2020.01.23

2019 (Kyo) 1

Minshu Vol. 74, No. 1

Decision concerning the existence of a claim regarding the sharing of living expenses arising from a marriage in the case where the parties divorce after either of them filed a petition for adjudication on the sharing of living expenses arising from the marriage

Case of appeal with permission against the ruling of the court of appeal to revoke a ruling of a disposition regarding the sharing of living expenses arising from a marriage

Decision of the First Petty Bench, quashed and remanded

Sapporo High Court, Decision of November 13, 2018

Even if a husband and wife divorce after either of them filed a petition for adjudication on the sharing of living expenses arising from the marriage, the petitioning party's claim regarding the sharing of living expenses arising from the marriage is not extinguished by reason of the divorce.

Article 760 of the Civil Code, Article 39 and Appended Table 2, row 2 of the Domestic Relations Case Procedure Act



Civil Code

Article 760

A husband and wife shall share the expenses that arise from the marriage taking into account their property, income, and all other circumstances.

Domestic Relations Case Procedure Act

Article 39

A family court shall, as provided for in this Part, adjudicate the particulars set forth in Appended Tables 1 and 2 as well as the particulars specified in this said Part.

Appended Table 2, row 2

Appended Table 2 (Related to Article 20, Article 25, Article 39, Article 40, Articles 66 to 71, Article 82, Article 89, Article 90, Article 92, Article 150, Article 163, Article 167, Article 168, Article 182, Article 190, Article 191, Article 197, Article 233, Article 240, Article 245, Article 252, Article 268, Article 272, Article 286, and Article 287; and Article 5 of the Supplementary Provisions)

Row

Marriage, etc.

2

Matter

Disposition regarding the sharing of living expenses

Legal basis

Article 760 of the Civil Code

The decision of prior instance is quashed.

The case is remanded to the Sapporo High Court.

Concerning the reasons for appeal stated by the counsel for final appeal, TOMOZAWA Taro, SAKURAI Kentaro, and OSHIMA Yui

1. According to the case records, the developments of this case are as follows.

(1) In May 2018, the appellant filed a petition against the appellee, who was her husband, for conciliation on the sharing of living expenses arising from the marriage.

(2) In July 2018, the appellant and the appellee reached successful conciliation on their divorce. In this conciliation, an agreement on equitable distribution of property was not made, nor was any settlement clause stipulated.

(3) The conciliation case on the sharing of living expenses arising from the marriage mentioned in (1) above was closed due to the failure to reach conciliation on the day on which the successful conciliation on divorce was reached as mentioned in (2) above. Accordingly, it is deemed that a petition for adjudication on the sharing of living expenses arising from the marriage (hereinafter referred to as the "Petition") was filed at the time of the filing of the petition mentioned in (1) above (Article 272, paragraph (4) of the Domestic Relations Case Procedure Act), and the case moved to the adjudication procedure.

2. While determining as summarized below, the court of prior instance dismissed the Petition on the grounds that since the appellant's claim against the appellee regarding the sharing of living expenses arising from the marriage had been extinguished, the Petition filed to demand the appellee to share the living expenses arising from the marriage until the time of the divorce was unlawful.

A claim regarding the sharing of living expenses arising from a marriage exists on the premise of the continuing existence of the marriage, and if a husband and wife divorce before the substance and other particulars of the claim regarding the sharing of living expenses arising from the marriage are specifically defined by a ruling of the family court, it should be said that not only is it impossible to define the substance or other particulars of the sharing of living expenses that will arise in the future, but it is also impossible in principle to define the substance or other particulars of the sharing of living expenses that arose from the marriage in the past, including living expenses that the husband or wife was unable to receive from the other party. If the parties do not reach an agreement on equitable distribution of property, and no settlement clause is stipulated, the claim regarding the sharing of living expenses arising from the marriage is extinguished by reason of the divorce.

3. However, the abovementioned determination of the court of prior instance cannot be upheld, for the following reasons.

With regard to a claim regarding the sharing of living expenses arising from a marriage under Article 760 of the Civil Code, the specific amount to be shared is defined and determined by an agreement between the husband and wife or by a ruling of the family court on a disposition regarding the sharing of living expenses arising from the marriage as prescribed in Appended Table 2, row 2, of the Domestic Relations Case Procedure Act (see 1962 (Ku) No. 243, the decision of the Grand Bench of the Supreme Court of June 30, 1965, Minshu Vol. 19, No. 4, at 1114). Given that the same Article provides that "A husband and wife shall share the expenses that arise from the marriage taking into account their property, income, and all other circumstances," the sharing of living expenses arising from the marriage exists on the premise that the parties continue to be in a marital relationship, and hence, it is clear that if the marital relationship is terminated by divorce after a petition for adjudication on the sharing of living expense arising from the marriage was filed, there is no room for either party to demand the other party to share living expenses arising after the divorce pursuant to that Article. However, in such case, there is no reason to consider that any rights under substantive law regarding living expenses arising from the marriage until the time of the divorce that were held by the parties during the period when they were in a marital relationship should necessarily be extinguished. The family court may define and determine the amount to be shared for living expenses arising from the marriage retrospectively (see the abovementioned decision of the Grand Bench of the Supreme Court of June 30, 1965). Therefore, it is appropriate to consider that the family court may also define and determine the specific amount to be shared only for the living expenses that arose from the marriage in the past until the time of the divorce, by taking into account the property, income, and all other circumstances of the husband and wife. This also holds true even if either party seeks equitable distribution of property against the other party, including payment for the settlement of living expense arising from the marriage.

Consequently, even if a husband and wife divorce after either of them filed a petition for adjudication on the sharing of living expenses arising from the marriage, it cannot be said that the petitioning party's claim regarding the sharing of living expenses arising from the marriage is extinguished by reason of the divorce.

4. The court of prior instance dismissed the Petition based on a determination that is contrary to the above, and this determination contains a violation of laws and regulations that obviously affects the court decision. The counsel's arguments are well-grounded, and the decision in prior instance should inevitably be quashed. The Court remands the case to the court of prior instance for further examination.

Accordingly, the Court unanimously decides as set forth in the main text of the decision.

Justice MIYAMA Takuya

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi