Minutes of the tenth meeting of the Family Law Subcommittee of the Legislative
Council (provisional translation)
On December 14, 2021, the tenth meeting of the Family Law Subcommittee of theLegislative Council was held at the Ministry of Justice (in person and online). Nearly all
the members and non-voting members attended the meeting. The Chairman, Prof.
OMURA Atsushi, presided over the meeting.
Following the ninth meeting, the Subcommittee examined property distribution system
between spouses in the event of divorce, based on the meeting materials.
The Subcommittee first discussed the legal nature of the property distribution system
and whether factors to be taken into account in determining the content of property
distribution should be statutory. Under the current law, the legal nature of the property
distribution system is generally construed to consist of three elements: liquidation,
support, and payment for pain and suffering. In the discussion, although there was noobjection to the view that liquidation is the central element, other opinions werepresented: (i) that the element of compensation should be included, (ii) that the elementof support (including child support) should also be articulated, (iii) that the grounds
establishing an obligation of support in property distribution are not clear, and (iv) thatchild support should be considered in the context of another right to claim payment forchild support. Regarding payment for pain and suffering, it was pointed out that thepayment through property distribution would facilitate the one-time settlement of disputes,
while another opinion was also expressed that such a pecuniary payment should be sought
as a claim for damages rather than as the distribution of property. As for the making thefactors for property distribution statutory, many positive opinions were shared, and it wasviewed that further deliberation is required.
Discussions were then held on the scope of property subject to distribution, the process
for distribution by liquidation, and the appropriateness of adopting a rule to permit theformer spouse to continue to live in the marital residence after divorce. Regarding thescope of property subject to distribution of properties, discussions were held on whether
to formalize the so-called one-half rule, that is, the contribution to the acquisition of themarital property to husband and wife should basically be equal unless it is clear that thehusband and wife have contributed in different degrees. In this context, some suggested
that it is necessary to clearly establish the one-half rule to ensure equality between
husbands and wives, while others expressed different opinions, arguing that it is difficult
to set a single rule that fits all situations given the increase in diversity of family lifestyles.
Concerning the appropriateness of a special rule on the material residence, some pointed
out that it is necessary to ensure that a former spouse who continue to live in the marital
residence with a minor child has legal protection, while others stated that, in the absenceof an agreement between spouses, various perspective need to be considered, such as thetime period, and the rights of the owner of the residential building etc..
Subsequently, discussions were held on other issues, including the extension of theperiod to claim distribution of property, the appropriateness of ruling on cases where theproperty of the other party is required to be disclosed, and the relationship between theright to claim distribution of property and the right to claim partition of property in coownership.
At the next meeting, the Subcommittee will examine the remaining issues that have notbeen discussed in previous meetings.
※These minutes are the responsibility of the Secretariat of the Committee, which has provided thissummary of the outcome of the meeting as a preliminary report in English.