Prenuptial Agreements in Japan

Legal Basis for Prenuptial Agreements in Japan

Despite the cultural reluctance, Japanese law does provide a legal framework that allows for the recognition and enforcement of prenuptial agreements in certain circumstances. The Act on the General Rules of Application of Laws (Ho no tekiyo ni kansuru tsusoku-ho) permits spouses marrying in Japan to select the legal regime that will govern their marriage. This choice is limited to the law of either spouse’s nationality, habitual residence, or, in the case of real estate (immovables), the law of the place where the property is located.

In addition, the Act recognizes prenuptial agreements executed under foreign laws and allows such agreements to be registered in Japan. This provides a mechanism for international couples or expatriates to formalize their financial arrangements in line with foreign legal systems while ensuring recognition within Japan.

Civil Code Provisions Supporting Prenuptial Contracts

The Japanese Civil Code includes important provisions that further support the use of prenuptial agreements. Specifically:

• Article 755 states that the property rights and obligations between spouses are governed by statutory rules unless the couple agrees otherwise through a contract executed before submitting their marriage notification.
  
  
• Article 756 clarifies that while registration of the agreement is required for it to be enforceable against third parties, such registration is not necessary for the agreement to be binding between the spouses themselves.
  
  

These articles provide a legal foundation for couples wishing to define their financial relationship through a prenuptial contract.

Jurisdiction and Forum Selection Clauses

Japanese courts generally uphold forum selection clauses included in contracts, including those found in prenuptial agreements. A prenuptial clause that assigns jurisdiction to a foreign court will typically be honored by Japanese courts, provided two conditions are met:

1. The issue is not one over which Japanese courts have exclusive jurisdiction.
   
   
2. The designated foreign court would independently have jurisdiction over the matter under its own applicable law.
   
   

This flexibility is particularly useful for international couples who may expect to reside or litigate matters in other countries.

Limitations and Public Policy Considerations

Although prenuptial agreements can determine the applicable marital regime, there is uncertainty regarding the enforceability of provisions related to other financial matters, especially those that attempt to waive or reduce future spousal support (alimony) obligations.

Japanese law does not include a traditional alimony system as found in some other jurisdictions. However, parties often seek to address alimony in prenuptial agreements, particularly if there is a possibility of future divorce proceedings taking place outside of Japan. This raises questions about whether Japanese courts would enforce provisions that attempt to limit the court’s inherent authority to protect a spouse’s financial well-being.

Judicial Review and Public Policy

Even if a prenuptial agreement meets formal requirements, it may still be reviewed by Japanese courts for consistency with Japanese public policy. There is general acceptance in the Japanese legal system that prenuptial contracts must not violate principles of fairness or social order, and courts retain the discretion to disregard any terms deemed to be contrary to public interest.