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2026-09-12
International divorce basics ― which country's law governs the divorce, child removal and the Hague Convention
When one spouse is a foreign national, or lives abroad, a Japanese divorce by agreement (協議離婚) is not always available. This article sets out how the applicable law (準拠法) is determined, whether a Japanese divorce by agreement is recognised abroad (recognition by the other country), the Hague Convention (return of the child) when a child is brought back to Japan without consent, what can be done at Japanese embassies and consulates, and how to find a professional who handles cross-border divorce.
About this translation ― This page is an English translation of an article originally written in Japanese by KuraLab's operator, a licensed real-estate transaction specialist (宅地建物取引士) and administrative scrivener (行政書士) in Japan. The Japanese original is the authoritative text; where the two differ, the Japanese version prevails. The article explains Japanese law and procedure in general terms as of the date shown. It is not legal, tax or immigration advice for your situation ― please confirm with a licensed professional in Japan. Japanese terms are kept in parentheses so you can search for them. Read the Japanese original
"During the summer holidays, I took my child and went home to my parents. I do not intend to go back." A Japanese woman who had been living in Germany came for advice from her parents' home in Japan, together with her 7-year-old child. Her husband is German, and no divorce discussion had begun. She asked, "I am Japanese; I brought my child home to my parents' house in Japan. What is the problem?" There is a problem: the Hague Convention. This article is about the eight months from that summer holiday until the return proceedings were over.
In another article on this site about heirs living abroad or holding foreign nationality, I described the complexity on the inheritance side; divorce has the same kind of complexity. One spouse is a foreign national, or both are Japanese but one lives abroad. This article is about what changes in those cases.
The first thing to be decided is which country's law governs the divorce (the applicable law, 準拠法). Under Japan's Act on General Rules for Application of Laws (法の適用に関する通則法), the order is: if the spouses share the same national law, that law; if not, and they share the same habitual residence (the country they normally live in), that law; failing that, the law of the place with which the spouses are most closely connected. If one spouse is a Japanese national with habitual residence in Japan, Japanese law (including divorce by agreement) applies (the proviso to Article 27 of the Act). In other combinations, if the other country's law does not recognise divorce, or recognises only judicial divorce, matters become more complicated.
How the applicable law is determined: if the spouses' national laws are the same, that national law. If their nationalities differ but their habitual residence is the same, the law of the common habitual residence. If neither coincides, the law of the place most closely connected with the spouses.
Where both are Japanese, or the other spouse has habitual residence in Japan, divorce by agreement can be used as usual. The question is whether that Japanese divorce by agreement is recognised as a "divorce" in the other spouse's country. Many countries recognise a Japanese divorce by agreement filed by notification, but some do not recognise a divorce without court involvement, and a separate procedure in that country (notification to or recognition by a court) may be needed. If the other spouse is a foreign national and there is any future connection with that country (remarriage, inheritance, the child's nationality), do not stop at the Japanese divorce notification; check with that country's embassy or a professional.
Conversely, to reflect a divorce concluded abroad (such as a judicial divorce in the other country) in the Japanese family register, Japan must recognise the effect of the divorce (a judgment by a Japanese court or the Legal Affairs Bureau) and a notification must be made to the municipality (a notification of divorce by foreign method). The documents needed are the foreign court documents or registration certificate proving the divorce, and a Japanese translation.
In an international divorce with children, the most important system is the Hague Convention (the Convention on the Civil Aspects of International Child Abduction). Japan is a contracting state, and where one parent removes a child from the country of residence without the other parent's consent (or fails to return the child after a temporary visit), the left-behind parent can seek the child's return through the Ministry of Foreign Affairs. Even where a Japanese parent brings a child living abroad to Japan intending only to "go home to my parents," from the other country's point of view this can be "abduction" and subject to return proceedings under the Convention. If you are considering separation or divorce across borders, you need to check whether the Convention applies before moving the child. The Ministry of Foreign Affairs has a consultation desk for the Hague Convention.
Let me also note what can be done at Japanese embassies and consulates. A divorce notification by agreement between two Japanese nationals can be submitted to an embassy or consulate even while living abroad, and is forwarded to the municipality in Japan. Where the witnesses are in Japan, signatures can be handled at the embassy or consulate in the same way as the signature certification described in another article on this site about heirs abroad. But negotiation over property division and custody, and procedures in the other country, are outside the scope of embassy and consulate work.
What to check in an international divorce: whether a Japanese divorce by agreement is available, from the combination of the spouses' habitual residence and national laws. Whether it will be recognised in the other country, from that country's divorce system and whether a recognition procedure is needed. To reflect a foreign divorce in the Japanese family register, the divorce certificate with translation and the notification of divorce by foreign method. Before bringing a child back to Japan, whether the Hague Convention applies, by checking with the Ministry of Foreign Affairs.
In order. First, the applicable law. The spouses' national laws differ (Japan and Germany), their habitual residence is the same (Germany), so German law is likely to apply to the divorce. Germany has no divorce by agreement; court proceedings are required. This couple cannot divorce by a Japanese divorce notification alone. Next, the Hague Convention. The child's habitual residence was Germany, and the child was brought to Japan without the husband's consent. If the husband applies for return, a Japanese court (the Tokyo or Osaka Family Court) decides whether to order return, and the rule is "return to the country of habitual residence." Return may be refused only in limited cases, such as where more than a year has passed since the removal and the child has settled in the new environment, or where return would expose the child to grave risk.
Two months later the husband applied for return through the German central authority. The woman engaged a lawyer experienced in cross-border family matters and submitted records of the husband's verbal abuse of the child as grounds for refusing return, but this was not found to reach "grave risk," and the Tokyo Family Court ordered the return. Four months from application to decision. The woman returned to Germany with the child and began divorce and custody proceedings in the German courts (joint custody is the rule in Germany). Of the eight months in Japan, the latter four were spent solely on the return proceedings.
What could have been done if she had sought advice before the summer holiday? One, begin separation and divorce proceedings in Germany first, and move only after obtaining a German court's decision on the child's residence. Two, obtain the husband's written consent before bringing the child to Japan (with consent, it is not "abduction"). Three, consult the Hague Convention Division of Japan's Ministry of Foreign Affairs before moving. I wrote above, "check whether the Convention applies before moving the child," because none of these three was possible except before the summer holiday.
On professionals. Cross-border divorce (international divorce) requires more specialist knowledge than an ordinary divorce: determining the applicable law, the other country's system, whether the Hague Convention applies. It is the territory of lawyers who handle cross-border family cases. An administrative scrivener (行政書士) can prepare notification documents that are completed within Japan, but cannot determine the applicable law or act as agent in dealings with the other country. As soon as you know that the other spouse is a foreign national or lives abroad, I recommend consulting a lawyer experienced in cross-border family matters early.
The answer to "I am Japanese; what is the problem with taking my child home to my parents?" was a return order. The woman returned to Germany eight months later and now lives there with the child under joint custody. The divorce was concluded in a German court the following year. I wrote at the end, "as soon as you know the other spouse is a foreign national or lives abroad, consult a lawyer experienced in cross-border family matters early." "Early" means before you move the child.
Written by: 長澤 湊（licensed real-estate transaction specialist, administrative scrivener, assistant surveyor） Content checked on: 2026-10-14
This article is a general explanation of Japanese rules and procedures, not advice on an individual case. Figures and rules are as of the date shown. For your own situation, consult a lawyer, judicial scrivener, tax accountant or administrative scrivener in Japan.