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Tuesday, May 15, 2012
Name on deeds shouldn't affect divorce asset split
By MASAKO SUZUKI
Mr. A writes: "I'm a foreigner who has been married to a Japanese for more than 20 years. We bought a house in her name a few years ago, with a loan that's due after 30 years. Every month I pay half of the monthly installment.
"My question is, as our house is actually in her name, what if one day we divorce and she claims that the house belongs to her?
"Also, I'd like to know what kind of monetary claims I would be able to make in the event of a divorce. Please advise me."
In your case, since your wife is a Japanese national who has habitual residence in Japan, your divorce would be governed by Japanese law (according to Article 27 of the Act on General Rules for Application of Laws).
As you might know, in Japan there are several types of divorce, including divorce by mutual agreement, by mediation and by judgment.
There are three possible monetary claims that you can file for upon divorce: division of property, compensation and child support. There is no concept of alimony after divorce in Japan.
1. Division of property
The general principle applied by Japanese courts is to divide the property that the couple saved since the marriage between the two parties. However, this division doesn't apply to any property that one partner either inherited or was given (known as "separate property"), even if the party came into possession of such property after the marriage.
In your case, provided that your house was not bought — nor the mortgage paid for — with money derived from "separate" (given or inherited) property, the house would be divided between you both upon divorce. The fact that the property is owned by one partner or the other should not matter.
Likewise, the loan would be negative property, also divided accordingly. In addition, savings would be divvied up regardless of the name on the account, unless again they are "separate property."
However, it is worth bearing in mind that the party who has ownership on paper is legally entitled to sell the property at any time. If you think there is a possibility that your wife would consider doing this, you would be well-advised to take preventive measures, such as by persuading her to change the deeds from sole to co-ownership.
The ratio of the division of assets at divorce has traditionally been between 30-70 and 50-50, although recently this has been changing, with judges splitting assets down the middle in most cases, even if one party has no occupation.
Please note that the court does not have the power to force either of the parties to disclose information about their property. For this reason, it is important to figure out if the property is owned in the other party's name in advance.
On a similar point, when it comes to savings, you do not have to know the bank account number, but you should make sure you know the name of the bank and branch where any disputed savings accounts are registered.
Sometimes in divorce proceedings, the timing of the assessment of the worth of property can become an issue — in particular the matter of whether an estimate is made at the time of divorce or separation. There is disagreement over this point, but usually a judge would order an assessment of the property at the time of the separation. Incidentally, if you do not divide the property upon divorce, you can still make a claim up to two years later.
2. Consolation money
On top of the division of property, you are entitled to make a claim for consolation money if you can make the case that the other party is responsible for the breakdown of the relationship. This can be filed no later than three years after the divorce.
3. Child support
If you have children with your wife and end up with custody of any of them after the divorce, you can request child support.
A change to the Civil Code regarding this point went into effect this April. According to the new version of the code, if parents divorce by agreement, sharing the expenses necessary for bringing up the child shall be determined by that agreement (Article 766 of the Civil Code).
With this change, a field has been added to the divorce registration form that has to be checked, theoretically confirming that both parties have agreed upon the division of child support payments. In practice, however, it is still possible not to tick the box and divorce without reaching a satisfactory agreement on this point.
In Japan, many parents with an obligation to provide child support get away with not paying. This revision of the Civil Code was supposed to help prevent this happening, but the move is unlikely to significantly affect this unfortunate outcome.
Masako Suzuki is an attorney with the Section of Legal Assistance for Foreigners at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area. TPLO lawyers address readers' legal concerns on the second Tuesday of the month. Website: www.t-pblo.jp/slaf. Phone: (03) 5979-2880. Send questions to firstname.lastname@example.org