UNAUTHORIZED DIVORCE

QUESTION

May I ask for you your comment or answer about my case? I had been deported back to my country five years ago because I used fake passport with another name, which is not my real name. When I was deported, the Immigration officer noticed me that the period of my penalty is “5 years”, and then I came back to Japan. However, as a result of the finger print examination at the airport, they caught me and bring me back to the Philippines again (Airport to Airport) since the penalty period has not yet passed over.

Surely, the period of it still remain more or less than 2 months. On the other hand, my Japanese husband got remarried with Japanese after he made a divorce report and submitted to Kashiwa-city office in Chiba-prefecture without my consent. We have our child who is now living with me with a Japanese passport holder.

Can I recover my marital status? Can I come into Japan after the period of my penalty would have passed over? How can I do it?

Please help me.

Miranda in the Philippine

ANSWER

I think your case includes the very complicated and legal matter. In accordance with the law, there are two kinds of method, which you can reenter into Japan. First, it is a spouse of Japanese national, and second is a real mother of the child of Japanese national. You yourself can judge and choose the best way. Please find it as I explain it in full detail as follows:

1. Method that reenters Japan as a “Spouse of Japanese national”

You have to recover your marital status, first of all. Then, for that purpose, you surely have to carry out the procedure currently listed below.

a)The explanation and the request to the Kashiwa city office

It is exactly a crime that your husband created the “divorce notice” dogmatically and submitted it to the city office, without obtaining your consent.

That is, his act corresponds to the crime of the False Entry in Officially Authenticated Instruments (Paragraph 1, Article 157 of a criminal code), Forgery of a Private Document and etc. (Article 159) and an use-of-a-forged-private-document (Article 161), and to be carried out on punishments (five or less years of imprisonment, or a 500,000 or less yen fine)

Furthermore, although there is limitation in a crime, divorce is not materialized by prescription even if the state where it became divorce on a family register under the invalid divorce notice will continue in years.

Even if it had been divorced on the family register, it does not mean divorce but the actual marriage has been continuing. Therefore, if he/she would submit a marriage report with other person to the municipal office, this action corresponds to “Committing Bigotry” based on Article 732 of Civil Code and is supposed to be severely punished as a bigamy (Article 185 of criminal code) since this marriage will not be accepted on law.

Although a victim in this case is you in a substantial manner, it is Kashiwa city office on a formal target, which received this divorce report. Then, Kashiwa city office as a victim of this case is necessary to charge this case to a criminal investigation agency (prosecutor’s office/police office).

Now, since you have been living in the Philippines, you may ask your friend or acquaintance who is now residing in Japan to explain that “the divorce notice was made falsehood by your husband” and request them to charge to the criminal investigation agency (prosecutor’s office/police office).

b) Accusation to the police or a public prosecutor

However, when a city office will not correspond to their request even if your friend or acquaintance would have explained honestly, your friend or acquaintance by themselves shall charges your case. Although accusation is possible by submitting a “Bill of Indictment” to the Public Prosecutor’s Office or police office by himself or herself, I think they had better consult and trust to a lawyer who is the expert of this field because the creation of a bill of indictment is considerable needed the law knowledge.

When your friend or acquaintance would create or make up a “Bill of Indictment”, she/he must fill in it the following facts. For example, it is that you have been living in the Philippines all the time, that a divorce notice has not been sent with international mail from your husband, that therefore you could not make your signature in it, which he submitted to Kashiwa city office, and he is absolutely impossible to prove these facts. Because, these facts are so clear from entry and departure seal of Japanese Immigration.

From these facts, a criminal investigation agency will accept that a divorce notice is forged, and will receive the “Bill of Indictment”.

If a guilty verdict is decided as a result of a criminal trial, a public prosecutor is surely supposed to notify this decision to mayors based on paragraph 3, Article 24 of the Family Registration Law. Then, the mayors who received the notice are also supposed to call on your husband to apply for correction. However, if there is no application of correction by him, the mayors will correct the record of his family register according to the authority of mayors after they will get permission of the Legislative Bureau.

c) The mediation and the trial in the Family Court

Frankly and honestly speaking, the police is always negative to the handling of such a civil case. Therefore, they may be dealt with earnestly your case saying, “There is no proof, etc.” In such a case, you must state and file your case as “mediation of a divorce invalid check” and “mediation of marriage cancellation” to the Family Court through your friend or acquaintance.

”Mediation of a divorce invalid check” is the statement for being accepting “The divorce between you and your husband should be invalid”.

Moreover, “Mediation of marriage cancellation” is the statement for accepting “The second marriage with your husband and a Japanese woman should be canceled since it is bigamy”.

If it would be unsolvable by mediation, you can file it as a trial case (“the petition of a divorce invalid check“, “the petition of marriage cancellation“) at the same Family Court.

In that case, you can naturally request to your husband the consolation money because of his infidelity, abandonment, and the forgery of a divorce notice with the distribution of property further.

You will recover your marital status if one of the above-mentioned solutions is accepted.

That is, you are possible to reenter into Japan again as a “Spouse of Japanese national” only if the period of penalty would have passed over, of course.

2. Method that reenters Japan as a “Real mother of the child who has Japanese national”

It is not necessary to perform the procedure mentioned above.

You yourself apply for a “Temporary-Stay visa” at Japanese Embassy in Manila.

In that case, you yourself must explain that your purpose of visit to Japan is the custody and bringing up independently your Japanese child by birth in Japan, showing your child’s Japanese passport.

Although the Temporary-Stay visa is to go via substitute application organizations (travel company etc.) usually, the case of “Being custody and bringing up a Japanese child by birth” like your case can make the visa application at Japanese Embassy directly by yourself after you visit there.

Please keep in mind that this application is always handling at Japanese Embassy only in Manila, but not treating at resident office in Cebu and Davao.

On the other hand, it does not exist the Immigration status, “The real mother of the child who has Japanese National” in the present Immigration Control and Refugee Recognition Law.

Therefore, you have to come into Japan by a “Temporary-Stay visa” first, and then you have to change your Immigration status from “Temporary-Stay” to “Long Term Resident” in the nearby Immigration Bureau promptly.

As you see, it is possible to carry out the formalities of the above “1.” after you would be changed your Immigration status.

3. The method of which a divorce notice is not submitted without notice by a Japanese spouse

Unfortunately, your case does not do any longer. However, for your information please find the method as I comment as follows. Go to an office of city, ward, town and village where you are now residing, and explain about your situation to which a divorce notice may be submitted by Japanese spouse without your notice. Then, you will receive a “Non-received proposal document of divorce-by-agreement report (See the sample)” and request to fill in this form from clerk of municipal office. You can fill in it in English, teaching and getting the meaning of a column from the clerk, since all are indicated in Japanese.

The term of validity of this proposal document is just for “six months” only from the date of received. Therefore, you have to submit it anew if you want to continue the term of it. A divorce notice will not be received for six more months.

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