AWARD OF POST-DIVORCE SPOUSAL SUPPORT IN JAPAN.

Author:de Alcantara, Marcelo
 
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I.THE DECISION TO AWARD SPOUSAL SUPPORT II.THE AMOUNT OF SPOUSAL SUPPORT III.DURATION OF THE AWARD IV.MODIFYING OR TERMINATING THE AWARD V.GOVERNMENT POLICIES IMPACTING THE NEED FOR POST- DIVORCE SUPPORT In Japan, family law matters are governed by the Civil Code (minpo). (1) Although the Japanese Civil Code contains no spousal support provision relating to post-divorce, courts have awarded spousal support to one of the former spouses in certain circumstances. (2) In divorces by mutual consent, the parties may enter into a spousal support agreement with no court involvement. (3)

According to the Japanese Civil Code, a husband and wife shall live together and provide mutual cooperation and assistance during the marriage. (4) In the case of divorce, one party may claim a distribution of marital property from the other party. (5) If the parties do not, or cannot, agree on a settlement with regard to the distribution of marital property, either party may make a claim in the family court within two years from the date of divorce. (6) The family court shall determine whether to make a distribution, and the amount and method of that distribution, taking into account the amount of property obtained through the cooperation of both parties and all other circumstances. (7)

The award of spousal support is considered one of the three elements comprising the marital property distribution system (zaisan bunyo). (8) The concept of marital property distribution encompasses (1) the assessment of the contributions of each spouse to the acquisition of the property (seisanteki zaisan bunyo), (2) spousal support (fuyoteki zaisan bunyo), and (3) compensatory damages (isharyoteki zaisan bunyo)? The family courts comprehensively consider all three elements in determining an equitable distribution, which is essential for the financially disadvantaged spouse. (10) In fact, courts consider spousal support more as supplementary to marital property and compensatory damages, so spousal support is usually awarded after receiving marital property and compensatory damages, when one spouse is still unable to become economically independent and self-sufficient. (11)

  1. THE DECISION TO AWARD SPOUSAL SUPPORT

    The decision to award spousal support is essentially based on the financial needs and abilities of the spouses. (12) For this reason, courts consider the financial resources of the party claiming support or the difficulty to reenter the workforce after a long absence due to age or physical condition in awarding spousal support. (13)

    In one example, in an appeal from a judgment for property division and spousal support, the appeals court refused to award spousal support after considering the financial condition and needs of the wife. (14) The couple married in 1978, when the husband was sixty-six years old and the wife was fifty years old. (15) It was the second marriage for both parties. (16) They both had children and property from the previous marriage. (17) They were married for 15 years before they separated in 1993. (18) The husband was a former principal of several schools and after retiring he became a member of the board of trustees of a school. (19) The sum of his pensions was 5,910,000 yen ($59,100) a year. (20) During the marriage, the wife stayed at home and managed the household finances. (21)

    In 1997, the Yokohama District Court awarded the wife half of the husband's lump-sum retirement allowance (taishokukin) to be paid when he retires from the board of trustees. (22) It also awarded her 3,000,000 yen ($30,000) in compensatory damages for emotional distress (isharyo). (23) Furthermore, the husband was ordered to pay 150.000 yen ($1,500) per month in spousal support until the wife's death. (24) The court noted that the wife had not worked during the marriage and noted that because of her age, at sixty-nine years old, it would be difficult for her to become self-supporting. (25) Additionally, the husband had enough income to pay spousal support. (26) The husband appealed, and in 1998 the Tokyo High Court refused to award spousal support to the wife, but affirmed part of the decision of the lower court pertaining to the compensatory damages and retirement allowance. (27) The appeals court noted that prior to their marriage the wife had owned assets (bank accounts, stocks etc.) worth 20,000,000 yen ($200,000) and the assets remained untouched during the marriage. (28) Also, the wife had in her possession pieces of jewelry worth 15,000,000 yen ($150,000) purchased during the marriage. (29) Consequently, the appeals court found the wife was not in...

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