Der japanische kollisionsrechtliche ordre public im Familienrecht

Anmerkung zum Urteil des Familiengerichts Tōkyō vom 17. Januar 2019

Abstract

Occasioned by a ruling of the Tōkyō Family Court of 31 January 2019 regarding a divorce by talāq under the applicable Myanmar Islamic law and the broader consequences of divorce, this article aims to outline the doctrine surrounding the public policy provision in Japanese conflict of laws, Art. 42 of the Act on General Rules for Application of Laws (AGRAL), and to relate the ruling to them. The doctrine around the public policy provision shows strong similarities to German law. This similarity results from the fact that both Japan and Germany follow the system of conflicts of laws established by Savigny, in which the respective public policy clauses hold the same functions. The application of Art. 42 AGRAL requires that the result of the application of foreign law be contrary to public policy and that the case be sufficiently connected to Japan. The requirements are interrelated: the greater the fulfilment of the first requirement, the lower the necessity that the second be fulfilled and vice versa. The consequence of the application of Art. 42 AGRAL is the preclusion of the application of the lex causae. The courts usually assume that this leads to the creation of a legal lacunae to be filled by Japanese law as the lex fori. The 31 January 2019 ruling of the Family Court of Tōkyō fits this system. The court held a divorce by talāq, among Muslim citizens of Myanmar, conducted in Japan, against the will of the wife, and under applicable Myanmar Islamic law, to be contrary to public policy. By applying the public policy provision, the court declared the divorce void under Japanese law. With a view to the interests of the parties and applying statutory law of Myanmar, the court granted a divorce. This was possible because the court deemed the question of the validity of the divorce by talāq to be merely a preliminary question, whereas it considered the plaintiff’s demand as one for a “de novo divorce”. The court also applied Art. 42 AGRAL on the matter of determining the custody of the son of plaintiff and defendant, which under Myanmar Islamic law would have been awarded to the father, and on a claim regarding compensation for mental suffering related to the divorce, which under applicable Myanmar Islamic law would not have existed. In all of these questions, the court did not make any reference to the doctrine surrounding Art. 42 AGRAL but instead limited itself to maintaining, in a rather axiomatic manner, that in the results of the application of Myanmar Islamic law lay a violation of public policy. Only in the question of custody did the court somewhat substantiate the contents of public policy by naming the child’s well-being as a criterion for consideration. Although it almost certainly would also have been possible to justify the ruling by closely referring to the relevant doctrine, that the court did not do so poses the interesting question of how flexible the courts are in handling the public policy provision. Further examination of this question is called for. The ruling is also the first issued by a Japanese court regarding divorce by talāq. While it is trailblazing to establish that such a divorce against the will of the wife constitutes a violation of public policy, the Ministry of Justice seems to tend towards recognizing divorces by talāq provided that they are conducted with the consent of the wife. Hence, viewed together, an image emerges of divorce by talāq receiving quite similar treatment in Japan and Germany.