World Divorce Laws


"On the other hand, in our country, from the standpoint of due respect for the will of the spouses concerning a divorce, in addition to the institutions of divorce through mutual agreement (Article 763 of the Civil Code), divorce through conciliation (Article 17 of the Law for Determination of Family Affairs) and divorce through determination (paragraph 1, Article 24 of the said Law), the institution of judicial divorce is available for the cases where one of the spouses does not consent to divorce. The causes for judicial divorce are stipulated by law as mentioned above, and, when such grounds are acknowledged to exist, one of the spouses may seek divorce through an action against the other. Under such system of judicial divorce, if divorces were to be always granted where the ground provided by item 5 exists, the court would be compelled to permit the spouse responsible for having caused the ground to take advantage of it and the will of the other spouse would be disregarded, and it eventually might bring about results that negate a judicial divorce system. Thus, it is needless to say that any action which may cause such results should not be permitted."


This decision is the one which overruled the Supreme Court decisions heretofore relative to claim for divorce from responsible spouses.

In our country, as methods of divorce, divorce through mutual agreement, divorce through conciliation, divorce through determination and judicial divorce are stipulated. Divorce through mutual agreement is one which is accomplished by reporting the divorce when concerned parties agree concerning the divorce and the courts do not participate. Divorce through conciliation and divorce through determination are those which are accomplished through participation of the family court; however, each is a system where agreement by both concerned parties is respected. When one of the concerned parties desires a divorce and the other does not subscribe to it, a claim for judicial divorce may be filed at the district court after going through the conciliation procedure at the family court.

Although the causes for divorce in these cases are stipulated in the Civil Code, the Supreme Court, heretofore, concerning an action for divorce based on "grave reason for which it is difficult to continue the marriage" which is one of the legal grounds for divorce, even in cases where breakdown of marital relationship had occurred, considered that the breakdown originated totally from the behavior of moral turpitude of the plaintiff and set forth a decision that "although item 5, paragraph 1, Article 770 of the Civil Code does not require a responsible act by the other party, action for divorce under the above Article of the Code solely for such reason by any person at his or her own convenience despite having caused the breakdown of marital relationship by their own acts of moral turpitude, notwithstanding the desire of the other party to further continue the marital relationship, is a matter that our moral concepts, after all, cannot sanction and it must be construed to be a matter not recognized by law." (December 14, 1954 by the Third Petty Bench, Supreme Court (Case No. (O)-196 of 1952, Minshu vol. 8 No. 12, p. 2143)).

Such a position has been dominating in the practice to this day and the instant decision has overruled the precedents by declaring that a claim for divorce from the responsible spouse is permissible when the period of separation was long, there were no immature offsprings during this period and so long as there were no special circumstances.

This decision may be said to have an extremely significant bearing on the divorce system of our country.

This decision appears in Minshu vol. 41 No. 6, p. 1423.