hear your cases: mark AT crnjapan DOT com)
WHY I ASKED FOR A DIVORCE, AND THE AFTERMATH
I’m sure the chattering classes and keyboard clackers out there are licking their lips and saying, “See? Arudou Debito’s activism wrecked his marriage!”
Sorry, but that’s not what happened. I am the one who asked for the divorce, remember. And even if I had never seen or participated in a human-rights issue, I believe the outcome eventually would still have been the same. Our marriage was doomed. We just weren’t the right people for each other, and time only brought that out into further relief. I’m not going into details (those issues are just between her and me), but I realized about five years into the marriage that I had made a mistake. Nevertheless, I stuck it out, giving it sixteen years of my life before asking for a separation. I did not take this step lightly. She was the very reason I came to Japan in the first place. I changed my entire life to be with her.
I had hoped that we could do this amicably, and did my best to fulfill my obligations in good faith. From the start, right after the separation and then onwards, I continued paying the house mortgage (11 man per month, plus 33 man out of every biannual bonus). Plus 5 man a month child support. This total of 16 man per month is the alimony amount assessed by the local Bar Association (they have a chart) based upon her and my incomes (hers as a public servant are stable, mine have been dropping substantially every year for several years now, thanks to Hokkaido’s awful economy. I have always lived very frugally anyway, so I’m coping). I also immediately agreed to pay for and let the children stay in the house (it’s still in my name) at no cost until they reach legal adulthood in Japan (age 20); then we’ll renegotiate. That’s not just generous–that’s the very best I can do from an economic standpoint.
However, amicably was not how it went. I say that part of it was due to, as I mentioned above, the systemic need to incriminate your partner. But part of it was definitely interpersonal, because one side was not at any stage willing to admit fault or defeat or say sorry in any way. Plus resorted to using the kids as weapons, denying me visitation or any contact with them, while fostering ill-feelings towards the parent who had no way to reply.
This is the worst part of the divorce process in Japan–you just can’t stop this sort of thing from happening. Japan’s laws to secure either child support or child visitation are weak or unenforceable. Joint Custody is also not legal in Japan outside of marriage. In too many cases to recount (the Japanese government does not keep statistics on this sort of thing), after a divorce one parent gets exclusive rights to the child, then denies the other party any access whatsoever. Best example: former Prime Minister Koizumi! See “For Japanese, a Typical Tale of Divorce”, Washington Post, May 19, 2001:
Then you get into a duel–between “Fortress Moms” and “Deadbeat Dads”–and if something is demanded either way we get a horrible cycle of bargaining: “I’ll pay child support if you let me see the kids”. And there’s not a lot you can do either way because, you see, NOW the State refuses to get involved.
(And it creates legal conundrums stable and predictable enough to spawn oodles of nasty books, particularly on how to use divorce proceedings to extract the most from your ex-husband. Do a search for “rikon” at amazon.co.jp and see for yourself.)
I wasn’t about to play that game, since my children would suffer financially. So I just kept on paying child support and pointing out to the Choutei that I wanted to see the kids. But every time my ex continued to deny access, even refused to give me photographs! In the end, however, it all worked in my favor: Two years of clear good faith vs. bad helped convince the Choutei that I had a case. In the last months of the negotiations, they began putting pressure on her to sign the papers. She did last September.
In retrospect, this outcome may not be all that surprising. According to my lawyer, most people wanting divorces in Japan are women, and most commonly on easy grounds like infidelity. In fact, of all the divorces my lawyer has ever taken on, mine was his first where the Plaintiff was male. Because in his view my situation was prima facie strong enough. That is, again, quite indicative. And given how our relationship exploded into this degree of venom afterwards, I feel doubly reassured that I have ultimately made the right decision.
In the end, was getting a divorce worth it? After all, I have lost my kids and a good chunk of my paycheck for the next decade. I also lost the main reason I naturalized (my house), which is my property but not my home anymore. In terms of finances, I have wiped out my personal savings and a good few months’ pay on top of that with the divorce settlement and legal fees. All told, I spent a good $20,000 US to extricate myself. I am, however, fortunate that I am a naturalized citizen (and this also applies to Permanent Residents), for afterwards I had no visa issues. I also consider myself lucky that this quite normally messy divorce by Japanese standards only took about three years.
Compare and contrast the paths not taken: I have a friend whose marriage was in trouble yet who stayed with his wife. We meet every now and again to swap notes. He is happy that he can still maintain his relationship with his children, and has reached a detente of sorts with his wife and meddling in-laws. So it seems to have worked out. Good for him. As for me, I am very happy to be free of my ex, but dreadfully sad about having no contact with my children. I skype my older daughter in the US every two weeks or so (even though she’s a fluent English speaker now, we communicate in Japanese), but I have not been able to see, speak to, or even see a photo of my younger daughter for more than two and a half years. Under the divorce agreement, I can meet her when she’s good and ready to do so–but given how much one-sided bile has been injected into our relationship, I’m not sure when that will happen, if ever.
In sum, I will have regrets that will stay with me the rest of my life. I failed as a husband and a father. As author James Michener said, “I don’t think any man who has gone through a divorce can ever kid himself into believing that he is a success.” Another image that lingers is of Russell Crowe’s divorced character at the end of movie THE INSIDER–where he’s divorced and sitting alone in a hotel room looking at the wallpaper, watching his kids play in reminiscence. Fortunately, for me the feeling of sorrow is nothing like that. Yeah, I have my moments, when something (a song, a toy, or being a guest at a friend’s house where he reads his daughter a bedtime story) triggers a memory and I get all blubbery. But then I sit down, have a good twenty-minute-or-so cry, and get it out of my system. Maybe send my kids a letter or a postcard. Then I get back on with life.
Still, even if I had the chance to do it all over again, I would still ask for the divorce. I’m a lot happier now than I was back then, and believe it or not, I don’t miss my house at all, even though I live in a one-room bachelor pad now. Reason is, I felt consistent anger whenever I would come home and find things that I needed changing had not changed, no matter what I did. To the point where I did not want to come home all that much. It stopped being my home long ago. Years of that were not good for me, and especially not good for the children. And since that situation was not going to change, even after a extra-prolonged Good Old College Try, I asked for an out. I tried to do it nicely, but given the system as it stands, that was not to be. I hope I can make amends when the children get old enough to understand the importance of hearing more than one side of the story. I know that I (also a child of a nasty divorce, not having any contact with my biological father for over 25 years–see http://www.debito.org/americatrekthree.html) eventually came round and wanted to know.
So that’s that. I have gone through one of the more rotten experiences a person will have to go through in their life. I’m going to be a little grumpy at times on the mailing lists, since I’m going through a bit of a bad phase. However, I am confident that time heals, or at least alleviates pain well enough so that I can start writing a bit more chipperly. I am also confident that people who show earnestness in interpersonal communications will ultimately be given a proper hearing. Well, here’s hoping, anyway.
Meanwhile, let’s continue creating good Karma. Hope you got something good out of this essay.
December 2, 2006
Divorce Statistics in Japan, courtesy of Health Ministry (Japanese)
“Divorce in Japan: What a Mess”, Debito.org June 20, 2006
“Child Custody in Japan isn’t based on rules”, SF Chronicle Aug 27, 2006
Primers on the issue: Japan Times Community Page July 18, 2006, and Debito.org
An immense site devoted to international divorce and child custody rights in Japan
“The Children’s Rights Network Japan”