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Tuesday, June 12, 2012
More than divorce: Courts could even help save your marriage
By YUICHI KAWAMOTO
Concerned mother M writes: "In a situation where my husband doesn't give me any money for food or to look after our child, yet we still live together and pay 50/50 for our apartment, can I ask a lawyer to force him to pay, or in Japan can I only demand money after divorce?
"Do I have to pay 50/50 rent fee with him? He makes ¥700,000 a month and I make ¥200,000. How can I make him pay for me and our child?"
No married couple is without its problems, the vast majority of which remain private matters between husband and wife — and perhaps their closest confidants — unless matters come to a head and one or both partners are considering divorce.
Although most people only turn to the courts when it comes to ending a marriage, family courts can offer support in a number of other areas before a couple reaches this point — such as on the issue of payment (or otherwise) of living expenses between spouses, as in M's case.
Family courts in Japan have three different types of procedures, namely chōtei, shinpan and saiban (also known as soshō). In most cases the nature of the case determines the type of procedure that should be used, although some allow multiple options. In many cases the law requires that chōtei precedes saiban.
Chōtei is often translated as mediation or arbitration, and it basically involves negotiation between two parties in court with the support of mediators. Since this is not a rigorously legal procedure, a chōtei can be filed for almost any issue that might arise in a family.
In a chōtei between a married couple, both the husband and wife are summoned to court at the same time, but are placed in separate waiting rooms. Two mediators (chōtei-in, one female and one male) call one spouse to their room and listen to what he/she has to say. Then he/she is brought back to the waiting room and the mediators repeat the same process with the other partner.
Usually they listen to each party for about 30 minutes at a time, and hear from each side twice in one session. During this time, they try to explain the law to both parties, and see if they can come to some kind of agreement over their grievances. At the end of each session, the mediators give each party something to consider for the next session, usually asking for some degree of compromise. These sessions take place about once a month and continue until either the couple reaches an agreement or it becomes obvious such a deal is impossible.
An important characteristic of chōtei is that it is completely voluntary. If a spouse refuses to agree to any of the proposed conditions — or simply does not show up — there is no way of enforcing an agreement. So it is most useful when both spouses are eager to solve the issue but just cannot reach an agreement over it. Once a deal is struck, the court issues a document that states its contents, and which has the same legal effect as a finalized judgment.
One can attend chōtei sessions with or without a lawyer, but in principle a lawyer cannot attend sessions in a client's absence. Mediators are expected to explain the relevant laws and legal systems to both parties, so lawyers are not necessarily needed for this process. In Tokyo Family Court, there may be English-speaking mediators available upon request, but in many other courts, nonnative-level Japanese speakers would need to bring their own translator.
Shinpan literally refers to a specific form of judgment, but the term is commonly used to include the processes leading to that judgment. Unlike litigation, shinpan procedures are not open to public, and the judge has considerable discretion over its processes and rulings. For certain cases without a counterparty (such as a petition to change one's name) or cases that involve determination of kinship (such as child recognition), shinpan is required to conclude the case.
In some other cases, including divorce, one can ask for a shinpan during chōtei arbitration when an agreement seems unlikely but one or both of the parties want to avoid litigation after its failure. One can file for a shinpan without going through chōtei, but the court has the right to refer the case to chōtei at its discretion. If either party is unhappy with the content of a shinpan, he/she can file an objection within two weeks, thus rendering the shinpan null and void. In such a case, the matter would then be resolved in saiban.
Saiban is the most formal and stringent procedure in family court. It involves proving and disproving each other's claims in open court, and in many cases requires the help of a lawyer. Although appeals to higher courts are possible (first to a high court and then the Supreme Court), this is usually the final stage of the legal process. As mentioned earlier, in many cases, including divorce, child recognition, etc., one first has to try chōtei before starting saiban.
All procedures start with the filing of an application at family court. The application must be made to the court that has jurisdiction over the case, so would-be applicants should first consult with a family court nearby to ascertain which court can handle the case.
Going back to our mother's original question, M can consider filing for chōtei mediation, stating in the application that her husband is not paying adequate living expenses considering the disparity between his income and hers. Although the husband's participation would be voluntary, the court will make efforts to ensure he attends, and try to broker a mutual agreement in an amicable manner. If this appears to be impossible, it is then possible to ask for a shinpan ruling.
While filing for a saiban is legally possible, considering the nature of the case, it would be a provocative and aggressive move to make without first exhausting other legal avenues.
Yuichi Kawamoto 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 email@example.com