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2013.02.20 Wed

A divorce by agreement is possible in mediation?

Reply by Attorney Ms. Sakura UCHIKOSHI

◎Although there is a method, it had better be positive.

Both the husband and the wife agree on divorce by mediation, however two persons or either one may desire a divorce by agreement as feeling resistance etc. and submits a notification of “divorce by mediation.”

In each family register of the husband and the wife, it is indicated as “○ year○ month ○ day , divorce-by-agreement notification with ・・・” in the case of divorce by agreement, and also indicated as “○ year ○ month ○ day , divorce-by-mediation formation with ・・・” in the case of divorce by mediation. The latter case, probably you will hesitate to mediate because an image of mediation is like your divorce was not formed with agreement or you and your husband disputed heavily.

In that case, both of you can sign up or put one’s seal on notification of divorce by agreement and submit it. If you take that way, you had better be cleared that both of you agree about the expense of bringing up a child, settlement of asset, reparation, division of pension on documents of mediation. On documents of mediation, it is written that both of you agree on divorce by agreement. But even though that agreement is written on the documents, divorce by agreement is not formed. You should write down who will submit a notification of divorce(conveniently it is usual that one who remove family register will submit) and one entrust a notification of divorce with one’s sign and seal to another who will submit it at mediation.

However, it is troublesome if one who does not submit a notification of divorce will submit an unuccepted report (notification of the purport that a divorce notice is not received). If one just forgot about an unaccepted report, you can ask to withdraw it. But if one does not withdraw it easily, you may be in a trouble. In that case, you have to start to proceed to offer mediation again.

Considering the possibility of such a trouble, I would recommend to realize divorce through divorce by mediation. I believe that divorce is divorce. It is the same a divorce resolved by mediation as a divorce resolved by agreement. I am sure that you make a new start by overcoming difficulties in either way (a lawsuit of divorce is also the same, you worked hard and resolved). You should not mind. I strongly recommend to take a certain way without taking risk.

I am not saying that divorce by agreement is better than divorce by mediation. But if either the husband or the wife is abroad on the day of a formation of divorce, you could form a divorce by agreement or form a divorce by mediation on the basis of representative attendance. If the husband or the wife is abroad, he/she had better sign up or put one’s seal on a notification of divorce in advance and hand it over to her/his representative for handing over to other parties. But if either one is away for a short business trip etc…, it is better to change the due date or assign another due date. It is certain that the person himself/herself had better attend when mediation is formed including divorce case.

Otherwise, there is a way that the Family Court will hold hearing instead of mediation (Domestic-proceedings Article 284 the 1st clause of adjective law). This is the hearing by the referee performed by authority in consideration of all situations when the Family Court admits being considerable, it will decide, if the party concerned to an objection cannot be found within two weeks, and it has the same effect as an irrevocable judgment.

Original article on the WAN website　(February 21, 2013)

http://wan.or.jp/reading/?p=9142

Translated and adapted from the WAN website by OGAWA.M.

カテゴリー：Legal Advice