Compensation for Emotional Distress upon Divorce

Governing Law

Whether you can claim compensation for your emotional distress related to divorce depends on whether the governing law allows it.

The governing law would be as follows (Act on General Rules for Application of Laws, Articles 27, 25):

1. in a case where both spouses have common country of nationality, the law of such country;
2. in a case where spouses do not have common country of nationality but have common country of habitual residence, the law of such country of habitual residence;
3. in a case where spouses have neither common country of nationality nor common country of habitual residence, the law of the place most closely connected with the spouses;
4. regardless of the above, if a spouse is a Japanese and have a habitual residence in Japan, the laws of Japan.

Under Japanese Law

If Japanese law governs your case, a spouse responsible for any of the following reasons for divorce may be ordered to pay compensation to the other spouse for the other’s emotional distress:

1. If a spouse has committed an act of adultery;
2. If abandoned by a spouse in bad faith;
3. If it is not clear whether a spouse is dead or alive for three years or more;
4. If a spouse is suffering from severe mental illness and there is no possibility of recovery; or
5. If there is any other grave cause making the marriage difficult to continue.

The amount of compensation will depend on the following factors. Please be noted that those factors are not exhaustive and there are also other factors to be considered.

• How highly you are responsible for such reason (in a case of adultery, for example, how long did it last, how many times, and so on.);
• To what degree the other spouse suffered emotionally or physically (in a case of DV);
• Whether you have a child or children under age with other spouse;
• Whether you (responsible for reasons for divorce) are rich or not; and
• Whether you made efforts to continue your marriage.

Though the amount depends on various circumstances, the average maximum for cheating cases would be 3M JPY and 5M JPY for DV cases.

This compensation claim can be filed together with divorce claim.

Compensation Claim against Adulterous Partner

For those people from common law countries, this might seem weird since your country usually does not allow this, but under Japanese law, an innocent spouse can claim compensation for emotional distress against a cheating partner of his/her responsible spouse. To put it simply, a tort claim can be filed against a lover on the basis that he/she destroyed an amicable husband-and-wife relationship.