Legal Handbook 2006

AFWJ Legal Mini Handbook

Information Handbook

Table of Contents A Note to the Reader ......................................................................................5 Introduction: Looking at Legal Issues .............................................................6 Chapter 1: Immigration/Municipal Offices Family Registration (Wandalee Kabira) ..........................................................8 Spouse Residence Status (Wandalee Kabira) .............................................10 Alien Registration Card (Wandalee Kabira) .................................................11 Lost Passport—Re-entry into Japan (Wandalee Kabira)..............................13 Japanese Citizens' Residence Certificate (Wandalee Kabira) .....................15 Change of Status of Residence in Case of Divorce or Bereavement (Wandalee Kabira) ........................................................................................17 Re-entry Permits (Wandalee Kabira) ............................................................18 Permanent Residence (Wandalee Kabira) ...................................................19 Dual Nationality and Loss of US Citizenship (Wandalee Kabira) .................20 Seal Registration/Seal Registration Certificate (Wandalee Kabira)..............21 Foreign Spouses’ Use of Surname (Wandalee Kabira) ................................22 Disclosure of Your Files at Municipal Offices (Wandalee Kabira) .................23 Proof of Marriage/Birth/Other Documents (Wandalee Kabira) .....................23 Pen Name (kanji/katakana) on Alien Registration Cards (Wandalee Kabira)23 Chapter 2: Marriage and Divorce Marriage in Japan (Diane Watanabe)...........................................................25 Divorce in Japan (Diane Watanabe) .............................................................27 Partner/Spouse Violence (Gloria Ishida Bauer)............................................30 Avoidance of Fraudulent Divorce (Wandalee Kabira) ..................................34 An Ending and A Beginning (MN) .................................................................35 Chapter 3: Children Birth Registration with the Japanese Authorities (Diane Watanabe) ............39 Registration of Birth of a Japanese Child Born Overseas (Wandalee Kabira) .

41 Documents and Procedures for Acquiring a Passport for a Japanese Child Born Overseas (Wandalee Kabira) .......................................................................43 British Birth Registration and Passport Requirements (Diane Watanabe) ...44 Establishing US Citizenship for a Child Born Outside US Territories (Wandalee Kabira) ..........................................................................................................45 How to Apply for a Canadian Passport—Child (Monica Rankin) ..................47 Applying for Canadian Citizenship for a Child Born in Japan (Monica Rankin)48 How to Apply for a Mother and Child Handbook and Lump-Sum Payment (Diane Watanabe) ........................................................................................49 Dual Nationality/Choice of Nationality (Wandalee Kabira) ...........................50

Chapter 4: Legal, Illegal, and Useful Guidance for Foreign Nationals Arrested in Japan (Diane Watanabe).........53 Neighborhood Associations—Local Self-Government (Wandalee Kabira)...58 Chapter 5: Wills, Death, and Inheritance Matters of Inheritance in Japan (Wandalee Kabira) .....................................60 Making a Will in Japan: Planning for Your Future (Wandalee Kabira) ..........64 Making and Filing a Will (Tamah Nakamura) ...............................................68 Appendices: Useful Documents/References Appendix A: Spouse of Japanese National Visa Status Requirements ........70 Appendix B: Change/Extension of Spouse of Japanese National Requirements ...............................................................................................74 Appendix C: Change to Long-term Resident Status ....................................76 Appendix D: Change to Permanent Resident Status ...................................79

Copyright Š 2006 by the Association of Foreign Wives of Japanese, except for articles with a Š.

In this case, the author retains the copyright. All rights reserved.

No part of this publication may be utilized, reproduced, or transmitted in any form or by any electronic or mechanical means, now known or hereafter invented, including scanning, photocopying, recording, information storage and retrieval systems, without permission in writing from AFWJ and the relevant author, except by a reviewer, who may quote brief passages in a review.

The AFWJ Mini Legal Handbook Team Project Head

Wendy Jonas Imura

Contributors

Wandalee Kabira Gloria Ishida Bauer Diane Watanabe Monica Rankin MN

Content Proofreader Book Setting

Nancy Kobayashi Annerose Matsushita-Bader

Final Proofreader

Many thanks for your precious help !

Julie Kuma

Introduction

A Note to the Reader Please read this before referring to any of the information in this Handbook.

The information contained in this Handbook is intended to be used as a guide only. In compiling this Handbook, all care has been taken to ensure that the information in each article is accurate. However, situations and laws change, different procedures may be followed by different branch offices, and so on. Therefore, you are adviced to contact the relevant authority or seek further advice before relying on any of the advice in this Handbook.

The Association of Foreign Wives of Japanese and the members of the Legal Issues Handbook Working Committee will not be held responsible for any inconvenience or loss suffered by members who rely on any of the information contained in this Handbook.

Members who become aware of outdated and/or mistaken information listed in the Handbook should contact the Legal Issues Handbook Working Committee Chair, Wendy Jonas Imura (wkjonas@hotmail.com or Tel: 072-664-3675), to report the discrepancy. All efforts will be made to update online and/or PDF versions of the Mini-Handbook and Handbook as soon as possible.

NOTE: In this Handbook, the term “municipal office” is used to indicate the Japanese administrative units of city (shi), ward (ku), town (cho), and village (son).

AFWJ Legal Mini Handbook

5

Introduction

Introduction: Looking at Legal Issues © (Adapted from For Beautiful Lawful Life: AFWJ Information Handbook) How shall one consider legal matters in this Handbook, and in general as a foreigner in Japan? First, through this AFWJ Information Handbook (and Mini-Handbook) you will find disclaimers which urge the reader to consider the information merely as a general guide. If there are exceptions and variations, why have a book of general information? It is our contention that variations can best be understood if one knows the general rules in which the government and the society operate.

You may then come to understand the framework in Japan in which things are not exactly illegal but cannot be done, and also in which things may not be strictly by the rule but are nevertheless permitted in a specific case.

Next, consider that Japanese feel insecure about written rules which allow little room for compromise, and which, therefore, do not easily allow for adjustments when circumstances change. Life being what it is, circumstances always do change.

Rather than imposing an ‘ideal’ social order, the law is viewed as adaptable to the great variety of people and of circumstances as they actually exist.

This viewpoint has both negative and positive results for individuals, just as more rigid rules have.

Lastly, living successfully as a bicultural person in Japan involves, of course, much more than an awareness of laws and regulations as gained from this Handbook (although we hope it is a great help). One needs a clear recognition of the positive points that drew one to live here, and then a commitment to help build and maintain these positive factors in personal, family, and community life.

When one recognizes that some conflicts and problems in life are inevitable, and applies a little extra common sense and extra patience while maintaining a tolerance for diversity and a sense of humor, one’s problems as a foreigner may in some cases be minimized with more positive experiences in bicultural life. ©

Thirdly, remember that Western people may often use the terms “people’s rights,” while Japanese are said to put a somewhat different connotation on the word “rights.” There was no Japanese word for the Western concept of rights—which make it acceptable for a person to demand that others conform to his or her interests—until the Dutch word recht was translated into kenri. In Japan, a person who insists on demanding his or her “rights” may be considered a troublemaker. Disputes are expected to be settled by compromise without the strain of identifying the wrongdoer.

The emphasis is placed on mediation. While Japan is slowly becoming a more legal and, indeed, litigious society, these cultural attitudes are deeply rooted and strongly held.

6

AFWJ Legal Mini Handbook

Chapter 1: Immigration/Municipal OfďŹ ces

Chapter 1 Immigration/Municipal Offices

AFWJ Legal Mini Handbook

7

Chapter 1: Immigration/Municipal Offices

Family Registration (Koseki) Wandalee Kabira © 2005

(Credit is given here to Cecilia Saito, Lucinda Otsuka, and Cristina Tashiro for information about family registration issues.)

ly register—koseki—is now a record of a Japanese citizen’s identity and verifies that he/she is/was a Japanese national.

The family register (koseki) is an official document containing important information about a household, which can consist of a married couple, or a married couple and their unmarried children (natural or adopted) with the same surname, or an individual with unmarried children with the same surname, or an individual. Every Japanese national is listed in a koseki, giving proof of his/her legal status. The register contains the names, dates of birth/death, adoption, divorce, reasons for entry into or exclusion from the koseki (birth, marriage, adoption, divorce), and the names of the mother and father of each household member. The first person listed on the koseki is called the hittosha (householder). The spouse (wife/husband) is then listed, and the children are listed in order of birth. The koseki is made/kept in the municipal office of the Japanese national, starting from birth and continuing with marriage, or divorce, adoption, or dissolution of adoption, and ending with death.

Each Japanese national has a permanent domicile (honsekichi) in a municipal office where his/ her complete family register was/is filed, and the permanent domicile can be moved to a municipal office in a new location of residence. The original family register is kept in the honsekichi municipal office, and a duplicate is sent to the regional office of the Ministry of Justice for safekeeping in case a disaster destroys the original.

China and Korea also have systems of family registration. In Japan, as early as the sixth century, a kind of koseki system was used to further government control, and was also used in the land distribution system. However, this system ceased by the end of the Heian period with the rise of private landed estates, and was later reinstated in the Edo period when the shogunate ordered the domains to compile household registers. These then became the basis for the nationwide koseki system of the Meiji period. A Koseki Ho (Family Register Law) system was established in 1871, and officially implemented in 1872. The family head was then responsible for the welfare of the family. The system underwent some changes in 1948 when the ie (feudal household) system was officially abolished, and with that change the Koseki Ho placed more emphasis on the individual. In essence, the fami8

When a Japanese national marries, a new family register is made in the name of the Japanese national, listing, usually, the Japanese husband as the hittosha, and the Japanese wife’s name is listed in the section designated for Japanese wife. When a Japanese enters a new koseki, his/her name is struck from the former koseki with a line drawn through the name.

When a Japanese national marries a foreigner, a new family register is made in the name of the Japanese spouse with him/her listed as the hittosha.

A Japanese woman married to a foreigner will be the hittosha and has the option of taking the foreign spouse’s name, if so desired, and this must be decided upon and recorded within a limited period of time. The name of the foreign spouse, birth date, citizenship, place and date the marriage was registered are all entered in the description (bikou) section in the upper part of the family register document. The foreign wife’s name is not listed in the section where a Japanese wife’s name would be listed. This space remains blank since that box is designated for Japanese nationals. However, the information in the koseki’s description section will verify the legal status of the foreigner as the legal spouse of a Japanese national.

In the case of children born to a Japanese spouse and a foreign spouse, the name of the foreign mother/father is recorded in the koseki in the corAFWJ Legal Mini Handbook

Chapter 1: Immigration/Municipal Offices

rect box for listing the mother’s or father’s name.

This is proof of parentage of the child. If the foreign wife/mother of the child has not had her surname changed to the kanji surname of her Japanese husband, then she is listed under her former surname in the section box for mother.

Upon request, a family register can be transferred to another municipal office when the Japanese hittosha applies to have his/her permanent domicile moved to his/her new place of residence. Then the koseki can be issued from this new honsekichi, and this location may be more convenient for the family. However, some Japanese maintain a sense of loyalty to their “home town” (furusato) and resist moving the family register to a new place of residence.

Since the family register is a vital record of a Japanese national, all facts about an individual, even things one might wish not be recorded, such as the number of marriages and divorces, are duly recorded, even if one divorces and remarries the same person. Therefore, note that only the last entries, occurring after the koseki’s move to the new permanent domicile in a different place of residence, are recorded in the transferred family register, no matter how many times that person may have married and divorced prior to moving the family register. Thus only a new marriage that occurred after moving the koseki to this new honsekichi is recorded in a koseki requested now from the new location. Please note that for a Japanese national, it is advisable also to have a copy of the original family register if the spouse has moved his/her permanent domicile to a different municipal office. The place of origin and the date of the family register‘s move from the original permanent domicile to a different permanent domicile municipal office are recorded on the current family register. One may request a copy of the original family register at the current municipal office by filling out a request form and paying a small fee.

birth, marriage, divorce, and/or death of members of the immediate family recorded. Another document with only excerpted information of a single individual in the family is called a koseki shohon. A copy of the family register can be obtained upon payment of a nominal fee. For a small fee, one may obtain a copy of the koseki of the Japanese spouse’s deceased family member. This is called a joseki.

For official uses, copies of the koseki are valid for only three months, and fresh copies are available for a nominal fee. When the koseki is kept in a distant municipal office, copies may be ordered by mail. Consult your local municipal office for help with this.

With the recent (April 2005) passage of the Personal Information and Privacy Act in Japan, Japanese municipal offices have become much stricter about who is allowed to access the family register. While a national policy is still in the works, many localities now require an “ininjyo” or proxy letter showing written approval from the person in question (or a person listed on the register) in order to receive a copy of someone’s family register or access information on it. A national law/policy governing access to information on the family register is also being prepared.

The original family register will remain in the municipal office of the original honsekichi and will be kept for 80 years after the death of the individuals listed in the register.

There are two forms of copies available: the detailed document called koseki tohon, with information of the names (husband/wife/children), and AFWJ Legal Mini Handbook

9

Chapter 1: Immigration/Municipal Offices

Spouse Residence Status Wandalee Kabira © 2005

Receiving residence status in Japan of Spouse or Child of Japanese National (Nihonjin no haigusha to status) may seem an arbitrary process at times, but generally for a Japanese/foreign couple who have married in Japan, the foreign spouse will first be granted a one-year period of stay and perhaps the same period of stay for another one or two times. Perhaps after three years of marriage and living here, a three-year period of stay may be granted. There will be exceptions to this description. Remember—case by case.

When a Japanese and a foreigner marry abroad and apply for a spouse visa at a Japanese consulate, the foreign spouse is generally granted a oneyear visa and then a one-year period of stay at the airport upon entry to Japan, or if they have been married for a long period of time, the foreign spouse may be granted a three-year visa and period of stay. The length of the marriage; ages of the couple; the presence of children; stability of livelihood; no overstay periods by the foreign spouse; no incorrect, incomplete, or overdue applications; and no periods of spousal separation are factors which may affect the decision of the immigration officers. The officer does not decide the period of stay in your passport on his whim. Two foreign spouses of Japanese may receive different results from their applications. If all factors are the same, then the same results may occur, but seldom are all factors in human life exactly the same for any two couples.

not take varied situations into consideration. In Japan, the guiding principle is that it may be impossible to make rules that fit all situations.

There may also be some variation of interpretations of the regulations from area to area in Japan.

Therefore, it is necessary to regard this information handbook as a general guide and always consult your local immigration office.

Please refer to Appendix A for a list of current requirements for obtaining a Spouse of Japanese National status; Appendix B for a change to or an extension of a Spouse of Japanese National status; Appendix C for a change to a long term residence status from a Spouse of Japanese National status; and Appendix D for a change to permanent residence status.

Situations which fall into “gray areas” are subject to the discretion of the officer in charge, but this discretion is based on factors and regulations which the Immigration Bureau has decided are relevant. The “discretion” of the Japanese immigration offices may work in a positive way for the foreign spouse. The positive aspect of “case by case” is that the officer is able to grant permission in cases which do not exactly fit all the stated requirements. In some countries, “hard and fast” rules do

10

AFWJ Legal Mini Handbook

Chapter 1: Immigration/Municipal Offices

Alien Registration Card (Gaikokujin Torokusho) Wandalee Kabira © 2005 Initial Application for Alien Registration and Renewal If a foreigner is staying in Japan for 90 days or more, he/she must register, in person, at the municipal office in the area of jurisdiction of his/her residence. The required items are: passport, two photos (3/5cm wide by 4/5cm long, not required for those under 16 years of age). A temporary I.D. card will be issued, and the Alien Registration Card must then be collected about two weeks later in person or by a family member residing at the same address.

By law, when one is outside one’s home, the card must be carried at all times, with the exception of those under the age of 16.

The Alien Registration Card expires on the fifth birthday following the date of issue, and application for renewal (kakunin, kirikae) must be made within 30 days after the expiration date on the card. Photos will be required.

Confirmation/proof of Alien Registration Foreign spouses may obtain a Confirmation/proof of Alien Registration (gaikokujin toroku kisai jiko shomeisho) from their local municipal office for a small fee. Information recorded on such a proof of registration may include, for example, such items as: name, nationality, sex, birth date, alien registration number, present address and previous addresses, householder husband’s name, visa status, date of entrance into Japan, birth place and permanent domicile in home country.

On the application form for a Confirmation/proof of Alien Registration, it is necessary to check one of the eight choices in the box for purpose of asking for the confirmation certificate. The official will ask concerning your purpose in order to know which of the forms available should be provided to you. The forms depend on the purpose of usage.

For example, a Confirmation/proof of Alien RegAFWJ Legal Mini Handbook

istration to be used in applying for a passport or naturalization would contain complete information; one used in applying for a driver’s license will be a simplified certificate and one used for selling a vehicle might require the prior address for the vehicle registration. Therefore, the official is not making an unreasonable inquiry into your private business by asking the purpose of your applying for a confirmation of your alien registration.

The choices to check include: license (menkyo), request for permission to have non-Japanese family members visit Japan (kazoku no rainichi), passport (ryoken), naturalization (kika), registration of property/land/car (touki), entering into koseki/ marriage/birth/adoption (nyuseki), school matters (gakko), employment (shushoku), and other reasons (sonota) must be filled in by the applicant.

Lost or Stolen Alien Registration Card You must first report any loss or theft of your Alien Registration Card immediately to the local police station and receive a police notification, and that must be shown at the municipal office within 14 days of the loss/theft for a re-issuance (saikofu) of your Alien Registration Card. If your Alien Registration Card becomes worn or soiled or damaged or if corrections need to be made to your name, nationality, date of birth/sex, you must apply for replacement of the card (hikikae, kofu). Photos will be required in these cases.

Changes of Information Changes of address and changes in status of residence and extension of period of stay must be reported within 14 days to the new municipal office and the changes will be noted on the back of the card. (Please inquire at your municipal office whether reports of matters of occupation, name and address of places of work, work contract, are required for those with your status in Japan.)

11

Chapter 1: Immigration/Municipal OfďŹ ces

Other changes such as new passport number, issue date of passport, address in home country, name of head of household, or relationship to head of household may be reported at time of renewal or whenever a change in another matter regarding alien registration is made.

Leaving Japan or Death of Foreigner When leaving Japan, unless you have a valid Reentry Permit, your Alien Registration Card must be returned at the airport or port of departure.

When a foreigner dies, the card must be returned to the municipal oďŹƒce within 14 days. When acquiring Japanese nationality, the card must be returned in person to the municipal oďŹƒce within 14 days (in some areas within 60 days).

Name Included in Kanji on Alien Registration Card If you wish to have your name in kanji/katakana as well as in Roman alphabet on your card, it is necessary to apply for a change (henko no toroku).

The name in kanji/katakana must be the same as the name recorded in alphabet in your passport.

For example, the name Emily Watanabe in your passport in alphabet could be written Watanabe in kanji and Emily in katakana in your card under your alphabet name at the top of the card. Your name registered in kanji/katakana on the card is called a tsushomei, a kind of pen name or alias.

12

AFWJ Legal Mini Handbook

Chapter 1: Immigration/Municipal Offices

Lost Passport—Re-entry into Japan Wandalee Kabira © 2005 In some unlucky moment while you are travelling outside Japan, your passport is lost or stolen, and it contains your re-entry stamp back into Japan; also perhaps your Alien Registration Card (A.R.) is gone. Without a passport, you cannot leave the country where you are now, and if you enter Japan without a re-entry stamp in a new passport, you will lose your resident status in Japan. Such loss could happen to anyone, but there are good ways to deal successfully in such cases. The first step is to believe and practice the maxim that “prevention is better than cure.”

Pre-Trip Preparation Is The Most Important Part: 1. Prepare two copies of the first two pages of your passport, the page with your resident status stamp, and the page with your re-entry stamp. Prepare two copies of your Alien Registration Card and if there are details on the back of the card, make copies of that also.

2. Prepare two passport photos.

3. As you travel, keep one of each of the copies mentioned in No. 1 in a safe place in your hotel room or residence abroad. Keep with these papers the two valid passport photos.

4. If there is a member of your family who lives at your address in Japan and who is not travelling with you, give him/her one copy of everything listed in No. 1 above.

5. If you are without a family member present in Japan as you travel, give a copy of everything listed in No. 1 above to someone to act as your trusted representative in Japan while you are absent, and then also give him/her two copies of your ininjo. An ininjo is a “power of attorney” paper authorizing someone to act on your behalf, in this case at your municipal/ward office and your immigration office. The ininjo must be written by you, and signed and sealed by you. Have an exAFWJ Legal Mini Handbook

tra copy of your ininjo in your suitcase; so, if necessary, you could fax it to your representative.

A sample copy of an ininjo can be downloaded from many city government websites, including: www.city.susono.shizuoka.jp/download/1114/ininjyou.doc (available as an MS Word file). Make and keep a copy of it to use when you travel.

Procedures to Follow If Passport/A.R. are Lost or Stolen When You Travel Abroad 1. Immediately report the loss or theft of passport and/or A.R. to the nearest police authority. It is absolutely necessary to have a police report of the theft or loss. It may be advisable to get extra copies of this report. In cases of theft, some travel insurance companies may reimburse you for the “loss of goods” and that may include the cost of re-issuance of the new passport. Some offices may return the police report after inspecting it.

2. Immediately apply for a new passport at your embassy overseas or passport authority in your home country with the help of the copy you made of your old passport pages, the two passport size photos, and some identification. (A driver’s license from your home country or a social security card may be requested.) Use any possible procedures for emergency issuance of a passport.

3. Immediately call your family member or representative in Japan and, if there is time before your intended return time to Japan, by registered mail send one copy of the police report to him/her for use in obtaining your alien registration confirmation certificate (toroku kisai jiko shomeisho) from your municipal/ward office and your Re-entry Permit (sainyukoku) from your immigration office. If there is no time for your representative or family member to receive this report by mail and to follow the necessary procedures before your return flight, then fax the police report to him/her.

Japanese offices may vary concerning the acceptance of faxed reports but in some cases it has been 13

Chapter 1: Immigration/Municipal Offices

allowed. Your family member/representative will also have those copies of your passport/A.R. information which you gave them.

4. Next, ask your family member or representative to go immediately to your municipal/ward office and request two copies of the confirmation of your Alien Registration Certificate (Gaikokujin toroku kisai jiko shomeisho) There he/she can show copies of your passport/A.R. and the police report, file an application for this certificate, and answer such questions as his/her relationship to you, the reason he/she is representing you, the purpose for which the document will be used, the fact that the family member is living with you, and usually the family member’s juminhyo (residence certificate) or some ID will be required. A representative also would be asked to present some ID (juminhyo) and the copy of your ininjo with the application.

document which you can then show with your new passport at the time of your arrival in Japan.

Upon your entry into Japan, the immigration officer may then place an arrival stamp into your new passport and tell you to appear at your local immigration office to have your resident status stamp and a re-entry entered into your new passport. Then you should report your new passport number to your local municipal/ward office.

In case your A.R. was stolen or lost, then with that police report, apply for a new A.R. May you NEVER be in this situation, but you CAN be prepared.

5. Next, the family member or representative with the power of attorney (ininjo) must take the newly issued A.R. confirmation certificate and the police report to your immigration office and apply for your re-entry permit to be stamped on the A.R. confirmation certificate. The old passport copy and A.R. copy you gave to your family member or representative may be useful at this time.

Next, the family member or representative must ask the immigration officer about the procedures to follow to ensure you can properly enter Japan.

In some cases, your family member or representative is told to send by registered mail this A.R. confirmation certificate with the re-entry stamp on it to you abroad (if time allows) and then you submit it to the airport/seaport immigration officer with your new passport when entering Japan.

Since offices may vary slightly on the procedures, follow the directions from that immigration office.

In some emergency cases, the local immigration office may allow the family member/representative to take or send the re-entry stamped A.R. confirmation certificate and written information of your airline, flight number, date, and time of arrival to the airport/seaport immigration office where you will enter Japan. In this case, the family member or representative should first fax to you a copy of the A.R. confirmation/re-entry stamped 14

AFWJ Legal Mini Handbook

Chapter 1: Immigration/Municipal Offices

Japanese Citizens' Residence Certificate (Juminhyo) Wandalee Kabira © 2005 A juminhyo is a residence certificate for Japanese nationals which verifies a Japanese citizen’s name, address, birth date, and family composition. Japanese nationals register their current place of residence at their local municipal office or ward office, which then, upon request, will issue a residence certificate upon payment of a small fee. In principle, the juminhyo and the Japanese family register (koseki) are in general open to the public, and the local municipal/ward office is obliged to provide these documents if there is no valid reason to refuse. The correct name, address, birth date must be filed on application or the office may refuse the request.

Foreign residents who reside in Japan for more than 90 days must register at their local municipal/ward office and receive an Alien Registration Card (gaikokujin torokusho), hereafter referred to as the A.R., which must then be carried on their person at all times when in public.

Japanese citizens are not required to carry their residence certificate in public at all times, but when it is required by custom and/or regulation, they may obtain a copy from their local municipal/ ward office. (Many Japanese do carry some form of identification from employers or from schools or on business cards, etc. which is a good idea in an earthquake-prone country.) For example, for Japanese a residence certificate (juminhyo) or for foreigners a confirmation/proof of A.R. (gaikokujin toroku kisai jiko shomeisho) is usually required for such things as one’s own or one’s children’s entrance into school or change of school; for passport issuance; for obtaining a car or motorbike license; for purchase of car, house, or land; perhaps for opening a bank account; for obtaining a credit card or loan; for marriage or divorce; for collecting insurance; in some cases for foreigner’s change/extension of status; and in most cases, upon application for employment, etc. These are some of the situations that may require a residence certificate from either a Japanese or a foreign national.

AFWJ Legal Mini Handbook

There are two choices on the application form for a copy of a juminhyo: one is to request the information of one Japanese family member (ichibu no utsushi), and the second choice is to request information of all the Japanese family members (zenin no utsushi) residing at the same address. It is also necessary to check on the application form one or both of the following: permanent domicile (honseki) or family relationship (tsuzukigara/zokugara) so that the proper information will be placed on the juminhyo copy. For official use, it is advisable to check both choices.

The following two paragraphs are based on articles by Cristina Tashiro and Lucinda Otsuka in the October 1995, December 1996 and February 1997 issues of the Association of Foreign Wives Journal and from other articles by Lucinda Otsuka: The Juminhyo Kihon Daichoho Dai 39 Jyou (Clause 39 of the Resident Basic Register Law) states that non-Japanese are excluded from being listed on the residence certificate (juminhyo) of a Japanese national. (Foreigners’ proof of registration is their confirmation of alien registration— toroku kisai jiko shomeisho.) However, a notification passed by Jichisho—Ministry of Home Affairs (at present called Somusho—Ministry of Internal Affairs and Communications) in 1967 gave a non-Japanese head of household the right to be listed in the remarks section (bikouran) of his/her Japanese spouse’s juminhyo. Thus, in the space for remarks, a foreign spouse who qualifies as head of household (setainushi), usually but not always for financial reasons, may be listed in the Japanese spouse’s juminhyo. A listing in the bikouran or anywhere outside the main column requires no law to be changed, as this decision is left to the head of each municipal office to enact the change if the head official sees a necessity to do so in carrying out administrative tasks. No notification has been issued by the Ministry of Home Affairs that a non-Japanese dependent spouse may be listed in the remarks section as they did issue a statement 15

Chapter 1: Immigration/Municipal Offices

in 1967 that a non-Japanese head of household may be listed in the bikouran. Thus, some municipal/ward offices may refuse to list non-Japanese dependent spouses’ names in the bikouran of Japanese spouses’ juminhyo.

However, in addition to the matter of a foreigner as head of household, at the present time some local government offices are upon request including the name of the non-Japanese dependent spouse in the remarks section of the Japanese spouse’s juminhyo. For example, the Kumomoto City Gyosei Kansatsu Jimusho (Administrative Inspection Bureau) has stated that there is no law or ordinance prohibiting the listing of a non-Japanese dependent spouse in the bikouran, and the Ministry of Home Affairs has indicated that there is no objection to entering the non-Japanese dependent spouse in the bikouran, and that this decision will be left up to each local government office on the condition that it sees a necessity to do so in carrying out administrative tasks.

The name of a non-Japanese spouse cannot be entered into the computerized listing of a Japanese person’s juminhyo since foreign spouses’ names are always placed in the remarks section, but as stated above, in some locations the municipal/ward office will, upon each request, place a foreign spouse’s name into the bikouran section of a juminhyo certificate. It is advisable for a non-Japanese spouse to ask the foreign residents’ section of his/her local municipal office for the local system of application and procedure in order to have a foreign spouse’s name placed upon request in the bikouran section of the Japanese spouse’s juminhyo.

How may a foreign spouse deal with situations that require a Japanese spouse’s juminhyo on occasions when it is necessary to show that both the foreign spouse and Japanese spouse reside at the same address or to prove the relationships in the family? It may be best to obtain a copy of the Japanese spouse’s juminhyo with the foreign spouse’s name placed, if possible, in the remarks (bikouran) section and a copy of the foreign spouse’s confirmation/proof of Alien Registration (toroku kisai jiko shomeisho) and present them together. (In some cases, showing a recent copy of the Japanese spouses’s family register (koseki tohon) may be helpful to identify, if necessary, the foreign spouse as spouse and parent.

16

It is helpful to remember that officials who have little or no experience with these kinds of situations may be puzzled about what procedures to follow in these cases. It is not necessarily a situation of prejudice or discrimination, but in these unexpected cases (outside the usual office procedures) involving foreign spouses, officials may become reluctant to proceed for fear of causing mistakes which will then require much deliberation, consultation, and perhaps correction on their part.

Remember also that local government officials do not create regulations or policies and cannot be expected to satisfy a foreigner’s desire to have the privileges of citizenship but not take citizenship. Please remember also that officials are rotated among sections of the government offices, and thus may not be familiar with all regulations. Patient and non-confrontational approaches in which a foreigner politely asks for help and guidance and in which the official is not accused or made to lose face may help to bring positive results in these issues involving foreign spouses.

If you as a foreign spouse face a situation where a mistake is made about your status as spouse or parent or some trouble occurs in your daily life because you are not listed on your Japanese spouse’s juminhyo, you may take that opportunity to inform the other person of the juminhyo and alien registration regulations, and with a relaxed and courteous approach bring about a greater understanding among officials and general citizenry about foreign spouses’ situations in Japan. It is quite understandable that there will be separate lists of citizens and non-citizens in any country.

AFWJ Legal Mini Handbook

Chapter 1: Immigration/Municipal Offices

Change of Status of Residence in Case of Divorce or Bereavement Wandalee Kabira © 2005 Please regard the following legal information as a general guide and always consult your district immigration office for local procedures in your change of status situation. Remember, “it’s case by case.”

Although there may be some time remaining on the valid period of stay on your Spouse-of-Japanese National status (Nihonjin no haigushato), it is generally advisable to contact your local immigration office as soon as possible (within one month) of being divorced or widowed in order to apply for a change of status if you wish to remain living in Japan. Most immigration officers say that this shows real intent to stay here, and they may be better able to help a foreign spouse who reports the new situation and asks for help to stay in Japan.

It is important to know that if a foreign spouse has permanent residence status (eijuken), a divorce from a Japanese spouse or the death of the spouse will not affect the retention of the permanent residence status. If the foreign spouse does not have permanent resident status, he/she generally will not be granted permanent residence status after the divorce or bereavement. However, for those foreigners with a spouse visa who have lived in Japan for many years or who have Japanese citizen children, it may be possible to apply to change to “long term” residence status after a divorce or bereavement, but other qualifications would apply.

Think here, “case by case.”

If spouse status expires during divorce, separation, or inheritance proceedings, the foreign spouse may write a letter of explanation, bring documents from the court or lawyer to show that such matters are underway and ask the immigration office for the proper procedure. In some cases, an extension may be granted; however, in most cases, a change of status will be advised.

In cases where a foreign spouse will definitely leave Japan immediately after proceedings of divorce or bereavement are finalized and the period of stay is AFWJ Legal Mini Handbook

expiring while proceedings are underway, the immigration office may ask the foreign spouse to apply for a change of status to temporary visitor status, and it may be renewed generally until his/her affairs are finalized. Temporary visitor status may not be advisable if he/she needs to maintain a job for financial support until leaving Japan. One cannot work to earn money in Japan on temporary visitor status.

A childless foreign spouse who wishes to remain living in Japan and who has the proper employment qualifications may generally apply for a change of status to regular work status (shuro status) of residence. In some cases, the childless spouse who has been married to a Japanese for many years and who has financial stability may apply for the long term residence status (teiju status) which requires a guarantor (hoshonin).

A foreign spouse with child/children who are Japanese citizens and who wishes to remain living in Japan after being divorced or widowed may generally apply for a change of status to long term residence (teiju status of one or three years). Please note that in these cases, the long term residence status would apply to the foreign spouse who has custody (parental authority) of any child/children the spouse is actually living with and who is caring for the child/children born between the foreign spouse and the Japanese spouse. The immigration office may accept such an application for long term residence status if the foreign spouse can supply a letter of explanation, documents to show relationship (such as koseki tohon, divorce documents showing custody of child/children, or death certificate of Japanese spouse, etc.), documents of financial support (employment certificate, bank account, income tax papers, salary statements, etc.), and a guarantor’s documents such as employment certificate, income tax certificates, and certificate of residence. The guarantor’s letter of guarantee is no longer required.

Please consult Appendix C for the list of necessary documentation.

17

Chapter 1: Immigration/Municipal Offices

Re-Entry Permits (Sainyukoku Kyoka) Wandalee Kabira © 2005 A Re-entry Permit (sainyukoku kyoka) allows legal foreign residents in Japan to return to Japan after a period of absence without additional visa and resident status processing. Before any temporary departure from Japan, a Re-entry Permit must be entered in one’s passport at one’s local immigration office.

Re-entry Permits cannot be issued at the airport or at an immigration office outside the immigration jurisdiction area of one’s address in Japan as shown on one’s Alien Registration Card. That means your local immigration office. This includes those foreigners with permanent residence in Japan. Those who fail to have a valid Re-entry Permit in the passport must surrender their Alien Registration Card to immigration officers at the port of departure. In such cases, the alien registration automatically becomes invalid.

Those foreigners who leave without a re-entry stamp in their passport and who then try to re-enter Japan will find that their status of residence to live in Japan has also become invalid, and thus to live again in Japan, they must re-apply for the certificate of eligibility for a new visa. This may take from one to three months to process. In the interval, the foreigner must either be granted a temporary visitor status to stay in Japan for a limited time or leave from the airport to another country. After the certificate of eligibility is granted, the foreigner must then obtain a new visa from a Japanese consulate or embassy in his/her home country and then after returning to Japan with the new visa in the passport and submitting the certificate of eligibility to immigration at the airport, the foreigner may obtain a new residence status and period of stay in the passport and again legally live in Japan.

ly member residing at the same address may act as proxy, bringing an identification card, and applying on the individual’s behalf.) One’s passport and Alien Registration Card must be shown to the immigration officer with the application form, and at present, a revenue stamp of 3,000 Yen (6,000 Yen for multiple re-entry) is required. The Re-entry Permit is usually placed in your passport on the day of application, but in exceptional cases the permission is granted after a few days.

Foreigners with a one-year period of stay entered in their passport may have a Re-entry Permit valid for one year from the date of issue or until the present status expires, whichever comes first. The one-year Re-entry Permit is valid only for one trip out and back to Japan during that one-year period.

Foreigners with a three-year period of stay entered in the passport may have a three-year multiple Reentry Permit valid for three years from date of issue or until the present status expires, whichever comes first.

Foreigners with a permanent residence status may have a three-year multiple Re-entry Permit valid for three years from the date of issue.

Immigration offices are not open on weekends and holidays. Emergencies may suddenly occur that require a foreigner to leave Japan immediately and then return to Japan. Therefore, it is always advisable to have a valid Re-entry Permit in one’s passport at all times.

Applications for Re-entry Permits must be made in person, except for children under the age of 16 years or adults over the age of 70. (If the person cannot apply in person due to illness, a fami18

AFWJ Legal Mini Handbook

Chapter 1: Immigration/Municipal Offices

Permanent Residence Wandalee Kabira © 2005

A foreigner living in Japan for three or more consecutive years with Spouse of Japanese National (Nihonjinno haigusha to) status may apply for permanent residence (eiju) status. A foreigner living outside Japan married to a Japanese for three years or more and then residing in Japan with a Spouse of Japanese National status for at least one year may apply for permanent residence. These regulations became effective in Tokyo in November 1998.

In Japan, as in all countries, there are exceptions to all rules. Different areas of Japan may have slightly different applications of general rules, so please consult your local immigration office.

The processing of the application for permanent residence may take six months or more; therefore, you should have at least six to 12 months remaining on your valid Spouse of Japanese National status before applying for permanent residence. After receiving your permanent residence stamp in your passport, it is necessary to have your new status entered on your Alien Registration Card at your local municipal office within 14 days.

It is important to know that those with permanent residence status must have a valid re-entry stamp when leaving and entering Japan, and that a multiple three-year re-entry may be granted to those with permanent residence. However, continuous residence outside Japan is not expected for those who hold permanent residence status in Japan.

There are no big disadvantages of permanent residence for foreign wives, but there are real advantages. A Spouse of Japanese National (Nihonjinno haigusha to) status is good only as long as one is a spouse. Even those with a three-year period of stay stamped in their passport should report to their immigration office as soon as possible, for example within one month, of their divorce from or the death of their Japanese spouse, in order to consult immigration officials concerning their visa status. With permanent residence status, you are entitled to remain in Japan in case of divorce, separation, bereavement or other circumstances. A foreign spouse with or without Japanese children and who has never held a job here, or an elderly foreign wife who has no separate financial income or who is retired, may find it difficult to satisfy the financial stability and guarantor requirements for a change of status after a divorce or bereavement.

With permanent residence status, a foreign spouse is entitled to remain in Japan without any change of status in case of divorce or bereavement or other circumstances. There would be no need to report divorce, separation, or bereavement to the immigration office if the foreign spouse has permanent residence status. Please consult the general requirements for applying for permanent residence status as listed in the chart on Appendix D.

Some foreign wives hesitate to apply for permanent residence status on the grounds that their taxes will increase. It is not your visa status but the length of your stay in Japan that determines your tax liabilities. Foreigners on any resident status who live in Japan for a total of five years or more are liable for paying taxes here on their world-wide income. For situations concerning Japanese permanent residence and the laws of your country of citizenship, please consult your embassy here in Japan.

AFWJ Legal Mini Handbook

19

Chapter 1: Immigration/Municipal Offices

Dual Nationality and Loss of US Citizenship Wandalee Kabira © 2005 (The following information was acquired in 2004 from the US Consulate in Tokyo, Japan) Dual Nationality The Supreme Court of the United States has stated that dual nationality is “a status long recognized in the law” and that “a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both.” The mere fact that one asserts the rights of one citizenship does not in itself entail one’s renouncing the other nationality.

While recognizing the existence of dual nationality and permitting Americans to have other nationalities, the US Government does not endorse dual nationality as a matter of policy. The claims of one nationality may conflict with those of the other. Moreover, dual nationality may hamper US efforts to provide diplomatic and consular protection abroad. It is generally considered that while a dual national is in the other country of which he/ she is a citizen, that country has primary claim on the person. US law, for example, requires that all citizens must travel on US passports when entering or leaving US territory.

Some countries, however, do not recognize dual nationality and it is prudent to check with authorities of the other country if dual nationality is permissible under local law. For example, under the 1985 Japanese nationality law, individuals having a second nationality at birth are required to make a formal declaration of their Japanese nationality at adulthood (before the age of 22) in order to retain their Japanese citizenship. This declaration should have no effect on one’s US citizenship.

Loss of Citizenship Section 349 of the Immigration and Nationality Act states that US citizens are subject to loss of citizenship if they perform certain acts voluntarily with the intention to relinquish US citizenship.

These acts are: ** becoming a naturalized citizen of a foreign state; 20

** taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions; ** entering or serving in the armed forces of a foreign state engaged in hostilities against the US or serving as a commissioned or noncommissioned officer in the armed forces of a foreign state; ** accepting employment with a foreign government if (a) one has the nationality of that state or (b) a declaration of allegiance is required in accepting the position; ** formally renouncing US citizenship before a US consular officer outside of the United States; ** formally renouncing US citizenship within the US ( but only in time of war ); ** conviction for an act of treason.

The Department of State is responsible for determining the citizenship status of a person located outside the United States. When such cases come to the attention of a US consular officer, the person concerned will be asked to complete a questionnaire to ascertain his/her intention to relinquish US citizenship. Unless that person clearly and affirmatively asserts that it was his/her intention to relinquish US citizenship, the consular officer is required by law to assume that the person acted with the intention to retain his/her US citizenship, and therefore rule that the person did not lose his/her US citizenship. Consequently a person will be judged to have lost nationality only in those case where: ** the individual formally renounces US citizenship in writing before a consular officer; ** takes a policy-level position in a foreign state; ** is convicted of treason; ** the expatriating act is accompanied by conduct which is so inconsistent with retention of US citizenship that it compels a conclusion that the person intended to relinquish US citizenship (such cases are very rare).

AFWJ Legal Mini Handbook

Chapter 1: Immigration/Municipal Offices

Seal Registration (Inkan Toroku)/ Seal Registration Certificate (Inkan Toroku Shomeisho) Wandalee Kabira © 2005 In Japan, a seal (inkan/hanko) with one’s name engraved is regularly used in place of a signature. According to usage, seals are called mitome-in (private seal signature) and jitsuin (registered legal seal) The mitome-in is generally used for day-to-day transactions such as receiving registered mail, accepting home deliveries, using bank account services, etc. In some cases, personal signatures have come to be accepted in lieu of using one’s seal. An official seal (jitsuin) registered at one’s municipal office is used for legal transactions such as: purchase or sale of property such as land, houses, automobiles; rental contacts; guarantees; legal contracts; etc.

The document certifying that a seal is a jitsuin is called a Seal Registration Certificate (inkan toroku shomeisho), and generally no legal contract is valid unless, as proof of one’s identification, the jitsuin is affixed next to the signature and accompanied by the legally registered Seal Registration Certificate issued by one’s own local municipal office.

One must take care to guard the security of one’s official seal and the Seal Registration Card (inkan torokusho).

alphabet on a foreigner’s official seal will vary from place to place. In any case, consult your municipal office for their rules before ordering an official seal.

•

The size of the seal impression must be between 8 and 25 mm in diameter.

•

Apply in person with your seal (jitsuin) and your Alien Registration Card at your local municipal office, and a Seal Registration Card (inkan torokusho) will be issued.

•

When you need a Seal Registration Certificate, you or your proxy must present the Seal Registration Card and fill out an application form (such as detailing the applicant’s name, address, and date of birth) correctly at the registration section (toroku kakari) of your municipal office or at your Administrative Service Corner (gyosei saaabisu koona). Payment of a small fee is required for the certificate.

•

Consult the registration section (toroku kakari) of your local municipal office in the following cases: 1. If your lose the registered seal and/ or Seal Registration Card. In that case, designated procedures are required. 2. If your name changes, due to marriage/divorce. 3. If your address changes. 4. Upon the death of a jitsuin owner, the responsible person should return the Seal Registration Card to the municipal office.

•

Upon moving out of the jurisdictional area of your municipal office, your seal registration will become void, and you are expected to return the Seal Registration Card to that office.

Please re-register your legal seal (jitsuin) then at your new municipal office.

The procedures of registration of a legal seal may differ slightly from place to place, according to local governments’ procedures, but the basic rules are generally as follows: •

•

The seal must be made of hard material such as wood, horn, or stone. Ready-made seals are not recommended as jitusin as they are mass produced. Your seal must be a “one and only.”

Seals are specially ordered for use as jitsuin.

The engraved name(s) must be either the first or last name or alias (tsushomei-pen name) as registered on your Alien Registration Certificate. The regulations for use of kana, kanji or

AFWJ Legal Mini Handbook

21

Chapter 1: Immigration/Municipal Offices

Foreign Spouses’ Use Of Surname Wandalee Kabira © 2005 Foreign wives of Japanese nationals have considerable freedom in the use of a surname. In the husband’s family register (koseki), the foreign wife’s name is not recorded in the box labeled “wife,” but the marriage is recorded with her pre-marriage surname in the remarks section, and not her husband’s surname. However, in a practical sense in society, she may use her husband’s surname or use her pre-marriage surname or use a combination of both. Most importantly, it is generally legally possible to apply for a change of surname to the husband’s surname in the family register (koseki) if she has changed her name on her passport. This may be done at the time of the marriage in some cases, or as the wife’s choice years later, as the case may be.

toroku) must be “signed” (with hanko) by the husband, since the koseki is his official record of nationality and a family record.

If there are children in the family when this application for the change of surname is made, it is best to consult with the officials then about having the wife’s/mother’s pre-marriage surname struck from the koseki box of “mother of child” so that, officially, the foreign wife with the husband’s Japanese surname is the child’s mother. If the child is already married with his/her own koseki, then the hanko of the child will be required on the application for change.

Note that all countries have their own rules concerning a married woman’s choice and change of surname in such things as passports, and a foreign wife is advised to consult her embassy here in Japan concerning the rules and procedures of such choices. Foreign wives with passports in their premarriage name and who travel with children who have passports in the father’s surname may occasionally have to answer questions at immigration checkpoints.

From the present legal standpoint, it is advisable for the foreign wife to legally have her husband’s surname in the family register. This legal record that the foreign wife’s surname is the same as the husband’s surname can be very advantageous in the necessary legalities concerning inheritance. Of course, socially, the foreign wife can continue to use her former surname, her husband’s surname, or a combination of surnames as she chooses.

If a foreign wife wishes to have her husband’s kanji surname recorded legally as her surname, she may apply at her municipal office koseki section for such a change to be recorded in the family register (koseki). The application for change (henko no 22

AFWJ Legal Mini Handbook

Chapter 1: Immigration/Municipal Offices

Disclosure of Your Files at Municipal Offices Wandalee Kabira © 2005 Since December 1, 1995, a foreign resident may request, in person, a copy of his/her original records of alien registration at the municipal office. Simply ask for a copy of one’s file of registered details (gaikokujin toroku gempyo utsushi), and the information will be made available to you for a small fee.

This service came about mainly through the efforts of many Asian foreigners who came to Japan before or during World War II (the Pacific War) and who now, with their offspring, hold the status of “special permanent resident” (tokubetsu eijusha). This freedom of information rule aims to make the workings of government more transparent. The office may ask you to return on a certain day to pick up this record, or some offices may have it available on the day of request.

Proof of Marriage / Birth / Other Documents Wandalee Kabira © 2005 In cases where legal proof of marriage or birth, etc. is necessary, there are official documents that your Japanese municipal office will issue for a small fee. For example, for a Proof of Marriage document, ask for a “kon-in todoke jyuri shomeisho” and for a Proof of Birth ask for a “shussei jyuri shomeisho.”

If you wish a certified copy of an original document, for example, of marriage, birth, divorce or any other document, ask for a “kisai jiko shomeisho.”

Pen Names (kanji/katakana) on Alien Registration Cards Wandalee Kabira © 2005 Foreign wives in Japan have the option to apply for the use of the husband’s surname in kanji and their given name in katakana as a “pen name/alias” (tsushoumei) registered at the Alien Registration section of one’s municipal office. Use the application for change (henko no toroku) to add one’s given name in katakana and surname in kanji on one’s alien registration card (gaikokujin toroku shomeisho) in the section below the name written in alphabet letters (romaji). This kanji/katakana name must generally match the name used in the passport, and regulations concerning pen names may vary from place to place in Japan, and also vary with one’s citizenship. Consult the municipal office for the local regulations.

AFWJ Legal Mini Handbook

23

Chapter 2: Marriage & Divorce

Chapter 2 Marriage and Divorce

24

AFWJ Legal Mini Handbook

Chapter 2: Marriage & Divorce

Marriage in Japan Diane Watanabe © 2005 Marriages in Japan can only take place at a local ward office or city office, in accordance with the requirements of Japanese law. Before or after this you may also have a ceremony in a church, chapel, temple or shrine, but such a ceremony has no legal meaning in Japan. A marriage in Japan may or may not be accepted as legally valid by your home country—check with your embassy.

The Japanese marriage officer will at a minimum require non-Japanese to provide their passport and confirmation from their embassy that they are free to marry (Certificate of No Impediment (CNI) (yoken gubi shomeisho)). In some cases the Japanese authorities may require additional documents, e.g. your birth certificate. It is advisable for you to contact the ward office in the area where you wish your marriage to be registered. They will be able to confirm the exact documents that they require. They will also require the Japanese partner’s family register (koseki tohon) issued by their city office within the last three months.

To obtain the CNI, you must contact your embassy. Procedures vary from country to country, and also according to whether you are already resident in Japan or coming from overseas for the wedding, so contact them WELL IN ADVANCE. For example, France requires you to show documents obtained from French city offices that can take months to obtain. Britain requires you to swear an oath in person at the embassy and then the notice of your marriage to be displayed in the embassy for three weeks (posting the banns) before issuing. Some embassies will issue it the same day. Although the Certificate of No Impediment has no expiry date, the Japanese ward/city office will normally only accept one within three months of date of issue (as they do with the Japanese family register (koseki-tohon)).

At the ward or city office, the couple submit a notice of “Intention to Marry” which must bear the signature or hanko seal of both parties and of two

AFWJ Legal Mini Handbook

witnesses aged 20 or over. Non-Japanese witnesses are fine. The witnesses need not be present at the city office. As long as one of the parties to the marriage goes in person and takes all the documents, the other need not be present either but it is usually easier to answer any questions if you both attend. The marriage officer then issues a “Certificate of Acceptance of Notification of Marriage.”

This, in effect, is the legal marriage certificate. The certificate comes in two sizes. You will usually only be given the smaller one, on plain white paper, unless you specifically ask for the larger one which comes on thicker, cream paper. Giving “for use by country X” is a sufficient reason (even if you really want it to frame!). It costs 1,400 yen and usually takes a few days to prepare.

Some countries require you to register your marriage again in your own country, and others (e.g. the UK) have an optional provision for you to have your Japanese marriage certificate translated and recorded at the General Register Office in the United Kingdom. I would recommend doing this, or if your country does not offer such an option, getting a certified translation of your marriage certificate into your own language or into English (which is accepted by most countries).

You never know when you might want to prove your status at short notice and very few countries/ foreign banks accept documents in Japanese. As a footnote, when a foreign man marries a Japanese woman, under the Japanese Family Registration Law the wife can open her own family register (if she has not already done so) and change her surname on the register to that of her husband.

She must do this within six months of marriage.

Although changing her name is optional it may avoid problems in the future, for instance if the couple have children. If the wife does not change her surname on the Family Register, any children will be shown as having her maiden surname and not that of the father. In purely Japanese couples, either party may change their surname but I can

25

Chapter 2: Marriage & Divorce

find no information as to whether a Japanese male may change his surname to a foreign one. Presumably he can.

The Ministry of Justice has clarification on several related points and their website is: www.moj.go.jp The English page is www.moj.go.jp/ENGLISH/index.html Only Japanese nationals can be recorded on the family register with their own entry, but if you change your name upon marriage your husband can complete a form of change of family circumstances and get your change of name registered.

He will need to do this within six months of the marriage and show your passport with the new name when he hands in the form at the city office.

It is possible to apply to the family court to have name changes registered later than six months after the marriage but more difficult to do. If you don’t do this, the Japanese will assume you kept your maiden name and any children you have will show your maiden name as the mother’s name.

You can also get registered on your husband’s address registration (juminhyo) at the city office. He must ask for this to be done and request it again every time you move or the juminhyo is amended/renewed.

26

AFWJ Legal Mini Handbook

Chapter 2: Marriage & Divorce

Divorce in Japan Diane Watanabe © 2005 As in the case of marriages registered in Japan, your own country will have an opinion as to the validity of divorce in Japan. You are advised to contact your embassy to confirm this and to consult a lawyer before starting any divorce proceedings. Your embassy can usually provide a list of lawyers who speak your own tongue, or for English-speaking lawyers in Japan, see the websites of the Australian, Canadian, UK or US Embassies (Canadians also list French speakers and the UK, Chinese speakers).

HOW DO I GET DIVORCED FROM A JAPANESE NATIONAL? If you want to get divorced from your partner who is a Japanese national, Japanese law applies. There are three ways you can go about it: • Divorce by consent at ward office • Divorce through meditation at Family Court • Divorce through legal suit at District Court 1. Divorce by consent By far the most common method. To get divorced by this method, both partners must agree on everything to do with the divorce. This means that both partners must agree on wanting a divorce and come to an agreement on the conditions of the divorce. This includes distribution of property and other assets, monetary settlements/compensation, parental authority, child custody and childcare maintenance.

and divorce will be granted. The divorce notification requires the signature and hanko seal of two witnesses over 20.

What if I change my mind?

If you sign the application form for divorce by consent and then change your mind, you must complete a non-acceptance of divorce report at the ward office before your partner submits the signed form. This effectively puts a stop on the divorce being filed. It is valid for six months, after which it must be renewed. This form must also be filled in if one partner files for divorce by this method without the other partner’s consent.

What if we can’t agree on the terms of divorce?

In this case, you must try divorce through mediation—basically, using the court mediators to help you arrive at an agreement.

2. Divorce through mediation For this method of divorce, you must go to the Family Court where a judge and two mediators will try to help you agree on the terms of divorce, such as child custody, compensation, etc.

You need to take with you: • Certificate of Foreign Registration (obtainable from ward office) • Family register • Alien registration card • Passport

If both partners can agree on everything, you need to go to the ward office with:

If through this method conditions of divorce can be agreed upon, you will be granted a divorce.

• A signed divorce application form

What if we still can’t agree on the terms of divorce?

• Alien registration card • Passport AFWJ Legal Mini Handbook

If you cannot agree on the conditions, one partner does not want a divorce or one partner does not 27

Chapter 2: Marriage & Divorce

attend the Family Court hearing, you must file for divorce through legal suit. This method is very expensive and will take a long time.

3. Divorce through legal suit If you divorce through legal suit, this will happen at the District Court. In this case the District Court will decide whether or not to grant divorce and will decide the conditions of divorce. Even if only one partner is present, a decision can be made. If one partner is not satisfied with the decision, he/she may appeal. However, once the decision is finalized, both partners must abide by the terms and conditions of the divorce.

If you decide to divorce through legal suit, you will need a lawyer who can advise you what to do.

WHAT GROUNDS FOR DIVORCE ARE RECOGNISED BY JAPANESE COURTS? • Adultery • Desertion with malicious intent • Spouse missing for over three years and possibly dead • Spouse has severe mental illness • Other serious reason (e.g. violence, cruelty, etc.)

You only need grounds for divorce if you are getting divorced through the District Court by legal suit.

WILL MY VISA BE AFFECTED IF I GET DIVORCED? If your visa is independent of your partner’s visa (i.e. you have a working visa), then your visa will not be affected.

However, if you have a spouse visa then you need to apply for a change of status/a new visa (i.e. working visa) at the Immigration Office or leave Japan.

What if I have children in Japan?

• If you have children by a Japanese partner and 28

you have custody of the children, you may be able to apply for a long-term residency visa.

• If you have children by a Japanese partner and do not have custody, you must either apply for a change of status/new visa (i.e. a working visa, etc.), or you must leave Japan. Please contact the Immigration Office for details.

IMMIGRATION Information Centers Tokyo Center

(03) 3213-852/3 - 7

Yokohama Center

(045) 651-2851/2

Osaka Center

(06) 6774-3409/10

Kobe Center

(078) 326-5141

Nagoya Center

(052) 973-0441/ 2

Hiroshima Center

(082) 502-6060

Fukuoka Center

(092) 626-5100

Sendai Center

(022) 298-9014

WHAT WILL HAPPEN TO OUR PROPERTY? If your partner is Japanese, then Japanese law applies. This means that all property accumulated by the couple since they got married will be divided. This includes both property jointly owned and property in only one partner’s name.

CAN I CLAIM COMPENSATION/ALIMONY? If your partner is Japanese, then Japanese law applies. This means that the partner whose actions caused the divorce (i.e. by committing adultery) should pay a sum of money to the other partner. The amount is calculated by considering the amount of psychological damage inflicted by those actions and by the divorce and also takes into account money needed after the divorce (such as alimony).

If neither partner caused the divorce by such actions, no compensation is paid.

AFWJ Legal Mini Handbook

Chapter 2: Marriage & Divorce

WHO WILL GET CUSTODY OF OUR CHILDREN? WHO DECIDES? If your child holds Japanese nationality and one parent is Japanese, then Japanese law applies.

Only one parent can have parental authority and this must be decided at the time of divorce.

• If you get divorced by consent, you and your partner can decide who will have parental authority and you must agree on this. For you to gain parental authority, you must have your partner’s consent.

• If you get divorced through mediation, the judge and mediators will help you to come to an agreement on who gets parental authority and you must agree on this. For you to gain parental authority, you must have your partner’s consent.

• If you divorce through the District Court by lawsuit, the court will decide who gets parental authority. The court usually favors the parent holding Japanese nationality.

If the child does not hold Japanese nationality, you should consult a lawyer.

You may find it helpful to contact the Children’s Rights Council Japan for advice on this matter.

Their number is 03-5317-0357.

AFWJ Legal Mini Handbook

29

Chapter 2: Marriage & Divorce

Partner/Spouse Violence Gloria Bauer Ishida © 2005 What is Partner/Spouse Violence?

Violence against women can occur in any setting.

“The term ‘violence against women’ may be explained as ‘any act of gender-based violence that results in or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life’.”(Beijing Platform for Action: Fourth World Conference on Women.)

One of the most insidious occurrences of violence against women occurs in the home. Domestic violence and abuse have been invasive in most cultures for hundreds, if not thousands, of years. It comes in the form of blatant acceptance as a male right (while females can be and have been guilty of abusing their partners, it is the male who is most often the perpetrator). Defense of the action by the spouse may be explained as the female spouse or partner being inadequate, incompetent and needs physical or psychological punishment to be taught what is expected of her. The abuse may be justified as a show of love. In Japan, but not excluding other countries, drunkenness often begets violence. Because of its cultural acceptance, violence has also been thought to be nobody else’s business, a family or domestic matter. Whatever the rationale, it is a power game. This very concept of power excludes respect for another.

Few, if any, marriages/relationships are free of conflict. Arguments, sometimes with unacceptable language and accusations being used, occur. But if you ever ask yourself, “Am I in an abusive relationship? Am I psychologically abused and additionally physically abused so that my life and/or my sanity are in danger? Are our children suffering because of what they are witnessing between their father and myself? If the answer is “yes,” it is time to seek help. If this is not you, it may be a relative or friend.

30

There are often heard common explanations of why women stay in an abusive relationship. Being the victim of domestic violence is often seen as a cause for shame, this causes the victim to hide the situation. Self-blame is not unusual. Women are often financially dependent and as a situation gets worse, lose any ability to access any financial resources. Continuing to “love” and acknowledge the abusive partner as the head of the family may also cause the victim to delude herself into thinking, “He is really a good person; things will get better.” Unless the abuser is able to get substantial counseling and as a result come to an understanding of himself and change his behavior, more often nothing gets better. While the law refers to counseling for behavioral change in the perpetrator, this is still not common in this country.

The Law for the Prevention of Spousal Violence and the Protection of Victims (配偶者からの 暴力の防止及び被害者の保護に関する法律 (Haigusha kara no boryoku no boshi oyobi higaisha no hogo ni kansuru horitsu)), passed in 2001, is a first step in being able to get support and protection. Provisions of the law were renewed and revisions were made to strengthen the rights of victims the first week of December 2004. It includes provisions that can aid not only an abused spouse in a legal marriage, but also those in de facto relationships, that is, being in co-residence as a couple without the relationship having been registered as a marriage. It also includes violence that continues after a legal divorce.

Spousal Abuse—A Crime in Japan Crucial to the provisions of the law is the reiteration by the government that spousal abuse is a major criminal act and a violation of human rights.

The revised law expands the definition of violence beyond physical to include psychological through physical or spoken acts and sexual abuse. These may be harder to prove and document, however, relative to this law. It then makes provision for

AFWJ Legal Mini Handbook

Chapter 2: Marriage & Divorce

the prevention of spousal violence and for the protection of victims “through the establishment of a system to deal with spousal violence, providing for notification, counseling, protection, and support for self-reliance, etc.”

(In addition to the “spousal abuse” law, a new law that strengthens the rights of serious crime victims through an “overhaul” of the Penal Code was passed, also in early December 2004. Harsher penalties will be meted out. Victims include persons who have been raped and those who suffer violence by spouses.)

It may be because of the enactment of the “spousal abuse law” that women (and in some cases men) are feeling freer to seek police intervention. According to the National Police Agency, 12,568 alleged (sic) cases of domestic violence were filed throughout Japan in 2003.

In the same year, the Japanese Cabinet conducted a nationwide survey on domestic violence. Results showed that almost 15.5% of women (about one in six women) suffered physical violence by their husband or partner and 19.1% were forced to perform sexual acts against their will, or suffered physical or emotional abuse.

Whether those surveyed were women of Japanese nationality or not is not stated; however, in reports from the media and from women’s support organizations and shelters throughout the country, it is well known that foreign women married to Japanese men are also victims. Thus, not excluding male victims, the following categories of persons are to be granted aid and protection under the law: Japanese married to Japanese or married to foreign spouses residing in Japan; foreigners married to or living with Japanese in a domestic situation; and it may be assumed that foreigners married to foreigners are included.

lence Counseling and Support Center (「配偶者 暴力相談支援センタ−」haigusha boryoku sodan shien centa), that have been established throughout prefectures, often through or within Women’s Consultation Offices; these centers are established by law in prefectural capitals; municipalities may also have their own). The centers can, in addition to providing necessary legal information, direct the victim and minor children to a shelter, either prefectural or private. In an immediate occurrence of violence, it is essential that police be called in or that one goes to the nearest police station. Under the law, the police are required to stop the violence and to further protect the victim.

The Protection Order (『保護命令』hogo meirei) The abuser must vacate the domestic residence of the couple for two months (this is one of the newly revised provisions—the previous period was only two weeks).

When the victim is staying at another place, the abusive spouse may not approach the victim for a period of six months wherever the victim is residing when different from the couple’s place of residence or near the workplace, and may not loiter in the area. Harassing telephone calls are included. The protection order also includes those children who are with the abused parent.

Seeking a protection order Reporting the situation to either the police or the counseling center is important when seeking to petition for a protection order.

The following documentation in writing is necessary to petition.

1) Details of the situation when violence occurred.

So, what is necessary when one is a victim of violence from one’s partner? Seeking protection and aid under the law is not necessarily easy and a stepby-step process is necessary.

2) Sufficient evidence that proves that the violence is likely to continue and will cause significant harm to the victim. (This could include medical documentation.)

Where to seek help when one is the victim

3) Stating whether the victim has sought counsel or help from the Support Centers or the police, and if so, the name of the particular support center or police station.

Whether violence occurs for the first time or the fiftieth, it is necessary to involve reporting to the police or seeking necessary support through a governmental (or in some cases, private) Spousal VioAFWJ Legal Mini Handbook

4) The date and time of the counseling session or 31

Chapter 2: Marriage & Divorce

report of violence and request for help.

5) Details of the session(s) and/or report.

6) Details of measures taken in response to the above.

In the case the victim has not sought aid and protection from either a support center or the police and thus cannot provide the information for items 3 to 6 on the petition, items 1 and 2, stated by the victim, may be submitted to a recognized Notary Public (公証人、koshonin).

Issuance of the protection order The petition is submitted to the appropriate District Court (地方法務局、chiho homukyoku), which in turn is to deal with the petition in a timely manner. Oral proceedings are necessary before the protection order can be issued, although these may be waived in cases that are deemed urgent to the immediate safety of the victim. The court requires the police or the Support Center to also submit details of the report and request for aid from the victim, when these have been a part of the petition.

Interim It would be foolhardy for a victim of spousal abuse to subject herself to further danger while waiting for the issuance of the protection order. She should have interim protection by residing either in a shelter or in some other safe place. All prefectures are required by this law to provide a shelter.

In addition, as of late 2004, there are 77 NPO private shelters throughout Japan. If the victim is referred to the prefectural shelter and that shelter is full or there are other circumstances that exclude her from its use, she will be referred to a private shelter. A victim may seek direct access to a private shelter.

Office (fukushi jimusho) as soon as possible to report your situation and apply for funds.

Do remember that shelters do not offer long term stays; the maximum is usually no more than a month.

Enforcement and Revocation Once the court has issued the protection order, the court clerk should promptly notify the appropriate police personnel who have jurisdiction over the address of place of residence of the protected person. The police are the ones who have the enforcement power.

The law provides for punishment of violators of the protection order. While a protection order may be appealed, this does not nullify the order during the appeal process.

The petitioner may ask for a revocation of the order, or agree to the request of the spouse after three months.

All officials involved, police, counseling centers, and court should keep records of everything concerning the case.

Personal help The legal process itself can be overwhelming, especially to a person who may have lost all self-confidence because of abuse. It is helpful to have a friend to help get you to a safe place. Even if you are fluent in Japanese, having a Japanese friend or family member who knows your situation will make things easier, especially in assisting in the documentation for your situation.

Important to remember is that you are not at fault for this abuse by a spouse or partner. ********

Circumstances may call for minor children in school to be separated from the mother. These include lack of shelter space, the gender of the child (boys are only accepted up to a certain age in most shelters), or the serious mental state of the mother).

Practical advice from various sources concerning spousal violence

There are small fees for residing in either prefectural or private shelters. If you do not have enough money for daily life, you should go to the Welfare

This may mean immediate escape during a violent episode.

32

If you are in an abusive relationship, you must remember, you do not deserve violence. Your spouse is responsible for his own actions. You are responsible for your life and the lives of your children.

AFWJ Legal Mini Handbook

Chapter 2: Marriage & Divorce

1) Do not allow yourself to get chased into a room that has no exit, and try to stay out of rooms that have easy access to potential weapons.

2) Let your children, if you have them, be aware that it is all right to seek help.

3) Depending on the accessibility of help from friends or relatives, you may develop a code message to be used in communicating your need for help.

4) Leaving the house, getting to a telephone, or actually going directly to the police, are absolutely necessary actions.

•

Necessary personal items

Previous planning should include having a safe place to go—“safe” means where your abusive spouse cannot find you. It may be a shelter or a hotel (if you have the necessary funds) not too close to home. One’s first inclination is to go to a friend’s house. If the abusive spouse knows who this person is, however, this may be the first place he would look.

If you are going to seek legal protection, remember to go to the police as soon as possible.

5) If you have little or no money immediately at hand or if you are not living in a major urban area, going to a Christian church or the residence of a missionary, even if you are not a Christian, and explaining your need will generally get you some kind of help.

It is better, however, to have made preparations.

These preparations include having important documents, money and some basic necessities accessible. The minimum should include: •

Alien registration card and passports, yours and your children’s, even if you have no intention of leaving the country; in fact, leaving at this point might put you in legal jeopardy.

•

Cash and banking and credit cards. Hopefully, you have access to your own account, which cannot be cut off. A word of warning, however—your spouse may be able to trace you when you do any kind of banking. It may be better to close your accounts and not use credit cards until you have another address.

•

Health insurance cards

•

Documentation of previous abuse, i.e. police reports, reports from the Family Court or other (see below), photos of injury, medical reports

•

Prescription medications

•

Necessary telephone numbers and a telephone card, your “keitai” or mobile phone if you have one. Use your “keitai” only for making calls and then turn it off. You do not need to be further harassed by your spouse.

AFWJ Legal Mini Handbook

33

Chapter 2: Marriage & Divorce

Avoidance of Fraudulent Divorce Wandalee Kabira © 2005 If a foreign spouse is threatened with divorce by a Japanese spouse who may refuse, for example, to sign the letter of guarantee for an extension of a spouse visa, and/or it is believed will falsify the foreign spouse’s signature on a divorce document filed at the municipal office, the following action is advisable.

It is important to remember that any BLOCKAGE document is valid only for a certain period of time from the date of application. Carefully note this period of time, and before its expiration date, apply for a new blockage of notification of divorce if such blockage is still necessary.

In order to prevent the submission of a “Notification of Divorce” (rikon todoke) at the municipal office, it is possible to apply for a “Non-acceptance of the Notification of Divorce” (rikon todoke fujuri moshidesho) at one’s municipal office or any municipal office within one’s city/town/village. The date and time of submission of the document are carefully noted. As a result, one is protected from a municipal office accepting a Notification of Divorce.

The Non-acceptance of Notification of Divorce (rikon todoke fujuri moshidesho) is valid for only a certain period of time but can be extended for another period of time upon filing again. Consult with the municipal office concerning the period of validity.

If a Notification of Divorce with a false/forged signature of the foreign spouse has been accepted at the municipal office, the foreign spouse may only seek help from the family court.

The following applications for BLOCKAGE are available at municipal offices and may be submitted at one’s municipal office or at the Japanese spouse’s permanent domicile (honsekichi). * Marriage against a person’s will * Divorce against a person’s will * Adoption against a person’s will * Dissolution of adoption against a person’s will

34

AFWJ Legal Mini Handbook

Chapter 2: Marriage & Divorce

An Ending and A Beginning MN © 2006 Ah, the camaraderie of AFWJ: getting married, managing the first household, moving, pregnancy, birth, toddlerhood, pre-school, school, entrance exams, bullying, getting jobs, retiring from jobs, funerals, as well as food and fun. We’ve got the whole spectrum.

Another slice of the spectrum: I got divorced in December 2005.

I’ve known from the first 90 minutes after saying “I do” that it was going to be a difficult marriage, but I’d somehow managed for nearly 28 years.

Then, late in December 2004, I felt decidedly unsafe when both sons were out of the house and DH (Dear Husband) started shoving me around when I didn’t go into the kitchen to start cooking as quickly as he wanted, etc. On January 10, 2005, I moved out. I was grossly under-employed (only two days a week) and did freelance stuff (thank you, all who helped!). I changed my address on my alien registration, driver’s license, and post office mailing. I changed the account from which my credit card is paid (from his to mine), and that mailing address as well, and then moved AGAIN. I also saw two lawyers; the more helpful of them showed me the forms for filing for divorce and for financial support, and told me to file for both— making verbally clear that first choice was divorce, but that if he decided to drag things out for years, I needed financial support.

I filed for the divorce at Yokohama Family Court on June 15. I submitted the specific forms, a copy of his family koseki (the new electronic format DID mention me more prominently than the handwritten old form), my gaikokujin toroku zumisho (giving my address at the time), and a modest fee paid in postage stamps (some later refunded). The cost at this stage is not prohibitive. They don’t want women battered simply because they don’t have the money to get a divorce. If you’re thinking of doing it, you can go to family court just to talk to them and find out the details. They sent me the notice for the first session by post—usAFWJ Legal Mini Handbook

ing one of those postage stamps? I have no idea.

The divorce process here stipulates three mandatory mediation sessions before taking the discussion before a judge with lawyers present. It makes sense; if there is ANY possibility of talking through to a resolution of any sort, it is best to do it before things get to court. At any point, the two parties can agree and divorce by private agreement. Or it can be done through their mediation and have the terms on legal record. Or it can drag on in front of a judge.

The first mediation session was August 2. The format is, two mediators (one team of a man and a woman, who stay the same throughout) meet with the person who filed, then usher that person to a separate waiting room while they talk to the other partner. When they finish with the other partner, that person is ushered out while they call the first one back to report on what was said. We never had to meet. They first wanted to find out why I wanted a divorce. It was a puzzle to them: we failed to fit into any of their neat, easy categories: drugs, wife beating, sex outside of marriage, etc. I was given homework for the next session’s topic: why I wanted money from him, and proof of my economic need.

The second session was October 18. It was REALLY unpleasant to prove “economic need,” even when it was obvious. I came with a backpack full of paperwork, copies of important documents, receipts of expenses, Excel charts and graphs, and back tax records (for both of us). The male mediator suggested that I was simply tired of DH and wanted a younger or higher-paid spouse. I suppose he wanted to see my reaction to such a dumb statement.

DH came to the second session with one sheet of paper he himself had written out, “proving” that on an income of ¥16 million a year, he didn’t have a cent that he could divert to me (and ran two hours overtime presenting it). When the medi35

Chapter 2: Marriage & Divorce

ators reported what he had said and showed me the sheet, I told them he’s a corporate financial controller. Doing things with numbers to prove whatever he wants is his profession and I can’t argue with him, but look at it from common sense.

The mediator who had suggested I was tired of DH then quipped, yes, and YOUR numbers were all backed by receipts. (I suspect his annual salary is half of DH’s, and yes, common sense says he should have SOME money.)

The third session was December 13. I had been half out of my mind with stress over this. I told everyone close to me the date and time and asked them to pray for me, met DH by accident on the 5th (we got into a heated discussion because he “didn’t see why all this was necessary”), phoned MIL the 9th (“tell your son to be sensible”), and then phoned DH on the 12th just before he left for work (“here’s how you can find the funds”— remember, I had all his financial records on copy up to January 2005). I found DH’s essay in the “Marriage Avec Japaner” 2000-2001 online book/ CD-ROM project and printed it out, using highlighter pen on key passages. I could show how perhaps he had tired of making any effort at being “international” and just wanted to retreat to his Yamanashi home village, and was deeply frustrated by my failure to transmogrify into a Japanese woman (with a pre-war Japanese female mindset), frustration that leaked out when he was drinking (AKA, his at-home time).

DH had also sent me a letter asking me to apply for a job in a want ad that he had clipped from a Japanese newspaper, for a translator (Japanese, age under 35) that he was sure I could get. “Just tell them you’re an American.” I was blunt: this is the way the man thinks, I can’t deal with it, and because he thinks like this, living with him legally in charge scares me silly.

They then talked to him as routine segment two of the mediation session. Suddenly, they called me in, said an agreement had been reached, and told me what it was: ¥5 million, not the ¥7 million I had originally asked for. ¥7 million would take two years or so to get processed through the court.

I weighed one year of my life against ¥1 million more money per year, and agreed to the lower figure. For me, it is an acceptable “starter pack,” not compensation for my 28 years.

36

They called in a justice-of-the-peace, and gave us papers to fill out and sign. That was it.

OK. So it was suddenly final and over. But “it ain’t over till it’s over.” Within the next ten days, I needed to either take the court papers to DH’s home village office (mura yakuba), or go the postal route (yeah, I went postal!)

Here is the list of things I needed to do: (1) Get a copy of the family koseki by mail (checking first by telephone as to procedures, forms and fees).

(2) Wait for the final statements from the court to arrive: a short form (with no mention of money, etc.), and a long form (outlining everything).

(3) Take the koseki copy and the short form of the court statement to my local ward office, and have them make the proper records there. A kindly clerk took me through that task.

(4) Get a copy certifying that the divorce had been registered (?) there.

(5) Go to the alien registration section and have them record the facts in my file—not on my AR card, because the change in “head of household” had already been done when I moved out in January.

Whatever. Nothing has changed, and everything has changed. I’ve been completely on my own since January. I was emotionally on my own for years before that. Going to a free concert by myself one Sunday night felt “like always.” It does feel like an opening up, not the sucking-down-to-thegrave sensation I had when I was living in the spacious 12th floor manshon in northern Yokohama.

SOMEDAY, I would like to experience a good marriage from the inside. I’ve looked at some of the AFWJ members’ marriages, and I’ve never had a good marriage, where people are generally nice to each other and respect each other even if they don’t just absolutely love each other every moment. Where moral support is the norm, not nasty cut-downs. Some of you have those good marriages, and I know it doesn’t “just happen.”

But it also is not something that can always be “fixed” by hard work. I did my best, and it didn’t result in a happy end. I feel broken, wrung out, AFWJ Legal Mini Handbook

Chapter 2: Marriage & Divorce

failed. Our rector has suggested a “service of restoration at the end of a marriage,” and I’d like to close with a few bits from one of the prayers. “O God, we wonder whether we were wrong in our beginnings, or wrong at our endings. We come into your presence believing that we have faced things that were too great for us, knowing that you never ask us to be destroyed. We confess that, in the complexities of human relationship, we have failed. We have wounded ourselves and those we love, and our faith in our own worth and beauty and in the great possibilities of human relationship is shaken. Forgive us, O God. Amen.”

Cosmic forgiveness, restoration and healing of the soul, all that is God’s territory, not a territory I can conquer by myself. All I can do is pray, and remind myself: “How joyful I am, because God has helped me”, and He HAS helped me through too many “coincidences” large and small.

Being thankful for what I do have is the first step in getting myself to where I should, and want to, be in this world.

MN (in Meguro these days) (published originally in AFWJ Journal, February 2006 Edition. Reprinted with kind permission)

AFWJ Legal Mini Handbook

37

Chapter 3: Children

Chapter 3 Children

38

AFWJ Legal Mini Handbook

Chapter 3: Children

Birth Registration with the Japanese Authorities Diane Watanabe © 2005 BIRTH IN JAPAN Notification of the child’s birth must be made to the Residents’ Register Section of the municipal office or one of its branch offices within 14 days of the birth. Please contact your local office to confirm their requirements, but in general they will require the hospital birth certificate and the father’s family register (koseki tohon). Mother’s passport or birth certificate are not required. You can register the birth either at the office covering the area where the baby was born, the area where your husband’s family register is kept or the area where he is registered as resident (juminhyo). (For birth registrations overseas, please see the “Registration of Birth of Japanese Child Born Overseas” article.)

ILLEGITIMATE BIRTHS The baby can be registered as a Japanese citizen (with its own family register if necessary) provided that the father makes a declaration accepting paternity for this purpose. This is pretty rare, although I have seen two examples. Some smaller city offices may therefore be unaware of this procedure—if you have problems, persevere and ask them to contact the local Ministry of Justice family affairs office for further information.

NAMES Names may only use kanji or kana—the Roman alphabet is not allowed. Kanji must be from a list of nearly two thousand kanji approved for names (it was expanded by over 400 in August 2004) so there are plenty to choose from. The baby will have your husband’s surname on the family register. You may be able to register the birth with your country using a different surname, or both. Middle names are not possible in Japan (if you try to register e.g. William Alexander it will appear as one name—‘uiriamuarekusanda’) but again, your own embassy may allow you to register a middle AFWJ Legal Mini Handbook

name. Most will allow you to correct the spelling from the Japanese kana version.

BIRTH REGISTRATION—YOUR COUNTRY

OWN

You will have to check with your embassy as each country has its own rules. Your child may not even be entitled to the same nationality as you.

PASSPORTS Japanese Child passports are valid for five years. It is no longer possible to add children to a parent’s passport (this goes for most countries now). You or your husband will need to take the baby to the passport office together with your husband’s family register (koseki tohon) and photos and complete the form.

It must be signed by one of the parents. (Examples are given in the passport office waiting room on how to sign in the roman alphabet or in kanji.) That parent should be the one the child would normally travel with, so likely to be you. The photos must conform to a very specific size and layout: see www.mofa.go.jp/mofaj/toko/passport/ for details (in Japanese only). You will need to then take the baby back a week later to pick the passport up— collection must be in person, even for babies, as they check the photo against the real person. Recent changes in passport law have meant that you can now have your child’s name entered in the Japanese passport with non-Japanese spelling and surname. You must produce the child’s non-Japanese passport or birth certificate if a passport is not available showing the non-Japanese spelling.

You can either have the non-Japanese spelling recorded in brackets after the spelling from kana, or you can have it entered directly in the foreign spelling. (Example: for my son we had it recorded as Korin (Corin) WATANABE but it could have been Corin WATANABE. If I had registered his surname at my Consulate as Watanabe-Lloyd, 39

Chapter 3: Children

he could have had Korin (Corin) WATANABE (Watanabe-Lloyd). Please note: Japanese nationals MUST leave and enter Japan on their Japanese passport even if they hold other passports. People have been stopped from traveling before now.

Beware too if your child has two passports in different names or spellings—airlines are now very strict and may refuse to carry a passenger whose passport name does not exactly match the ticket.

That is why we had to register his name as Korin (Corin) and not Corin—we’d already booked air tickets to Guam as Mr. K, not knowing about the recent change. When we renew we’ll just have the British spelling on it.

Non-Japanese Check with your Embassy—most will want the local and/or consular birth certificate, some will want your husband’s family register or your passport too. Some countries have to send back home for the passport so it may take weeks.

40

AFWJ Legal Mini Handbook

Chapter 3: Children

Registration of Birth of a Japanese Child Born Overseas Wandalee Kabira © 2005

In order for a baby born overseas to a Japanese parent (parents) to be a Japanese national, it is necessary to register the birth at a Japanese embassy or consulate within three months (90 days).

No exceptions.

PROCEDURES FOR REGISTRATION 1. Preparation Before Birth in a Foreign Country Not later than one or two months before the birth, call the nearest Japanese embassy or consulate and request information on timing, requirements, and procedures for the baby to establish Japanese nationality. Obtain the form “Report of Birth” (shusshou todokede) and write in all sections except the data of the child’s actual birth. The “Report of Birth” form is, naturally, in Japanese, and no tiny errors are permitted.

Some consulates provide mailing services for the required forms if one is living far outside the general geographic area of the consulate; otherwise one must appear in person and request a “Report of Birth” application. It is best to inquire by telephone about the hours of operation and mailing services. Be sure to include a telephone contact number when using mail services so that the consulate can quickly make contact in case questions arise.

Some consulates may require a copy of the Japanese parent’s family register (koseki—on which the marriage with the foreign parent is recorded) issued not more than 90 days before use for application at the consulate. Therefore, it is advisable that shortly before the birth, a relative or trusted person send a newly issued copy to your overseas address from the Japanese parent’s permanent domicile (honsekichi).

AFWJ Legal Mini Handbook

2. Applying for Birth Registration after the Birth: Obtain a certified copy of the baby’s birth certificate from a government registry office, which may vary from country to country, Usually, a hospital birth certificate is not acceptable at the consulate. Consulates may require photocopies of the parents’ passports, or a copy of the family register, or both. Carefully complete the “Report of Birth (shusshou todokede) form.

In cases where, for example, the baby will acquire at birth the nationality of the country where he/she was born, or in case he/she automatically receives the foreign parent’s nationality, then in the additional remarks section of the “Report of Birth,” it is necessary to write “Report of Retaining Japanese Nationality” (kokuseki ryuho no todokede) in order to avoid problems later if the child needs to show that he/she has held Japanese nationality since birth.

With all the required documentation and forms, report the birth to the consulate.

3. Registering the Child in the Japanese Family Register (koseki) System A: The next step is for the child to be recorded in the all important family register (koseki). If requested, the consulate will send the proper forms and documents to the Japanese parent’s permanent domicile (honsekichi) to be processed. It may take approximately two or more months for the baby to be recorded into the family register (koseki) in Japan, and for a copy of that family register to be sent back to the consulate in order for the child to obtain a Japanese passport.

41

Chapter 3: Children

System B: A faster and easier “do-it-yourself ” procedure is to send a copy of the child’s Report of Birth, obtained from the consulate, by registered mail to a Japanese family member of the child (grandparent or another near Japanese relative), and ask them to take or send the birth report to the permanent domicile (honsekichi), have the child registered, and then send a new copy of the family register (koseki) by registered mail to the child’s address abroad.

With that essential document, the parent may then apply at the Japanese consulate/embassy for the child’s Japanese passport.

When the child is placed in his/her Japanese parent’s family register (koseki), he/she officially becomes a Japanese national.

4. Bringing the Baby Back to Japan NOTE: Do not plan to bring the child into Japan on the non-Japanese parent’s passport or on the child’s non-Japanese passport. It is against the law for a Japanese national to enter/depart Japan on a non-Japanese passport. In addition, there would then be difficulties in invalidating the stamps placed in the child’s non-Japanese passport at airport immigration.

The procedures for bringing the baby back to Japan may depend on the timing of the proposed trip. Since one cannot apply for the child’s Japanese passport at the same time as registering the child’s birth at the consulate, it is important to plan the trip so as to allow enough time for obtaining the family register (koseki) in which the child is registered. Japanese passport issuance requires a copy of this family register.

birth, then it may be possible for the parent, at the time the birth is registered at the consulate, to ask that a Japanese travel document (kikoku no tame no tokosho) be prepared for the child, and to use that in lieu of a passport for the child when he/ she first enters Japan. This is not issued automatically, and the availability of this document may differ among consulates/embassies. Be sure to inquire about this possibility when first contacting the consulate/embassy; do not depend automatically on this plan.

NOTE: It is illegal for a Japanese with dual nationality to enter or depart Japan on anything other than a Japanese passport or Japanese travel document. A dual national must never enter or depart Japan on his/her “other” ( foreign) passport.

Such action can be viewed as attempting to pass as non-Japanese; remember that entry and departure stamps on a passport, for example, 90-day temporary visitor visas, are recorded. Be warned here.

This warning applies to entering other countries also. Dual nationals must remember always to use the “other” passport when entering or departing the country of the “other” nationality. (For example, it is illegal for USA dual nationals to use a non-US passport when entering or departing the USA.) The immigration officials at airport or seaport immigration booths will generally ask to see both passports to verify the departure and entry stamps.

Since it may take two or more months to obtain the child’s family register and Japanese passport through the services of the consulate or embassy, it may be faster to use the “do-it-yourself ’” System B described above to obtain the child’s family register and Japanese passport. The consulate or embassy may advise you to use System B as listed above.

System C: There is a legal way to bring the child into Japan without his/her passport. If the child is to be brought back to Japan within a short time of 42

AFWJ Legal Mini Handbook

Chapter 3: Children

Documents and Procedures for Acquiring a Passport for a Japanese Child Born Overseas Wandalee Kabira © 2005

A list of specific requirements and timing involved is best obtained from the nearest Japanese consulate before the birth of a child overseas. Remember “case by case,” “country by country.” See the general list below.

1. A passport application form.

2. A copy of the family register (koseki tohon) showing the child properly registered in the Japanese parent’s family register.

3. Two pictures of the child (4.5cm X 3.5cm measured from the outside), light background, baby shown face front, eyes open, no hair cut off the picture.

to inquire about the time required when applying for the Report of Birth, or even when making the first initial contact with the embassy or consulate.

Then make your travel plans accordingly. Allow extra time; then there will be no sad tales of nonrefundable travel tickets.

9. A child’s passport is valid for five years.

All sections above are only general guides; please inquire carefully at your nearest consulate before making plans concerning the registration of birth or application for a travel document or for application for a passport.

4. Certified copy of the baby’s birth certificate (government, not hospital, document) 5. A picture ID of the person making the application may be required (passport, driver’s license).

The non-Japanese parent or Japanese parent may apply.

6. Generally, the baby must appear in person once, at the time of application for passport, or, generally, when the passport is picked up at the consulate.

7. The fee charged for a passport may vary from country to country. Be sure to ask about the required fees at the time of application and have the correct currency.

8. The time required for the issuance of a passport will vary from consulate to consulate. In some places, one or two weeks or more is required; in other places it may take only a few hours. Be sure AFWJ Legal Mini Handbook

43

Chapter 3: Children

British Birth Registration and Passport Requirements Diane Watanabe © 2005

You can download a form and guidance notes from www.uknow.or.jp For a birth registration, provided the mother was born in the UK (or in a few rare cases where she was naturalised in the UK despite being born overseas—you will know if this applies to you), the following original documents (not photocopies) are required (these will be returned): •

Child’s hospital birth certificate or shussho todoke no utsushi issued by the city/ward office. This is obtainable only within the same month as the notification of birth was submitted;

PASSPORT •

Properly sized and signed photos, of course, and, assuming the child was born in Japan, and this is the first passport application:

•

Consular birth certificate (See above for what you need to provide for that. If you are in Eastern Japan, you can submit both birth and passport applications at the same time; for western Japan, you need to get the birth certificate from the Consulate-General in Osaka, then send to Tokyo for the passport.)

OR

•

If applicable, evidence of the termination of any previous marriage of either parent;

•

•

Long-form UK birth certificate showing mother’s details or British Adoption Certificate(s) for the British parent(s), or, if born outside the United Kingdom, documentary evidence of claim to British nationality, e.g. naturalisation or registration (a special kind of naturalisation) certificate;

•

•

A copy of the Family Register (koseki tohon) showing the child’s registration;

•

British parent’s passport.

•

If you wish to anglicise the spelling, add a middle name, or use a double-barreled surname where this is different from the child’s Japanese family register name, a brief statement to confirm the name you wish to have registered, dated and signed by both parents, is required.

44

Mother’s full birth certificate

AND Copy of father’s family register (koseki tohon) showing the child’s registration and bearing the ward office’s stamp, or child’s original city office birth certificate (shussei todoke jyuri shomeisho) and a photocopy of the family register.

AFWJ Legal Mini Handbook

Chapter 3: Children

Establishing US Citizenship for a Child Born Outside US Territories Wandalee Kabira © 2005

To establish US citizenship, the new baby will need a Consular Report of Birth Abroad, and then a first passport and a Social Security number. The Consular Report of Birth Abroad serves both as an English language birth document and as primary evidence of the child’s U.S. citizenship.

Once all the documentation is done, processing time is about three weeks or more, as all passport printing is now done in the US. Many unforeseeable circumstances may occur, so do not make any unchangeable travel plans until you have the child’s passport in hand. The social security card will be sent to you directly from the US in about three to six months.

Who needs to appear at a US embassy or Consulate for the child’s Consular Report of Birth?

Both parents, whether only one or both are US citizens, should apply for the Consular Report of Birth Abroad at their nearest US embassy or consulate. If circumstances do not permit both to appear, then it should be the American citizen parent who applies at the consulate.

The child, even a newborn, must appear in person at the office at the time you make the application.

There are no exceptions or waivers possible on this requirement.

Check for information on whether your child will need a Japanese visa, on information regarding dual nationality, and on details about how to obtain needed documents.

What Documents are Needed?

1. Certificate of Birth Registration (shusshou todoke kisaijiko shomeisho) or the Certificate of Acceptance of Birth (shusshou todoke jyuri shomeisho) containing the child’s name, parents’ names, date and place of child’s birth and seal of the ward or city official. A Japanese Family Register (koseki toAFWJ Legal Mini Handbook

hon) containing the child’s and parents’ names, date and place of child’s birth and seal of city or ward official is also acceptable. A hospital birth certificate is not sufficient.

2. Parent’s or parents’ proof of citizenship is provided only by a certified birth certificate, a Consular Report of Birth, and/or a valid passport.

Non-US citizen parents should also bring their passports.

If the child has at least one biological American citizen parent, the child is most likely an American, too; however, there are special cases. To pass citizenship on to his/her child, an American citizen must have been physically present in the US or its outlying possessions before the birth of the child for a period or periods totaling not less than 5 years, at least two years which were after the age of 14.

3. Proof of Parents’ marriage will require a marriage certificate. If the child was born out-of-wedlock, or within six months of a marriage, there will be additional requirements.

4. Please bring an official divorce or death certificate, if applicable.

What Forms Are Needed? (These may be downloaded from the embassy web site. Call the embassy or consulate for further information.)

1. Application For Consular Report of Birth 2. Affidavit of the Newborn Child’s Name (if the child’s name on the Japanese Birth Certificate and Family Register will differ from the name on the US passport.)

3. US Passport Application 4. Two-Parent Consent for Passport Issuance 5. Social Security Account Application 45

Chapter 3: Children

Other Necessary Items: Two identical passport photos are required. Be careful that the size matches the requirement; color or BW on white background, eyes open.

Self addressed A-4 size envelope with 270 yen stamp. The Consular Report of Birth and Passport will be mailed to you.

Fees at present are 65 dollars for Birth Registration, 70 dollars for the passport for a total of 135 dollars payable in cash in yen or dollars, or by US dollar postal money order.

VISA, MASTERCARD AND AMEX are acceptable. No personal checks.

Remember that the requirements may vary depending on the nationality of the parents and other circumstances. Please contact the nearest consulate to request the latest information and to consult about any factors relating to your situation.

(The above information was obtained in 2004 from the US Consulate, Tokyo, Japan.)

46

AFWJ Legal Mini Handbook

Chapter 3: Children

How to Apply for a Canadian Passport—Child Monica Rankin © 2005 The following is a brief outline of how to apply for a passport for a child under the age of 16.

1) Complete application form PPT 042 including the signatures of both parents. Downloadable versions are available at this link: www.dfait-maeci.gc.ca/ni-ka/passports-en.asp 2) Have the application signed by a guarantor who must live in Japan. If this is not possible, you must complete a Statutory Declaration in Lieu of Guarantor; the fee is CD50.

3) Submit an original document that establishes Canadian citizenship for your child. Documents that establish Canadian nationality are: 1) a birth certificate OR 2) a Canadian citizenship certificate 4) Submit three identical photographs of the child.The guarantor must also certify and sign at least one photo, as explained on the application form.

The current fee for a 24-page Canadian passport for a child up to 3 years of age is CD20. Passports issued to children up to 3 years of age can be made valid only for a maximum of three years. The current fee for a 24-page Canadian passport for a child from 3 through 15 years of age is CD35, and this passport can be made valid for a maximum of five years.

For passport application forms and other related services, contact either 1. Canadian Embassy in Tokyo at 03-5412-6200 www.dfait-maeci.gc.ca/ni-ka/tokyo-en.asp 2. Canadian Consulate General in Osaka at 06-6212-4910 www.dfait-maeci.gc.ca/ni-ka/osaka_contacts-en.asp

AFWJ Legal Mini Handbook

47

Chapter 3: Children

Applying for Canadian Citizenship for a Child Born in Japan Monika Rankin © 2005 Children born abroad to Canadian parents will not be issued a Canadian birth certificate but rather a CCC—Canadian Citizenship Certificate. Applying for one from Japan is easy and quick, and it is possible to do without visiting the embassy or consulate. The process can take up to one year, but once the application is submitted, you can apply for a passport.The first passport will only be valid for one year; however, upon receiving the CCC, it will be extended to the full three years (for those under 3). The following is a list of the necessary documents. For complete details, refer to the web site listed below:

B. Japanese national health insurance card,

w w w. d f a i t - m a e c i . g c . c a / n i - k a / c i t i z e n ship-en.asp#Canadian%20CitizenshipChildren%20Born%20Abroad

For those using a different name than appears on the official Japanese birth registration, a statutory declaration (included on the site) must be prepared and signed.

Completed application form (you can download it from the website above) •

Three photos of the child

•

The prescribed fee of CD75

C residence certificate (juminhyo), D. hospital appointment card (shinsatsuken), E. bank account All Japanese documents must be translated into either English or French BEFORE submission. For those who use a translator, they must sign the affidavit included on the web site. According to the embassy, for those who do not know a third party who can do the translation, documents translated by family members will be accepted.

The following documents are the necessary: •

The child’s official record of birth. It is called shusshou todoke no jyuri shomesho in Japanese, and can be obtained at your city/ward office.

This MUST have the Canadian parent’s name on it.

•

The original of the Canadian parent’s proof of Canadian citizenship, usually a birth certificate

•

Two additional pieces of ID for the child. Any of the following will be approved:

A. Japanese mother baby book (boshi techo), p.1, 48

AFWJ Legal Mini Handbook

Chapter 3: Children

How to Apply for a Mother and Child Handbook (Boshitecho) and Lump-Sum Payment Diane Watanabe © 2005

Congratulations—you’re pregnant! Go to your local health centre (kenko centre), whose details you can get from your local municipal office, and inform them. You will get a Mother and Child Health Handbook (boshitecho) in Japanese, which is a record of various items from pregnancy to delivery, and the necessary vaccinations until the first year of school. Some cities will give out handbooks in foreign languages too, but if not, you can buy your own in English, Chinese, Portuguese, Spanish, Korean, Thai, Indonesian, or Tagalog. They are published by the Mother and Child Health Research Foundation tel: 03-3499-3111 (Japanese only). The books cost 1,000 yen (including tax and delivery charges), and you should pay by postal transfer at the post office. (Account Number 00110-1-54451, Limited Company Mother and Child Health Corporation) Later, your health centre will send you reminders about vaccinations or other useful information. My local one even got me information about local private nurseries and an English-speaking playgroup.

Your husband, or possibly you if you are the main breadwinner and pay taxes here, can claim a birth grant that refunds a large part of the cost of giving birth, although you have to pay the hospital up front.

Refunds depend on the local authorities, but can be up to 300,000 yen (e.g. Kobe). Hospitals charge from about this amount upwards, whether public or private. You may be entitled to extra support if you are a low-income family.

AFWJ Legal Mini Handbook

49

Chapter 3: Children

Dual Nationality / Choice of Nationality Wandalee Kabira © 2005

The following is an English version of information from the Japanese Ministry of Justice (Homusho) concerning dual nationality of someone having Japanese nationality and a foreign nationality. It is for general information purposes only. Prior to making any decision regarding dual nationality, please inquire directly at the nearest municipal or ward office or the nearest Legal Affairs Bureau of the Ministry of Justice. If abroad, please consult the nearest Japanese embassy or consulate.

General Japanese Regulation Concerning Dual Nationality A Japanese national having also a foreign nationality (a person of dual nationality) shall choose either of the nationalities before he or she reaches twenty-two years of age (or within two years after the day when he or she acquired the second nationality, if he or she acquired such nationality after the day when he or she reached twenty years of age).

If he or she fails to choose either of the nationalities, he or she may lose Japanese nationality. Please remember to follow the procedures for choice of nationality. Consider this issue carefully.

Who Must Choose a Nationality?

The following are five examples of the acquisition of dual nationality.

A. The person who was born of a mother having Japanese nationality and a father having a nationality of a foreign country (e.g. Arab Republic of Egypt) that adopts the “principle of paternal blood” (the principle which entitles one to the nationality of his or her natural father) as the rule of nationality.

B. The person who was born of a father or a mother having Japanese nationality and another par50

ent having a nationality of a foreign country (e.g.

France) which adopts the “principle of both-parental blood” (the principle which entitles one to the nationalities of both of his or her natural parents) as the rule of nationality.

C. The person who is born of a father or a mother (or parents) having Japanese nationality, in the foreign country (e.g. the United States of America) that adopts the “principle of birthplace” (the principle which entitles one to the nationality of a country where he or she was born) as the rule of nationality.

D. A Japanese national who has acquired a foreign nationality as the result of the acknowledgement (declaration of paternity) by a father of a foreign nationality (e.g. Canada), the adoption by a person of foreign nationality (e.g. Italy) or the marriage to a person of a foreign nationality (e.g.

Iran), etc.

E. The person who still possesses a foreign nationality after acquiring Japanese nationality by naturalization or a notification of acquisition of nationality.

How to Choose Your Nationality Below are listed methods for declaring a single nationality. When the time comes to choose one nationality, think carefully and then make your decision by one of the following methods.

A. In the Case Where You Choose Japanese Nationality 1. Method of Renouncing or Abandoning Your Foreign Nationality In the case where you have renounced the foreign nationality in accordance with the laws of that foreign country, you are required to submit a notifiAFWJ Legal Mini Handbook

Chapter 3: Children

cation of loss of foreign nationality accompanied by a document proving the loss of nationality to your municipal office if you live in Japan or to the embassy or consulate of Japan if you live abroad.

For further details of the procedure for renouncing the foreign nationality, please make an inquiry to the government office, the embassy or consulate of the foreign country concerned. Consult also your local municipal office concerning the necessity of these procedures in your case.

tionality shall be made differs in accordance with the time when you have become a dual national.

2. Method of Making a Declaration to Choose Japanese Nationality

If you were 20 years or older on January 1, 1985, it is assumed that you chose Japanese nationality.

At your municipal office or at a Japanese embassy or consulate abroad if you live abroad, you are required to submit a notification of a declaration to choose Japanese nationality, in which you swear that you choose to be a Japanese national and that you renounce the foreign nationality (kokuseki sentaku todokede)

2. For Japanese citizens who became dual nationals on or after January 1, 1985:

B. In the Case Where You Choose the Foreign Nationality 1. Method of Renouncing Japanese Nationality Submit a notification of renouncing Japanese nationality (kokuseki ridatsu todokede) accompanied by a copy of your family register (koseki tohon), a document proving your domicile (juminhyo), and a document proving that you possess the foreign nationality (passport ) to the Legal Affairs Bureau Office with jurisdiction over your area, or at the District Legal Affairs Office (Chiho Homukyoku) with jurisdiction over your area if you live in Japan or at the embassy or consulate of Japan if you live abroad.

2. Method of Choosing the Foreign Nationality If you have chosen the foreign nationality in accordance with the laws of the foreign country concerned, then submit a notification of loss of Japanese nationality accompanied by a document proving that you have chosen the foreign nationality to your municipal office if you live in Japan or to the embassy or consulate of Japan if you live abroad.

THE PERIOD WITHIN WHICH YOU MUST CHOOSE YOUR NATIONALITY The period of time within which the choice of naAFWJ Legal Mini Handbook

The following time periods apply: 1. For Japanese citizens who became dual citizens before January 1, 1985 (i.e. before the change in the Nationality Law was enacted): If you were under 20 years old on January 1, 1985, choose by your 22nd birthday.

If you have become of dual nationality before the day when you reach 20 years of age, then the choice of nationality shall be made before you reach 22 years of age.

If you have become of dual nationality on or after the day when you reach 20 years of age, then the choice of nationality shall be made within two years after the day when you acquired the second nationality.

NOTE: If you fail to make the choice of nationality within the above stated periods of time, you may be required by the Ministry of Justice to choose one of the nationalities you possess, and in some cases, you may lose your Japanese nationality.

NOTE: It is illegal for Japanese with dual nationality to enter or depart from Japan on anything other than a Japanese passport or Japanese travel document. A dual national must never enter or depart Japan on his/her “other” (foreign) passport.

Such action can be viewed as attempting to pass as non-Japanese; remember that entry and departure stamps, for example 90 day temporary visitor visas, are recorded. Be warned here.

This warning applies in other countries also. Dual nationals must remember always to use the “other” passport when entering and departing the country of the “other” nationality. For example, it is illegal for US dual nationals not to use a US passport when entering or departing the US. The immigration officials then at airport immigration booths will generally ask to see both passports to verify the departure and entry stamps.

51

Chapter 4: Legal, Illegal, and Useful

Chapter 4 Legal, Illegal and Useful

52

AFWJ Legal Mini Handbook

Chapter 4: Legal, Illegal, and Useful

Guidance for Foreign Nationals Arrested in Japan Diane Watanabe © 2005

INTRODUCTION

- give you a list of local English-speaking lawyers;

Japan is an independent, sovereign country. The government has the internationally recognized right to make and enforce laws within its own borders, and to try foreigners as well as its own nationals within its territory. Anyone who breaks the law in Japan is, therefore, subject to prosecution under the Japanese legal system. If a person is convicted and sentenced to imprisonment by a Japanese court, this sentence will be served in a Japanese prison. Japan has recently signed on to an international agreement on the transfer of prisoners that allows certain prisoners serving medium to long sentences to go and serve most of their sentence in their home country. Other signatories include the US, Australia and several European countries.

- deal with local authorities if necessary to ensure that your rights under Japanese law are fully observed and help bridge any communication gaps between you and your jailers;

THE CONSUL’S ROLE Embassies can, within certain limits, offer assistance to foreign nationals arrested in Japan but the level of service differs from country to country.

Despite what you may have heard, your embassy cannot get you out of jail, accept custody of you or guarantee your appearance in court. Nor can they post bail for you, act as your legal advisor, investigate your case or pay legal fees for you.

Embassies offer a greater or lesser service: as a guide, this is what the British Embassy can offer.

Australian, US, Canadian, Philippine and French offer a broadly similar services as does South Africa within the Tokyo area. The Chinese Embassy will send newspapers and make annual visits.

What the embassy/consulates can do is: - visit you in jail when notified of your arrest to check on your health and the treatment accorded you by the police;

AFWJ Legal Mini Handbook

- make representations about any mistreatment or abuse of British prisoners if requested to do so; - notify your family and friends of your arrest and relay requests for financial assistance, provided you authorize them to do so.

INITIAL ARREST Under Japanese law, you may be arrested and detained without bail for 48 hours by the police on suspicion of having committed a crime. During this period, the police are required to inform you of the crime of which you are suspected, of your right to remain silent (though this may be held against you as “non-cooperation”), of your right to hire a lawyer at your own expense and of your right to have the embassy notified of your arrest.

If an arrestee is unable to hire a lawyer, he or she is not entitled to receive a court-appointed lawyer until after indictment. Consequently, the police usually begin their initial questioning before you see a lawyer. In Japan, a lawyer is not allowed to be present whilst you are being questioned. In most prefectures local lawyers operate a voluntary “duty lawyer” system whereby one will visit you, on a roster basis, soon after your arrest. Ask for the “toban bengoshi.” Lawyers will visit with an interpreter when required.

If the police believe they have enough evidence to detain you, they must present this evidence to a public prosecutor within the initial 48-hour detention period. The prisoner appears before the prosecutor when the police present the evidence.

53

Chapter 4: Legal, Illegal, and Useful

If the prosecutor concurs, he/she must then obtain a warrant of detention from a judge within 24 hours. Again, the prisoner would appear before the judge when the warrant is requested. A case could be dropped at either of these stages for lack of evidence. For minor offences, a sincere apology and offer of reparation to any victim of the crime will often lead to an early release. Any charge, however trivial, which is denied usually leads to indictment and a period of detention whilst the police fully investigate the circumstances. Most Japanese employers, particularly the English language schools, will drop you like a hotcake at this stage regardless of whether the arrest is justified or not.

BAIL Bail is the exception rather than the rule in Japan and is virtually unheard of for foreigners. If you are arrested in Japan, you will in all likelihood remain in custody until you are indicted or released.

However, as a foreign spouse of a Japanese national, if your husband acts as guarantor and the offence is minor, you have a chance of bail, especially if you have children to care for or have been resident for many years. Suspects are usually kept at the police station where they were arrested or a local detention center, and generally eat the same Japanese-style food as the other prisoners.

UNDER INVESTIGATION: THE NEXT 20 DAYS If the judge agrees there is probable cause to believe a crime has been committed, the court will issue an initial 10-day detention order to permit the police to continue their investigation. At the end of this 10-day period, the prosecutor can request a second 10-day detention period to continue the investigation further. The prisoner will normally appear before the judge at each of these hearings and may be asked to testify on his/her own behalf. During this period prisoners may be permitted to have visitors and write letters at the prosecutor’s discretion, but probably will not be allowed to do so other than contact with the Embassy and their lawyer.

At the end of this 20-day detention period, the prosecutor must either ask the court for a formal indictment or release the prisoner. An indictment could be sought sooner if enough evidence is readily available or the prisoner could be released 54

sooner if adequate evidence is not forthcoming. A confession and apology are usually considered sufficient evidence in the absence of any contra-indications. After indictment, the prisoner will be allowed to write/receive letters and receive visitors (see “visiting” below).

COMPENSATION FOR WRONGFUL DETENTION The public prosecutor may authorize compensation for someone detained but released without indictment, but it is extremely rare. A person suffering damages from mistakes by the police or the prosecutor has the right to sue for compensation from the prefectural government having jurisdiction over the police or prosecutor involved, but such an action will usually drag on for a very long time.

INDICTMENT If the prosecutor believes there is sufficient evidence, the suspect will be brought before a judge again and formally indicted (charged with the crime). Prosecutors in Japan generally do not take a case to trial unless they are convinced they can win, and about a quarter of all cases are dropped prior to indictment. However, after indictment, the conviction rate in Japan is over 99%. If indicted, the defendant is transferred to the regional Detention Prison where he/she will be held for the duration of the trial. Any confession is usually central to the prosecutor’s case.

TRIAL There is no trial by jury; instead, cases are tried by a panel of three judges. Individual court sessions usually last for an hour or two. If the case is not finished within the allotted time, another date— anywhere from several days to several weeks later—is fixed for the next hearing. Depending on the complexity of the case, a trial could last for many months. If a suspect pleads guilty for a minor offence, the trial could be resolved in just one hearing.

LAWYERS If the detainee is prosecuted and is unable or unwilling to engage a private lawyer, a court lawyer is appointed. The cost of the court-appointed lawyer and court interpreter is usually met by the JapAFWJ Legal Mini Handbook

Chapter 4: Legal, Illegal, and Useful

anese Government, but this is at the discretion of the judge and he may make the defendant liable to pay court costs. A private lawyer will generally cost at least 300,000 yen per charge. It should be stressed that this is an estimate only and the minimum likely to be charged. It may increase depending on the number of visits made by the lawyer to the accused before trial, the number of appearances in court, and the amount of work involved. Lawyers rarely speak English, even less so other languages, but will hire an interpreter if necessary.

In my experience, having a private lawyer will usually make little difference to the outcome of the trial if the accused has admitted his guilt, although he will have more information and advice as he goes along. A private lawyer may undertake to negotiate a settlement with a victim of e.g. a fight, to prevent the case coming to court. Court-appointed lawyers are private lawyers who have been tasked with defending a client. There could be a delay of up to two months between indictment and the start of the trial if a busy lawyer tries to clear his/her calendar of private clients before starting the court-appointed case. A court appointed lawyer normally examines all of the records and evidence assembled by the police before meeting with the client, and then visits the accused once, about a week or so before the first court appearance. If necessary, the lawyer will bring an interpreter for the interview with the accused.

TRIAL PROCEEDINGS A trial will typically begin by identifying the defendant and reading the charges against him/her.

The defendant will be advised of the right to remain silent and to refuse to answer individual questions. The defendant will be given an opportunity to make a statement about the charges but warned that the statement could be used against him/her. The defendant then enters a plea. Following this the lawyer makes the opening statement for the defense followed by the prosecutor’s opening statement.

If the case is complex, subsequent sessions will be held for the prosecutor and the defense to present further evidence. Further hearings will last 30 minutes or one hour, and are set usually about one month apart—so a trial requiring five hearings AFWJ Legal Mini Handbook

could take six months or more to complete. After all the evidence is presented, the prosecutor and the defense make their closing arguments. The judges will then set a date to render their judgment and sentence. Even with a guilty plea, a trial will consist of a minimum of two sessions except for very trivial offences. Prisoners normally receive credit for a large part of the time served prior to the conviction, but there is no automatic right to this. You may have all the time spent on remand knocked off, or none.

SENTENCING Under Japanese law, if the judges have a reasonable doubt as to the defendant’s guilt they are obliged to render a verdict of innocent. If found innocent, the defendant must be compensated for his detention by the Japanese Government.

If found guilty of a relatively minor offence, one may receive a suspended sentence (suspended for one to five years). This is possible if the sentence to be suspended is less than three years in prison or a fine less than 200,000 yen, and at least five years have elapsed since the completion or remission of any previous sentence. If an individual receiving a suspended sentence were convicted of no other offences in Japan during the time of suspension, the original sentence would be remitted. If, however, they were to commit another offence in Japan during the time of suspension, they would have to serve both the initial sentence and the new sentence. Those receiving ordinary, non-suspended sentences will serve their sentence or pay their fine in Japan. Those receiving suspended sentences or fines will usually be deported (see “deportation” below).

FINES If a sentence includes a fine as well as imprisonment, the prisoner will be detained until the fine is paid. Fines are usually to be paid within one month of sentencing although extensions or installment payments can be negotiated with the prosecutor’s office. If prisoners are unable to pay the fine, they will have to serve extra time at a rate of one day’s extra imprisonment for each 5,000 yen of the fine, or a lucky few at one day per 10,000 yen.

55

Chapter 4: Legal, Illegal, and Useful

PRISON Prison sentences are to be spent in prison with hard labor (working Monday to Friday in a prison factory, usually on repetitive jobs such as packaging, sewing or putting parts together. Prisoners receive a nominal wage which rises with good behavior/ability) and often have a fine as well. Foreign nationals are almost always held at one of the prisons with staff and facilities to cope with non-Japanese speakers: Fuchu (men) and Tochigi (women) in eastern Japan and Osaka (men) and Wakayama (women) for western Japan. Prisons are very strict in Japan. Prisoners must wear uniforms, work, and are normally not allowed to speak except at designated break times. Prisoners are ranked and earn privileges such as visits according to rank, starting with being allowed to write one letter and have one visit per month. Infringement of the many prison rules may lead to periods of solitary confinement and demotion to a lower rank with consequent loss of privileges.

Foreign prisoners are usually housed in single cells with TV, radio, sink and toilet, though TV may only be viewed at certain times and certain programs. Baths are communal.

PAROLE/PRISONER TRANSFER/DEPORTATION Japan has recently signed on to an international agreement on the transfer of prisoners that allows certain prisoners serving medium to long sentences to go and serve most of their sentence on their home country. Other signatories include the US, Australia and several European countries. Prisoners must have served one-third of their sentence and paid off any fine before transfer, and must have at least six months remaining of their sentence. Upon transfer, their parole and other terms are subject to their own country’s prison rules.

If a prisoner is not a national of a signatory nation to the prisoner transfer agreement, or chooses not to apply for transfer, then he will be considered for parole. He must have served at least 60% of his sentence (50% in the case of compassionate circumstances such as terminal illness) for the prison to apply for parole on his behalf, and must have had generally good behavior, shown remorse for his crime and be considered likely to rehabilitate in the outside world. Prison officials discuss 56

suitability for parole on several occasions during the sentencing but do not make the decision, only a recommendation to the external parole board.

If approved, it takes usually three to four months from application to release.

After conviction or when the appropriate prison sentence has been served, if an individual has strong ties to Japan and a valid visa status, then he/she may be allowed to remain in Japan if a Japanese national acts as his/her sponsor with the Immigration Authorities. Those without strong ties to Japan and whose visa status has expired would be deported to their home country after their conviction. Deportation from Japan is at the deportee’s own expense. You can only be deported to a third country (i.e. other than your home country) if you have the right to reside there (usually as a dual national) or if the authorities of that country have given permission for you to be deported there—unsurprisingly, very few countries will even consider accepting foreign deportees, and if you have been convicted of a drugs offence many will not even allow you to transit their airport.

APPEALS After conviction in the court of first instance, a prisoner has two weeks in which to submit a written request for an appeal (koso). After receiving a request for an appeal, the court will set a deadline for the defendant and his/her lawyer to submit a formal statement (koso-shuisho) of the basis for the appeal to the Higher Court in Tokyo. In a koso appeal, the Higher Court will re-examine the facts of the case to determine if they support the verdict.

One can also request a jyoukoku appeal to the Supreme Court in which the application of laws and procedures in the lower court decision are considered, rather than the facts of the case.

The prosecution too has the right to appeal a sentence if they believe it was too lenient or too harsh, or that the defendant should not have been found innocent. If the defendant appeals, the High Court will not impose a higher sentence. If the prosecutor appeals, the High Court could increase the sentence.

The High Court has the power to reverse a lower court decision, alter the sentence, or return the case to a lower court for retrial. Only rarely will a sentence be reduced. High Court decisions AFWJ Legal Mini Handbook

Chapter 4: Legal, Illegal, and Useful

may also be appealed to Japan’s Supreme Court if questions of constitutional law are involved. As with the initial sentence, a prisoner would normally receive partial credit for time served during the appeal process. The amount of credit given for the time served is entirely at the discretion of the judge. Since appeals take a long time (five-nine months on average, sometimes over a year) and time spent on remand cannot be counted towards parole, only those with a very strong case and a sentence longer than six-seven years are likely to have any chance of making an appeal worthwhile.

Discuss this carefully with your lawyer.

There are eight High Courts in Japan: Tokyo (for the Kanto area), Nagoya (for the Chubu area), Osaka (for the Kansai), Fukuoka (for Kyushu and Okinawa), Hiroshima (for Chugoku), Takamatsu (for Shikoku), Sendai (for Tohoku) and Sapporo (for Hokkaido). Prisoners lodging an appeal are held at the Detention Prison nearest the High Court hearing the appeal, which may involve a transfer from one Detention Prison to another.

VISITING The visiting procedure is broadly the same whether at police stations, detention centers or prisons.

After initial arrest: usually visitors are not allowed until after indictment. After indictment and before sentence is confirmed (two weeks after the sentencing date): one visit per working day. After conviction: one visit per month to start with, working up the ranks to two visits after approximately seven months and eventually unlimited, though you wouldn’t want to be in prison long enough to earn this level! After conviction the prisoner is only allowed to receive visits and letters from members of his family, up to first cousins. Fiancees are permitted but not girlfriends. The prisoner must provide a list of these people on entry to the prison and all letters or visit requests will be checked against this list.

A prisoner may have up to three visitors together at the visit. A police/prison officer will sit in on the visits (except for consular visits from certain countries, and lawyer’s visits). They have the right to know everything that passes, so the visit must normally be conducted in Japanese. If you, the visitor, or the prisoner does not speak Japanese, you must usually arrange for an interpretAFWJ Legal Mini Handbook

er (though some major police stations, detention centers or prisons may have English-speaking staff willing to sit in). Consult in advance about the level of interpreting required—some will allow you or a friend to interpret, others require a certified interpreter. You will need to complete an application form in Japanese on arrival at the center, and wait often up to an hour or so for the visit. Visits take place in a small room divided by a heavy glass screen, perforated to allow sound to get through.

The prisoner and a warder will sit on one side of the glass screen and visitors on the other. You will not be allowed to touch. Visits last a maximum of 30 minutes but very often are limited unofficially to 15, especially at busy times. Try to go first thing in the morning. Visiting hours vary but are likely to be 8:30-11:00 and 1:00 to 4:00 p.m. on working weekdays. You may take limited items to hand in to prisoners—money and books for all prisoners, and for those on remand reasonable amount of clothing (no belts, ties or cords permitted, to avoid risk of hanging) and small items such as snacks, writing paper or shampoo from the detention center shop only. You will not be allowed to hand in any toiletries, medicines or food for prisoners (to avoid any risk of the prisoner being offered poisoned items).

Letters—all are read by the staff and the contents noted. Letters not in Japanese will be translated— some places can handle English (it goes without saying that brief letters, clearly written and avoiding slang, are likely to be quicker to check). Otherwise they may be sent to a regional center for translating and take one-three weeks to get to the prisoner. Any mention of the crime, or unsuitable material, may be censored, though the prisoner will be informed of this. Letters should be written on one side of the paper only, ideally, and a maximum of seven pages long. Prisoners may receive any amount of letters but after conviction can send out only one per month, and only receive from/write to family members, their Consul or their lawyer for any ongoing cases.

57

Chapter 4: Legal, Illegal, and Useful

Neighborhood Associations— Local Self-Government (Chounaikai / Jichikai) Wandalee Kabira © 2005

Voluntary neighborhood resident organizations are generally found throughout Japan. In some areas they are called chounaikai, and jichikai in other communities. Large apartment/mansion complexes may have their own building associations that function as resident associations.

These associations have long histories dating to before World War II, called the Pacific War in Japan. The purpose of these associations is to improve local communities and to promote communication between the residents and the local municipal office.

sociation officer or the person performing a duty with you. Give notification of any long absence from your house or apartment.

The circulating clipboard (kairanban) distributes information of the association and neighborhood activities. On the clipboard, the municipal office will include information necessary for everyday life in the community. Check or circle your name on the list and pass the clipboard to your nextdoor neighbor as soon as possible.

Residents pay small annual dues as members of the neighborhood association. Annual collections may be made for community charity drives.

Activities such as athletic games, holiday events, and local festivals promote friendship among residents. Activities such as cleaning trash from public areas and taking turns to clean the trash collection points and streets improve the community.

In some parts of Japan, the associations will be involved in community activities that promote temple/shrine deities of the local area.

Leadership roles are rotated among the residents, and positive participation in these roles and activities may promote better relationships among neighbors. By supporting the efforts of the local neighborhood association, foreign residents become welcome members of the community.

If you are for some reason unable to participate, it is important to inform in advance either the as58

AFWJ Legal Mini Handbook

Chapter 5: Wills, Death, and Inheritance

Chapter 5 Wills, Death and Inheritance

AFWJ Legal Mini Handbook

59

Chapter 5: Wills, Death, and Inheritance

Matters of Inheritance in Japan Wandalee Kabira © 2005 The following information is only a general guide, and readers are advised to contact their nearest tax office for updates and revisions made after this publication. In all specific cases, please seek advice from the local tax office, local tax attorney, or the tax section of the local municipal office. Remember “case by case.”

The general framework within which Japan views matters of inheritance (souzoku) is that individual heirs are required to pay inheritance tax (souzoku zei) whereas in many other countries, the basic principle is that the “estate” of the decedent will be taxed.

The following general information applies of course to all Japanese nationals and to any foreigner defined as a resident of Japan for inheritance purposes or to a foreigner with property located in Japan.

General Inheritance Regulations (Civil Law Article 900) Who cannot legally inherit?

1. One who kills the person to be succeeded to 2. One who forges a will to his or her own benefit 3. One taking illegal action toward the person to be succeeded to Who can legally inherit?

When a spouse dies without leaving a will (isho or yuigonsho), legally one-half of the inheritance goes to the surviving spouse and one-half to the children. Several children, in principle, will inherit equally divided shares of the one-half portion.

(A child/children who provided more support or care to a parent may receive a bigger share if this is agreed among the heirs or designated in a written will. Best to be decided before the parent’s death 60

with written agreement signed by heirs and parent.)

An illegitimate child/children legally recognized (placed on family register (koseki) prior to the father’s death inherits one-half share of the legitimate child’s/children’s share. The share of a half sibling is one-half that of a sibling.

When there are no children, the heirs are the spouse and the direct ascendants (deceased’s parents) with two-thirds to the spouse and one-third to the direct ascendants. When there are no children and no direct ascendants living, the spouse and the deceased’s siblings divide the inheritance with three-fourths to the spouse and one-fourth divided equally among the siblings. An unborn child can inherit from a deceased parent.

In cases of adopted children (youshi) as heirs, if there are no blood-heir children, then not more than two adopted children will be eligible for the children’s inheritance portion. If there are bloodheir children/child, then not more than one adopted child is eligible for the children’s inheritance portion. Perhaps such matters can be changed by the parent’s written/notarized will (yuigonsho) designating the decision concerning inheritance matters of his/her children.

General Matters Where a will exists, inheritance is made as it decrees. However, when one indicates in a will, for example, that he or she wishes to leave all assets, for example, to a religious or charitable organization, denying spouse and/or children their inheritance, then the spouse and/or children can act through the Family Court (katei saibansho) to have some portions reserved for them (an action called iryuubun). If they do not claim such within a year, they lose their right of claim.

Note that when a special beneficiary/heir is beAFWJ Legal Mini Handbook

Chapter 5: Wills, Death, and Inheritance

queathed more than a normal heir in the inheritance division, then the heirs can contest the will to protect their rights as heirs. Remember how important it is for both spouses to have a will and best to have a signed, notarized inheritance agreement among all potential heirs in order to avoid any inheritance problems within the family.

In Japan, inheritance is processed in accordance with the laws of the deceased’s country. That is, the Japanese Court will apply the laws of the foreign decedent’s country to matters involving the proving of the will and determining the extent of a foreign executor’s authority over assets in Japan.

However, in matters of inheritance tax, the heirs may be subject to Japanese laws. When a Japanese national also holds another nationality at time of death (dual nationality), the inheritance is processed under Japanese law.

The inheritance tax must be filed (shinkoku) and paid within ten months of the day after the death of the decedent. If the tax due is over a certain amount, the heirs may arrange with the tax office to pay in installments, with some extra fees then involved.

Calculating the Inheritance Tax Japan has both an inheritance tax (souzoku zei) and a gift tax (zouyo zei) both provided for in the Inheritance Tax Law. Taxes are assessed on the beneficiary and not on the estate. At present, there is a basic estate (isan) tax deduction of 50 million yen plus 10 million per heir. Thus in case there are three heirs, for example, the basic deduction will be 80 million.

Note that proof of any agreement on inheritance among potential heirs may be required with other documents. There are also special deductions in cases of minor children or handicapped heirs.

Assets which are NOT taxable include: graves, religious articles (butsudan, etc.) contributions to government (kifu seisan) or to a special juridical body (koeki hojin), life insurance up to five million yen times the number of heirs, and death severance payment up to five million yen times the number of heirs. Special regulations may cover these insurance and severance items; consult with the tax office.

Even though as stated before, the law of the home AFWJ Legal Mini Handbook

country of the decedent takes precedence in the processing of inheritance, it is also true that a foreign resident who is “domiciled” in Japan according to the inheritance tax regulations at the time of the acquisition of the inheritance or gift will be subject to the laws of Japan with regard to inheritance taxation and will be taxed for all property/assets acquired whether located in Japan or abroad. Such a person is defined as an “unlimited taxpayer.” One who is not domiciled in Japan at the time of acquisition of the inheritance or gift is defined as a “limited taxpayer,” and will have to pay inheritance taxes only on inherited property/ assets located in Japan. The definition of domicile for inheritance tax purposes means that the taxpayer is based in Japan or that the “principal base of the taxpayer’s livelihood” is Japan.

(This is different from the definition for income taxes purposes. A foreigner with continuous residence in Japan for five years or longer is considered a permanent resident for income tax purposes, regardless of his/her immigration status of residence, and all income derived from Japan or from abroad is taxable in Japan. A foreigner living here for more than one year but less than five years is a “non-permanent resident” for income tax purposes and in principle his/her income is taxable in Japan only when it is from sources in Japan.)

Double Taxation Issues of double taxation will arise in the case of an “unlimited taxpayer” foreign resident in Japan who is a citizen of a country which follows the basic principle of taxing the estate of the decedent and not the inheritance. For example, any property or assets belonging to a decedent living in Japan who was either a US citizen or a US resident and which are located within the US or abroad would be taxable under the US estate tax system.

An executor of an estate (property or assets) located anywhere in the world of a US citizen or US resident decedent must file a federal estate tax return if the value of the gross estate at the time of death is more than the certain sum allowed. Remember also that the spousal deduction/postponement on federal estate taxes in US is not available if the US citizen spouse is married to a non-US citizen spouse (i.e. Japanese spouse). US citizen foreign spouses of Japanese should be aware of the possi61

Chapter 5: Wills, Death, and Inheritance

ble implications of this US regulation.

In addition, any property or assets located in the US and owned by a non-US citizen or non-resident would also be subject to US estate tax. There are very low basic deductions when the decedent was neither a resident nor a citizen of US; the executor must file a US estate tax return concerning any decedent-owned property over the basic deduction level and which is located in US. Therefore, Japanese citizens must take note when owning property or assets in US, since their heirs may be liable for US estate taxes.

Information on US federal and state estate tax regulations is found by contacting the American Center in Tokyo (03-3436-0901-05).

Citizens of other countries who reside in Japan would do well to consult their embassy or consulate concerning the inheritance or estate laws of their country. Forewarned is forearmed.

The processing of inheritance from abroad to Japanese or to foreign nationals residing in Japan OR inheritance from Japan to foreigners residing abroad or in Japan can be a complicated process, and decisions on foreign law or Japanese law in these matters vary from case to case. Efforts are made to deal with conflicting tax principles of two or in some cases three countries. Estate and gift tax treaties between Japan and various countries have been concluded. Unfortunately, the estate

or inheritor of a foreign decedent who is domiciled in Japan may pay a significant amount of tax to both Japan and to the foreign country in cases where the estate exceeds the deductible limit. So there is some advantage here to low amounts of property and assets.

Persons with specific questions with regard to inheritance tax regulations are advised to consult both the Japanese tax office (zeimusho), their embassy/consulate, and a specialist in private international law. One may significantly lower the burden of inheritance or estate taxes by wisely dealing with property/assets before the need arises and when it will be too late. It is always best to have the help of a fluent interpreter when contacting the Japanese tax offices if you do not speak fluent Japanese.

It is interesting to see the lowering of previous progressive inheritance taxes in Japan. In 1997 for example, the tax rates ranged from 10% on taxable assets of up to eight million yen and then up to 70% on taxable assets totaling more than two billion yen. Now in 2004, we see that the rates are 10% up to 10 million yen and the highest is only 50% on taxable assets totaling more than 300 billion yen and only 40% on those between 100-300 billion yen. Quite a change.

TAX RATE CHART Taxable Amount of Inheritance

Rate

Below 10 million yen

10%

Below 30 million yen

15%

500,000 yen

Below 50 million yen

20%

2 million yen

Below 100 million (ichi oku) yen

30%

7 million yen

Below 300 million (san oku) yen

40%

17 million yen

Over 300 million yen

50%

47 million yen

62

Additional Deduction

AFWJ Legal Mini Handbook

Chapter 5: Wills, Death, and Inheritance

EXAMPLE (Three inheritors = spouse and two children) Total assets of decedent = 180,000,000 yen 1. Calculate taxable inheritance Basic deduction ( 50 million plus 10 million for each heir ) = 80 million Total taxable amount of inheritance = 100 million (180 million minus 80 million basic deduction) 2. Calculate basic inheritance tax a. Spouse’s share (1/2 ) = 50 million 50 million yen x 20% = 10 million yen minus special deduction of 2 million yen = 8 million yen (spouse’s share of inheritance tax) b. Each child’s share (1/4) = 25 million yen 25 million yen x 15 % = 3,750,000 yen minus special deduction of 500,000 yen = 3,250,000 (each child’s share of inheritance tax) ***Total inheritance tax due ?—8,000,000 yen (spouse share) plus 6,500,000 yen (two children’s share) = 14,500,000 yen, the total inheritance tax due.

3. Division of inheritance tax payment a. Spouse portion = 14,500,000 yen divided 1/2?—7,250,000 yen b. child’s portion = 14,500,000 yen divided 1/4?—3,625,000 yen from each child 4. Special calculation for spouse {14,500,000 yen (total inheritance tax due) multiplied by 90,000,000 yen (spouse’s share of decedent’s assets) divided by 180,000,000 yen (total decedent’s assets)} subtract 7,250,000 yen (spouse’s portion of inheritance tax) and spouse’s inheritance tax payment = 0

AFWJ Legal Mini Handbook

63

Chapter 5: Wills, Death, and Inheritance

Making a Will in Japan: Planning for Your Future Wandalee Kabira © 2005 The old proverb comes to mind, “A stitch in time, saves nine,” and certainly, making a will now may prevent many future difficulties for you and members of your family. In cases where a spouse dies, or where both spouses die suddenly, then answers to the sample questions listed below are necessary.

Your answers to these questions may be created in the process of making your will (yuigon). *What financial resources are available? (savings, insurance policies, company bereavement payments, pensions, real estate, etc.) *How will funeral expenses, hospital fees, debts, inheritance taxes, current living expenses be paid? *Is your family aware of your wishes for funeral arrangements and burial here or abroad? * Do you and your family clearly know the wishes of your spouse for funeral and burial? * Who would be a trustworthy and capable executor and advisor for you or your family? * In the case of children in the family, who would be their caretaker if they are young or unable to care for themselves? * Who will be their legal guardian? * If you have a bank account or property abroad, do you have a will written under that country’s laws and with an executor living there? *Do you have a clear and complete list of all financial matters, including location and numbers of all bank accounts, registration or ownership papers for all real estate, social security numbers, nenkin papers, other pension papers, stocks, bonds, and other investments, loans/debts, your health and life insurance papers, employment benefits and contract, etc. and last, a copy of your will given to your designated executor? * Are all these papers and records in a safe and eas64

ily accessible place that is known to a trusted person?

Take a few minutes this week to review your present financial record keeping system and to discuss your answers to the above questions with your family and, perhaps, a person trusted by the family. Spouses should keep original or Photostat copies of their wills; certificates of birth, death, marriage, divorce; deeds, loans, contracts, and insurance policies; naturalization and adoption papers; as well as bills of sale and other important papers all safely but readily available. Keep each other informed about places of work and names of immediate supervisors. Both spouses should also know each others’ social security, pension, health insurance, life insurance, and passport numbers.

In view of today’s medical technology, it is necessary to prepare a medical “living will” and give copies of it to your family members, and also designate a person to make medical decisions for you should you become unable to make them for yourself. Then, definitely discuss your living will decisions with this person and with your family.

The following information provides only a general introduction to the process of making a will (yuigon) here in Japan. For specifics in your case, consult a trusted lawyer. A will covers the disposal of property and effects, handling of inheritance, and designation of heirs and their status of inheritance.

Making a will may be less common in Japan than in some Western countries, and a Japanese spouse may complain that the foreign spouse who urges that a will be made is actually wishing for his/ her death. Strategic planning, delicate action, and cheerful persistence may help to meet the goal of planning mutually for the family future.

A will in Japan should be drawn up by someone familiar with the tax and inheritance regulations AFWJ Legal Mini Handbook

Chapter 5: Wills, Death, and Inheritance

here, and should be updated with any changes in family or financial situations. To be eligible to make a will, one must be 15 years of age or older and regarded as competent under the law. In Japan, spouses may not make a joint will.

The three most common types of will in Japan are as follows: I. That written by the testator himself or herself.

(Most contested type of will) This has the advantage of keeping the contents secret. The disadvantages are: first, that it is written without legal counsel and may not be in proper legal form; second, that it may not be found after the testator’s death; and third, that its authenticity may be suspect. This type of will cannot be typed or tape-recorded, but may be handwritten in any form; it is, however, invalid without the date, signature and legally registered seal (jitsuin) on it. It is important after the death of the testator that such a will be taken immediately to the Family Court where it will be opened in the presence of the heirs after the process of inspection and recognition (ken’in), and if the heirs agree that it is the true will, and agree to abide by its provision, no trouble occurs. According to statistics, this kind of will has provided the most controversy among inheritance cases appearing in Family Court.

If such a will is written on more than one page, it should have the registered seal affixed in the folds of all papers concerned. It should be sealed with a written notice on the outside of the envelope that it is the testator’s last will, and after the death of the testator, it can be submitted unopened to the Family Court. Additions, erasures, or revisions must be signed, sealed with the registered seal, and dated.

II. That written in secret document form (himitsu shousho) (a recommended type) This is written by a person wishing the will’s contents to remain secret until after death. Such a will is written according to the rules above, and then must be taken unopened to a notary public (koushounin) and notarized with the testator’s registered seal and those of two witnesses (shounin).

After the death of the testator, this will can be taken to the Family Court for inspection and recognition.

AFWJ Legal Mini Handbook

III. That written in the form of a public document (kousei shousho) This is the safest, most accurate and most convenient, needing no inspection and recognition in the Family Court, but inconvenient to revise as circumstances change.

To make such a “public document” will: a) Prepare a will following the sample form below. b) Appear with the will and two witnesses before a notary public. c) Discuss the will contents in the presence of the witnesses and notary. d) Have the notary read the will to witnesses and testator. e) Have the testator and witnesses recognize the written will as accurate. f) Have the notary sign and seal the will. The sealed, signed will then may be left with the notary public and copies given to the executor and testator. It may then be kept in a safe place designated by the testator.

The following documents are generally required for filing this type of will: A Japanese language sample will written by the testator, family register (koseki tohon), registered seal and certificate (jitsuin, inkan shomeisho), certificate of evaluation of fixed assets (kotei shisanhyoka shomeisho), registration of property ownership (tokibo tohon), and two witnesses (non-related). (It is advisable for a foreigner to have a native language translation of the will.)

There will be a will registration fee calculated on a scale based on the value of your total assets. Lawyer’s fees will vary, usually based on the fee schedule of the Japan Bar Association.

Will Execution All sealed wills must be opened in the Family Court and witnessed by the heirs or their representatives. Self-made and secret wills must undergo the process of inspection and recognition preceding the opening.

Will execution may be done only by a testator— 65

Chapter 5: Wills, Death, and Inheritance

a designated or a Family Court- appointed executor (shikkonin).

The executor must: 1. Prepare a complete property and assets list.

2. Issue such a list to heirs.

3. Manage inheritance and activities such as transfer of property, registration, and collection and payment of debts, or sale of assets for debt payment.

4. On completion of his or her duties, speedily inform heirs.

When the deceased leaves no compensation for the executor, the Family Court may designate compensation from the inheritance. Land and other real estate which need re-registration must be reregistered with a document called the bunkatsu kyogisho. This is an arbitration paper signed by the Family Court.

SAMPLE OF STANDARD WILL (designated division of household items, special heirs, gifts to charity, etc. may be added) 1. The testator hereby revokes all former wills and codicils.

2. Upon the death of the testator, his wife (name) inherits all inheritance. (Instead of this, he may want to designate the standard law (see page 60, article on inheritance) of inheritance for all heirs.

3. Where both the testator and his wife (name) shall die or meet death as the result of a common disaster, their children (names) shall inherit all inheritance equally.

4. Where both the testator and his wife (name) shall die or meet death as the result of a common disaster, the testator nominates (name) of (address) as guardian of the minor children.

5. Where the testator shall die, the testator nominates (name of spouse or other person) of (address) as executor of his last will. Where both the testator and his wife (name) shall die or meet death as the result of a common disaster, the testator nominates (name) of (address) as executor of this last will.

6. Where the testator, his wife and their children 66

die or meet death as the result of a common disaster, without regard to the relation of the time of death: a. All inheritance in Japan shall be bequeathed or devised to (name) of (address). b. All inheritance in (name of foreign country) shall be bequeathed or devised to (name) of (address).

A will is necessary in the following cases: 1. If one owns a farm or operates a private business, store, factory, etc., because death stops the operation of such enterprises until the inheritance is settled in court. Lengthy court deliberations can cause needless hardship.

2. If the decedent has no children, the spouse must divide the inheritance with the decedent’s parents or siblings. A will enables one to leave all inheritance to the spouse for his or her livelihood if necessary. (Best to have the other heirs agree in writing not to contest such a will.)

3. Where parents have been cared for by the spouse of their deceased child, a will written by the parents enables a son-in-law or daughter-in-law to receive some inheritance as the direct heirs.

4. Where a second spouse and children of a ďŹ rst spouse are living, the will must state clearly what the second spouse is to receive, so that his or her inheritance is not jeopardized. It is also best to clearly state what the children are to inherit, and very helpful to have all heirs agree in writing to the provisions of such a will.

5. Where a marriage was not correctly registered in the family register (koseki), where the marriage was common law only, a surviving partner would have no inheritance unless his or her portion is clearly stated in a will.

In addition, the following items can only be accomplished by a will: 1. Disposal of inheritance other than by standard law. Only by a will can such lawful allotment be changed.

2. Disposal of household items, collections of art, butsudan, etc.

3. Designation of a guardian for minor children AFWJ Legal Mini Handbook

Chapter 5: Wills, Death, and Inheritance

in case both parents die. Consent (in writing) of the guardian should be obtained before he or she is named in a will.

4. Designation of a will executor.

5. Recognition of heirs, such as illegitimate children.

6. Disinheriting an heir.

7. Bequests to schools, charities and establishment of trust funds.

AFWJ Legal Mini Handbook

67

Chapter 5: Wills, Death, and Inheritance

Making and Filing a Will Tamah Nakamura © 1993, 2010 Why Make A Will If a couple has no children and has made no will, the law clearly designates 1/3 of the total assets of the deceased husband to the husband’s surviving parent/s if the parents choose to claim. In the event that neither parent is living, the husband’s siblings could claim 1/4. If a husband and wife have made wills leaving everything to each other, the surviving parent/s can claim 1/6 (1/2 of the former 1/3) but the other family members can no longer claim anything.

It may be wise to attach a copy of the Japanese law which allows non-citizens to make wills in Japan.

The following information is as accurate as possible in reflection of our experience, but considering the Japanese penchant for ambiguity, it may very well be different in other ‘cases’. Our lawyerfriend checked this after I had written it. A friendly lawyer is a godsend.

Documents Required For Filing 1. A sample will for each party in Japanese 2. Kosekitohon (Family Registration) 3. Jitsuin and Inkan Shomei (registered seals and certification) 4. Koteishisanhyoka shomeisho (certification of evaluation of fixed assets) 5. Tokibo tohon (ownership registration for property) 6. Two witnesses (non-related; may be your lawyer) Fees 1. Lawyer’s fee is for making will (fee set by Japan Bar Association; minimum of ¥130,000 for a simple will; check with your lawyer.)

2. Will registration fee (Nos. 4 & 5 above are used to calculate the fee to pay at the time of registration at the Koshoyakuba (a public registration office dealing with registration of certain kinds of le68

gal documents. Fee is calculated on a scale based on your total assets evaluation, including savings.)

Making A Will 1. Using a set format including the details of the individual case, a handwritten will (by you or your lawyer) is taken to the Koshoyakuba where it will be formally written or typed, and returned to you for verification.

2. Appoint an executor or executrix to ensure fast, proper legal procedure in handling the estate when it becomes necessary. (May be your lawyer) Procedure For Filing 1. With two witnesses go to a Koshoyakuba.

2. Parties concerned and their witnesses sign and put their seal stamps on the respective wills.

3. Pay the registration fee.

4. Go over the will with the Registrar individually. I could have my witnesses/lawyer there but my husband had to wait outside the office. I had to explain the content of the will from memory step by step from my name to the content details while the Registrar looked at the will. Our lawyer was allowed to attend and would have been allowed to translate if I had requested it.

5. The original will is kept on file in the Koshoyakuba for a minimum of 50 years.

Note on Inheritance Taxes If possible, the ownership of all assets should be divided between husband and wife so that the husband and wife own 50% of the house and land, with savings half in each name, etc. When inheritance tax must be paid, you then only have to pay on your spouse’s half o the assets as the remaining 50% is already yours.

Legal advice in Fukuoka: IMS Bldg., Rainbow Plaza, Tel. 092-733-2220

AFWJ Legal Mini Handbook

Appendices: Useful Documents/References

Appendices: Useful Documents/References

AFWJ Legal Mini Handbook

69

Appendices: Useful Documents/References

Appendix A

配偶者ビザ必要書類一覧表 Spouse of Japanese National Visa Status Requirements (1)日本人の配偶者である場合 (When one’s spouse is a Japanese national) ア 当該日本人との婚姻を証する文書 A) Documents proving marriage to the Japanese national 戸籍謄本(戸籍謄本に婚姻事実の記載がない場合は、婚姻届受理証明書が必要です。) A) Copy of your spouse’s family register, or koseki tohon (If your marriage is not recorded on the family register, then a Proof of Marriage Certificate (koin todoke jyuri shoumeisho) will be necessary. イ 当該日本人の住民票の写し B) A copy of your spouse’s Residence Certificate (juminhyo) ウ 当該外国人又はその配偶者の職業及び収入に関する証明書 C) Documents providing proof of employment and income for both the foreigner and the Japanese spouse (ア)在職証明書等職業を証明するもの (i) Proof of Employment Certificate (zaishoku shoumei sho) or other proof of employment (イ)次のいずれかで、年間の収入及び納税額を証するもの Proof of annual income or tax payments, from one of the following: ・住民税又は所得税の納税証明書 Proof of payment of local residents’ tax or income tax (juminzei nozei shomeisho or shotokuzei nozei shomeisho) [Note: Issued by your municipal office.] ・源泉徴収票 Annual Income Statement (genno choshyu hyo) [Note: Issued by employers.] ・確定申告書控えの写し A copy of your income tax return statement (kakutei shinkoku hikae no utsushi) エ 本邦に居住する当該日本人の身元保証書 (Proof of identification for said Japanese national living in Japan) [Note: Usually driver’s license or other form of personal identification.]

70

AFWJ Legal Mini Handbook

Appendices: Useful Documents/References

移民法律家からの配偶者ビザの法務一口アドバイス

Legal Advice Regarding Spouse Visas From Immigration Lawyers 上記はあくまで基本書類です。この配偶者ビザのポイントは、実際には結婚相手の国に よって必要になる書類は異なってくることです。一般に、偽装婚の多い国になるほど、 書類や手間は増えるとみたほうがよいでしょう。また、日本人配偶者の場合、最低限、 婚姻届けの受理証明書が必要ですが、国際結婚の場合、日本人同士のように、婚姻届け 「だけ」を区市町村の役所へ持っていっても、基本的には受理されません。一般には外 国人側の「婚姻要件具備証」が必要で、これが出ない国だと、法務局への受理照会扱い になり、時間がかかる場合があります。また、先に相手の外国での婚姻を先行させる方 法もありますが、それも大変な労力を要します(例、日本人側の具備証につき、法務局外務省-領事館の3点認証など。)。 The abovementioned documents are only the essentials. The major point to remember regarding spouse visas is that the documents required vary depending on the spouse’s nationality. Generally speaking, visa processing for spouses from countries where “faked marriages” with Japanese nationals tend to be a problem require larger amounts of paperwork and effort. Also, note that while only the Proof of Acceptance of Marriage Registration (koin todoke no jyuri shomeisho) is required for the Japanese spouse, municipal governments will basically not accept a simple Marriage Registration in the case of marriage between a Japanese and non-Japanese. The foreign spouse is required to present an Affidavit of Competency to Marry (konin yoken gubi shomeisho). Marriages to persons from countries which do not provide this documentation for their nationals will be subject to inquiry by the Ministry of Justice, resulting in additional time. Getting married in the foreign partner’s country, and applying for a visa there, is also an option, but this also involves a significant amount of effort. (For example, ascertaining the Japanese spouse’s eligibility to marry involves certification with the Ministry of Justice, Ministry of Foreign Affairs, and Japanese Embassy.)

Note: Translated from www.lawyersjapan.com/visashorui9.html. Translation by Wendy Jonas Imura, January 2006.

AFWJ Legal Mini Handbook

71

Appendices: Useful Documents/References

72

AFWJ Legal Mini Handbook

Appendices: Useful Documents/References

AFWJ Legal Mini Handbook

73

Appendices: Useful Documents/References

Appendix B

Change/Extension of Spouse of Japanese National Requirements I) Application for Change of Status of Residence to Spouse of Japanese National (Nihonjin haigusha zairyushikaku no henko): Who can file?

1) The applicant 2) A legally appointed representative of the applicant (if the applicant is under the age of 16 or in some way incapable of filing for him/herself ) 3) An approved lawyer or ‘legal scrivener’ (shihoshoshi) recognized by the Regional Immigration Bureau Director How much does it cost?

Y4,000 in revenue stamps after approval is granted Documents necessary to file: 1) One completed application (see attached) 2) Necessary accompanying documents For the Spouse of Japanese National Visa A) Paperwork providing marriage to said Japanese national (proven either by a Certificate of Marriage Acceptance [kekkon jyuri shoumeisho] or a copy of the family register [koseki tohon]) and a copy of the Japanese national’s residence certificate (jyuminhyo no utsushi).

Note: The residence certificate may be obtained from the municipal office where the Japanese spouse currently resides, while the Certificate of Marriage acceptance and family register must be obtained from the municipal office where the marriage was registered and where the permanent domicile (honseki) of the family register is located.

B) Documents proving the occupations and income level of the applicant and any dependents he/she may have (i.e. proof of employment [zaishoku shomeisho], proof of income [shotoku shomeisho], proof of enrollment in school [zaigaku shomeisho]). Note: Proof of income documents (based on the prior year’s income and taxes paid) are available from your local municipal offices.

C) Proof of identification of the Japanese spouse living in Japan (driver’s license, etc.)

D) Applicant’s passport (ryoken) and alien registration card (gaikokujin toyoku shomeisho).

E) If the application is filed by proxy, the proxy representative must also have proof of identification.

Note: Other documents may be required. Please consult with the Immigration Office staff for specific instructions.

74

AFWJ Legal Mini Handbook

Appendices: Useful Documents/References

How to apply: First, call the Immigration Office location nearest to you to inquire about the necessary paperwork. Second, gather the necessary paperwork, double-checking that each document is current (copies of the residence certificate must often, for example, be less than 30 days old). Third, fill out the application (available for download from here: www.moj.go.jp/ONLINE/IMMIGRATION/16-2-1.pdf), making sure to fill in the additional sub-form “T”. Take it, and your supporting documents, to the proper immigration office between 9 a.m.-12 p.m., or 1 p.m.-4 p.m. (Some offices have Saturday hours, so please inquire in advance.) Your approval will usually be granted in one to three months, depending on circumstances, although it may take longer or require additional paperwork when changing from a short-term visa.

II) To apply for an Extension of the Spouse of a Japanese National Visa (Nihonjin haigusha zairyushikaku kikan no koshin), follow the above steps with the exception of filling out a different form. (Download available here: Application for Extension of Period of Stay www.moj.go.jp/ONLINE/IMMIGRATION/16-3-1.pdf ).

Note: Taken from Immigration Bureau Homepage. Translation by Wendy Jonas Imura. www.moj.go.jp/ONLINE/IMMIGRATION/16-2.html www.moj.go.jp/ONLINE/IMMIGRATION/16-3.html

AFWJ Legal Mini Handbook

75

Appendices: Useful Documents/References

Appendix C

Change to Long-term Resident Status What is a long-term resident (teijyusha) visa?

Q1: 定住者ビザとは、どのようなものですか?

A1: A long-term resident visa is a visa or residence permit (zairyu shikaku) granted to persons allowing residence by the Minister of Justice for a specific length of time for a special reason. Although it is not a very well-known visa, it is extremely important for visa-related law. Some examples for petitioning the Ministry of Justice for this visa are outlined below.

A1: 定住者ビザとは、法務大臣が特別な理由を考慮し一定の在留期間を指定して居住を 認める者のためのビザないし在留資格のことをいいます。定住者ビザは、あまり聞いた ことがないビザかもしれませんが、ビザ法務では非常に重要です。 具体的には、法務省の告示(定住告示)に以下のように例示列挙されています。 「Long Term Resident」Those who are authorized to reside in Japan with designation of period of stay by the Minister of Justice in consideration of special circumstances.

The following in detail: 1 Indochina refugees and their families 2 Biological child of biological child of Japanese national 3 Spouse of biological child of Japanese national or “Long Term Resident” 4 Biological, unmarried, minor child of Japanese, “Permanent Resident,” “Special Permanent Resident,” Spouse of Japanese national, Spouse of Permanent Resident or “Long Term Resident” 5 Adopted child under 6 years old of Japanese, “Permanent Resident,” “Special Permanent Resident” or “Long Term Resident” 「定住者」...法務大臣が特別な理由を考慮し一定の在留期間を指定して居住を認める 者 具体的には,次のような方が該当します。 一 インドシナ難民とその家族 二 日本人の実子の実子(いわゆる日系3世) 三 日本人の実子又は定住者の在留資格をもって在留する者の配偶者 四 日本人,永住者,特別永住者,日本人の配偶者,永住者の配偶者又は定住者の在留資格 をもって在留する者の未成年で未婚の実子 五 日本人,永住者,特別永住者又は定住者の在留資格をもって在留する者の6歳未満の養 子 (The above was taken from: www.moj.go.jp/ONLINE/IMMIGRATION/16-3-1.pdf) 76

AFWJ Legal Mini Handbook

Appendices: Useful Documents/References

Documents Necessary for Filing for Long-term Resident Visa 一 (1) 戸籍謄本、婚姻証明書、出生証明書その他の当該外国人の身分関係を証する文書 (Family register (koseki tohon), birth certificate (shussei shoumei sho), and/or other documents proving the relationship of the foreign applicant 二 (2) 在留中の一切の経費を支弁することができることを証する文書、当該外国人以外 の者が経費を支弁する場合には、その収入を証する文書 Documents proving that the applicant can fully support him/herself financially during his/her residence period, and/or documents proving said financial support (income) if provided by others 三 (3)

本邦に居住する身元保証人の身元保証書

Letter/proof of guarantee from a guarantor living in Japan (Taken from: www.moj.go.jp/NYUKAN/NYUKANHO/ho14-1.html#3-1 ) Common Questions and Answers Q4: 私は日本人との間に子どもがいますが、彼には奥さんがいたため結婚はしていませ ん。胎児認知をしています。最近になって、興行のビザが切れそうになりました。どう すればよいですか?

Q4: I have a child fathered by a Japanese national, but we are not married (because he already had a wife). The Japanese father officially recognized paternity of my child in utero (taiji ninchi). My tourist visa expires soon. What should I do?

A4: 胎児認知されていたのでしたら、その子どもは日本人(=日本国民)ですから、その子 どもを監護養育されているときは、通常、定住者の在留資格が許可されます(法務省入 国管理局長通達平成8年7月30日)。この辺りは民法の親族法+国籍法+入国管理法の三つ の法令を総合的に知っておかねばなりません。なお、認知については民法上の効果(遡 及効)と国籍法上の効果は同じではありません。 A4: If the Japanese father has recognized paternity before the child’s birth, then your child is recognized as a Japanese citizen. As long as it can be proven that you are raising/supporting this child, you can usually be approved for a long-term resident’s visa (as of the Ministry of Justice’s Immigration Bureau Notice of July 30, 1996). In these cases, general knowledge of civil law (family law, nationality law, and immigration law) is necessary. Note that the effects of paternal recognition on civil law (retroactive effect) and nationality law are not the same.

[Note also that a recent Tokyo District Court ruling (March 29, 2006) struck down the nationality clause (which only allowed Japanese-fathered children born out of wedlock whose fathers recognize paternity before birth to attain Japanese citizenship) as unconstitutional.

Please note, however, that an appeal of this decision is pending.]

AFWJ Legal Mini Handbook

77

Appendices: Useful Documents/References

Q5: 私は日本人と婚姻していましたが、離婚することになりました。しかし、子どもは いません。私のビザはどうなるでしょうか?

Q5: I am married to a Japanese national, but we decided to divorce. However, there were no children from the marriage. What will happen to my visa?

A5: 相当期間、婚姻を継続していた場合には、日本人と離婚して、かつ子どもがいなく ても、定住者の在留資格への在留資格変更許可を認容されることがあります。この相 当期間の判断基準は、先例では3年程度が一応の必要条件です。最短のケースで3年未満 (2年強)のケースも実在します。但し、この類型での審査のポイントは、夫婦としての 同居等の実体関係が伴っていたことが要件になることです。これも偽装婚を防ぐ趣旨で す。 A5: If you were married for a reasonable length of time (continuously) to a Japanese national despite having no children, it is possible to change your visa to a long-term residence permit. The standard used to judge “reasonable length” is usually said (through prior cases) to be around three years. Sometimes shorter periods (slightly longer than two years) have been granted in the past. The major point in gaining approval for this visa is proving the ‘entity relationship’ (joint residence as spouses, etc.), to avoid “paper marriages.”

(Translator’s Note: All “Questions and Answers” were translated by Wendy Jonas Imura from www. lawyersjapan.com/visaqa10.html. This information is intended only as a guide, and neither the translator nor the original Japanese information should be considered definitive. Always confirm information with the Immigration Bureau, preferably several times.)

78

AFWJ Legal Mini Handbook

Appendices: Useful Documents/References

Appendix D

Change to Permanent Resident Status Guide to Procedures for Applying for Permission for Permanent Residence November 2001 Persons seeking to change their status of residence to that of permanent resident should submit the documents indicated by circles in the appropriate “Status of Residence of Applicant” column. Unless otherwise indicated, please submit original documents. Your application may not be accepted if you do not submit documents relating to your personal status (family relationships).

Status of Residence of Applicant

Spouse or dependent of Japanese national or permanent resident

Documents to be submitted (issued within the past three months) 1 Application form for permission for permanent O residence (two copies) 2 Explanation of your reasons for applying for perX manent residence (form distributed by Immigration (please submit Bureau). Please address this to the Minister of Justice this if your and write in Japanese. If more than one member of circumstances the same household is applying at the same time, a give you parsingle copy is sufficient. ticular reason) 3 Resume (form distributed by Immigration Bureau) Minors should fill in section 16 (Personal History) of O the application form 4 Family outline (form distributed by Immigration Bureau) O Minors should fill in section 18 (Family in Japan) of the application form 5 Documentation of personal status (documents confirming the family relationships of the applicant) * Official document confirming that the applicant is a spouse [of a Japanese national or permanent resident]: Family register (koseki tohon) of the Japanese resident, plus the marriage certificate in the case of a permaO nent resident * Official document confirming that the applicant is a child [of a Japanese national or permanent resident]: Family register (koseki tohon) if family registration system is applicable, or birth certificate 6 Certificate of alien registration (gaikokujin touroku genpyou kisei jikou shoumeisho) of the applicant, and O residence certificates (jyuminhyou) of all Japanese members of the household AFWJ Legal Mini Handbook

Authorized employment

Family residency

O

O

O

O

O

O

O

X

O

O

O

79

Appendices: Useful Documents/References

Status of Residence of Applicant

7 Documents certifying the employment of the applicant or the person supporting the applicant: * for a salaried employee, a certificate of employment (zaishoku shoumeisho) issued by the employer (bearing the company seal) * for a person engaged in an occupation requiring a license or permit, a copy of the license or permit (kyoka shoumeisho/ninka shoumeisho) (photocopy) * for an executive of a corporation, a certified copy of the register of the corporation (houjin toukibo touhon) * for self-employed persons who are unable to obtain certification of employment, the original or a copy of their tax return (kakutei shinkoku hikae) or proof of dealings with business partners (torihikisaki kara no torihiki shoumeisho) 8 Documents certifying the income of the applicant or the person supporting the applicant: * for a salaried employee, a certificate of withholding tax (gensen choushuuhyo) or certificate of payment of municipal taxes (shifuminzei kazei shoumeisho), etc. * For self-employed persons, certificate of payment of municipal taxes (shifuminzei kazei shoumeisho) or a certificate of tax payment (nouzei shoumeisho) issued by the tax office showing the amount of income 9 Documentation demonstrating the payment of public dues Certificates of tax payment (nouzei shoumeisho) for income tax, residency tax, etc.

10 Documentation demonstrating the assets and qualifications of the applicant or the person supporting the applicant (submit what you can) * Updated passbooks (originals or photocopies) or account statements for bank accounts * Certified copies of land registers (fudousan toukibo touhon); certificates of deductions for life insurance premiums (seimei hokenryou koujo shoumeisho) or life insurance policies (originals or photocopies); certificates of entitlement for pensions, etc. (nenkin jukyuu shoumeisho) (originals or photocopies); national health insurance card (kokumin kenkou hokenshou) or health insurance card (kenkouhokenshou) (photocopy of both sides) * Photocopies of certificates relating to qualifications and skills

80

Spouse or dependent of Japanese national or permanent resident

Authorized employment

Family residency

O as applicable

O as applicable

O as applicable, covering the previous year

O as applicable, covering the previous three years

X

O covering the previous three years

X

O

O

AFWJ Legal Mini Handbook

Appendices: Useful Documents/References

Status of Residence of Applicant

11 Documentation concerning the guarantor (guarantor must be a Japanese national or permanent resident) * (i) Letter of guarantee (form available at this office) (ii) Certificate of employment for the guarantor (see section 7 above) (iii) Documentation of the guarantor’s income during the preceding year (see section 8 above) (iv) Residency certificate (juuminhyou) or certificate of alien registration (gaikokujin touroku genpyou kisai jikou shoumeisho) of the guarantor 12 Copies of testimonials or letters of appreciation from national or regional public institutions (if available)

Spouse or dependent of Japanese national or permanent resident

Authorized employment

Family residency

O (spouse)

O

O (spouse)

X

O

O

NOTES • Applications must be made in person, at which time the applicant should also show his/her passport (with visa) and alien registration card. (Family members may apply on behalf of applicants under the age of 16, or those who are unable to apply in person because they are hospitalized due to illness). Applications from persons outside Japan cannot be accepted. Please also note that persons outside Japan cannot receive permission for permanent residence.

• If you are not given permission for permanent residence during your present visa, you must apply to renew your period of stay before your current visa expires.

• Please inform the immigration office immediately of any changes to your address or family relationships, etc., following your application.

• All submitted documents should have been issued within the previous three months.

• Following your application, you may be asked to submit further documents as part of the examination process.

Note: Translated by Claire Debenham from information from the Osaka Immigration Bureau.

AFWJ Legal Mini Handbook

81

Appendices: Useful Documents/References

82

AFWJ Legal Mini Handbook

Appendices: Useful Documents/References

AFWJ Legal Mini Handbook

83