New Rules on International Jurisdiction of Japanese Courts in Family Matters

Abstract

Most divorces in Japan are based on a mutual agreement of the spouses. If no agreement is possible, a divorce may be reached by mediation or by decision within the procedural frame of the Act on Procedure in Family Matters. If none of these three options is available, a divorce may be achieved, in rare cases, by a judgment in a contentious court proceeding based on the Act on Litigation in Personal Matters. Both laws provide for rules on domestic jurisdiction only and for a long time, no written rule on international jurisdiction over divorce by mediation, decision, or judgment existed in Japan. This situation changed with Law No. 20 of 2018, which introduced new rules on the international jurisdiction of Japanese courts into both laws. The reform came into force on 1 April 2019.

This article provides an outline of the new rules followed by a critical analysis of the provisions on jurisdiction over divorce considering the former case law in which the domicile of the defendant, the matrimonial domicile, and the common nationality, as well as emergency cases and forum non conveniens are discussed. As usual in Japan, the drafters of the Law declared that the new rules are based on the former rulings of Japanese courts. However, the article raises the critique that the former case law on international jurisdiction was ambiguous and contradictory, and some of the cases are questionable in their conclusions.

Normally, the enactment of rules on international jurisdiction is welcome, because it promotes the predictability of decisions on jurisdiction. However, as the author emphasizes, the new rules are likely to result in ambiguity and confusion in future Japanese practice. The analysis is supplemented by a translation of new rules on international jurisdiction of Japanese courts in family matters by the author.

(The Editors)