Overstaying in Japan After Divorcing a Japanese Spouse: Your Status of Residence, Your Child, and Special Permission to Stay

You lived in Japan on a "Spouse or Child of Japanese National" (日本人の配偶者等) status of residence, you divorced, and then your period of stay expired. This is a situation we are asked about often. In many cases the renewal date arrived while the person was absorbed in divorce negotiations and in arranging a child's daily life; in others, a renewal application was filed but not granted. If you are in Japan today past your permitted period of stay, you are probably living with a constant worry about when the Immigration Services Agency or the police will appear. The first thing to understand is that the law provides a path through this situation, and that what you do, and at which stage you do it, changes the outcome substantially.

Does my status of residence disappear on the day I divorce a Japanese spouse?

No. It does not vanish on the day of the divorce. However, "Spouse or Child of Japanese National" is a status of residence founded on the family relationship with a Japanese spouse. Divorce removes that foundation, so when the period of stay expires, renewal under the same status of residence is, as a rule, not granted.

Two further points matter. First, if you remain in Japan for six months or more without carrying out the activities of a spouse, you may become subject to revocation of your status of residence, unless there is a justifiable reason (Article 22-4 of the Immigration Control and Refugee Recognition Act, referred to below as the Immigration Control Act). Second, when you divorce a Japanese spouse or your spouse dies, you must notify the Immigration Services Agency within 14 days of that date (Article 19-16). If your period of stay has not yet expired, there may still be room to apply to change to another status of residence, for example on the basis of raising a child. The procedures available to you before expiry and after expiry are completely different.

What legal consequences arise if I overstay after a divorce?

Criminal liability and administrative liability arise at the same time, and they proceed as two separate processes.

On the criminal side, remaining in Japan beyond your period of stay without obtaining an extension or a change of status constitutes the offence of illegal overstaying under Article 70, paragraph (1), item (v) of the Immigration Control Act. The statutory penalty, set out in the main clause of that paragraph, is kōkinkei (custodial sentence) of up to three years, or a fine of up to 3,000,000 yen, or both. Overstaying is therefore not only an administrative matter; it is a criminal offence.

On the administrative side, the same facts constitute a ground for deportation under Article 24, item (iv)(b) [ロ]. A common misunderstanding is that a non-prosecution disposition, or a suspended sentence, means the residence problem has gone away. Article 24, item (iv)(b) is satisfied by the bare fact of remaining beyond the period of stay, regardless of the criminal outcome. Even if the criminal disposition is light, the deportation procedure proceeds separately.

Does a longer overstay mean a heavier criminal penalty?

The statutory penalty itself does not change with the length of the overstay. What changes is the prosecutor's choice of disposition and the range of sentencing. In practice, the length of the overstay, understood as the period during which the unlawful state was maintained, is treated as a central factor bearing directly on the severity of the disposition. Cases in which the period is relatively short, the person came forward voluntarily, and the basis of daily life is clear tend toward lighter dispositions; cases in which the period is long, unlawful work is involved, and further violations such as forged documents are added tend toward heavier ones. That said, there is a range, and the outcome depends on the individual case.

It is equally important to see that the severity of the criminal disposition and the ability to remain in Japan are separate questions. Looking at it from the other direction, if you receive an actual custodial sentence exceeding one year, a heightened requirement applies to special permission to stay (the proviso to Article 50, paragraph (1)). For that reason, the work of reducing the criminal disposition and the work of obtaining special permission to stay must be designed together from the very first step.

If I am raising a child who holds Japanese nationality, can I be allowed to stay?

It is possible, but no result can be guaranteed; it depends on the individual circumstances.

Even where a person falls within the category of persons subject to deportation, the Minister of Justice may grant special permission to stay, either upon the foreign national's application or ex officio (Article 50, paragraph (1)). Most overstay cases following a divorce are decided under item (v) of that paragraph: "when the Minister of Justice finds that there are other grounds for which special permission to stay should be granted."

The matters to be considered are set out in the statute itself (Article 50, paragraph (5)): the reasons for wishing to stay, family relationships, conduct, the circumstances of entry into Japan, the length of residence in Japan and the legal status held during that time, the facts constituting the ground for deportation, the need for humanitarian consideration, and, in addition, domestic and international circumstances, the effect on illegal residents in Japan, and other circumstances.

Actually having custody of and raising a child with Japanese nationality bears directly on "family relationships" and on "the need for humanitarian consideration." What carries weight in practice is not only the formal question of which parent holds parental authority on paper, but the reality of who performs the daily care. Living arrangements, day-to-day caregiving, contact with the school or nursery, accompanying the child to medical appointments, the payment or receipt of child support, and the child's schooling are all facts to be shown with objective evidence.

Will violence by my former spouse be taken into account?

Yes, it can be taken into account. The Guidelines on Special Permission to Stay (revised in March 2024 and in force from 10 June 2024) explain how each of the matters listed in Article 50, paragraph (5) is assessed, and a history in which violence by a spouse made it impossible to continue the marriage is situated among the circumstances relevant to the reasons for wishing to stay and to the need for humanitarian consideration. As a general matter, there are cases in which protection received from public agencies has been evaluated favourably.

Records therefore matter: consultation records held by a spousal violence counselling and support centre, records of consultations with or reports to the police, court documents concerning protection orders, medical certificates, and records of protection provided by a municipality or a support organisation. These are, however, deeply sensitive matters. Which documents to submit, at which stage, and how far to go, must be decided with the safety of you and your child as the first priority, including care to avoid disclosing your address and daily circumstances to the other party. We recommend deciding this strategy together with a lawyer.

Can a departure order still be used after a divorce-related overstay?

Yes, if the requirements are met. A departure order procedure does not presuppose detention. Article 24-3 applies to a foreign national who falls under Article 24, item (ii)-4, item (iv)(b), or items (vi) to (vii), and who satisfies all five of the following requirements.

• Falling under (a) [イ] or (b) [ロ]. Under (a), the person appeared voluntarily at a regional immigration services office, with the intention of leaving Japan promptly, before the commencement of a violation investigation under Article 27. Under (b), the person, after a violation investigation had begun but before receiving the notice under Article 47, paragraph (3), stated to an immigration inspector or immigration control officer that he or she intends to leave Japan promptly.
• Not falling under Article 24, items (iii) to (iii)-5, item (iv) sub-items (c) [ハ] through (yo) [ヨ], item (viii) or item (ix).
• Not having been sentenced to kōkinkei, after entering Japan, for certain offences under the Penal Code (breaking into a residence; counterfeiting of currency, documents, securities, or electromagnetic records of payment cards; gambling; homicide; injury; unlawful capture and confinement; kidnapping and abduction; theft and robbery; fraud and extortion; stolen property), or for offences under Articles 1, 1-2 and 1-3 of the Act on Punishment of Physical Violence, the Act for Prevention of Theft, Articles 15 and 16 of the Act on Prohibition of Possession of Special Picking Tools, Article 2 or Article 6, paragraph (1) of the Act on Punishment of Acts Inflicting Death or Injury on Others by Driving a Motor Vehicle, or Article 22 of the Act on Prevention of Disposal of Stolen Specified Metal Products.
• Never having been deported from Japan, and never having departed under a departure order issued pursuant to Article 55-85, paragraph (1).
• Being reliably expected to leave Japan promptly.

Where a departure order is issued, the supervising immigration inspector orders prompt departure and sets a departure deadline not exceeding 15 days (Article 55-85, paragraph (1)). Conditions such as restrictions on residence and area of movement may be attached (paragraph (3) of the same Article).

When can I apply for special permission to stay?

The timing is fixed by statute. An application for special permission to stay is made to the Minister of Justice, in accordance with the procedure prescribed by Ministry of Justice ordinance, by a foreign national who has been detained under a written detention order or who has received a decision on supervision measures (Article 50, paragraph (2)). Before that point there is no formal right to apply, and the work consists of building the record so as to prompt the Minister to act on his or her own authority. Conversely, once a written deportation order has been issued, no application can be made (Article 50, paragraph (3)). After that, the matter moves into judicial remedies, such as an action to revoke the disposition and a petition for a stay of execution, where both the burden and the difficulty rise sharply.

The point of decision is also fixed: special permission may only be granted after the person has accepted the finding under Article 47, paragraph (3) or the determination under Article 48, paragraph (8), or after the Minister of Justice has ruled that the objection is without grounds (Article 50, paragraph (4)). The sequence is: violation investigation (Article 27 and following), written detention order (Article 39) or decision on supervision measures (Article 44-2, paragraph (7)), violation examination by an immigration inspector (Article 45 and following), finding (Article 47, paragraph (3)), request for a hearing (Article 48), determination by a special inquiry officer (Article 48, paragraph (8)), objection to the Minister of Justice (Article 49), ruling, and then either special permission to stay (Article 50) or issuance of a written deportation order (Article 51). Where special permission is refused, the person must be notified promptly in writing with reasons attached (Article 50, paragraph (10)).

One point works in favour of divorce-related overstay cases. The proviso to Article 50, paragraph (1) provides that, for a person sentenced to kōkinkei for an indefinite term or exceeding one year (excluding a person given a full suspension of execution, and a person given a partial suspension where the unsuspended part is one year or less), or a person falling under Article 24, item (iii)-2, item (iii)-3, item (iv)(c), or item (iv) sub-items (o) [オ] through (yo) [ヨ], permission may be granted only where there are found to be special circumstances such that refusing permission to stay in Japan would be lacking in humanitarian consideration. A case that involves only illegal overstaying (Article 24, item (iv)(b)) is not subject to that heightened requirement.

Why acting before you are detected matters

In divorce-related cases, whether you come forward yourself or wait to be detected changes the roads that remain open to you.

First, the period of denial of landing changes. If you appear voluntarily before a violation investigation has begun, you fall under Article 24-3, item (i)(a), and if you then leave Japan under a departure order the period of denial of landing is one year from the date of departure (Article 5, paragraph (1), item (ix)(e) [ホ]). By contrast, if you express the intention to depart only after a violation investigation has begun (item (i)(b)), and you later seek to come to Japan for temporary visitor activities, the period is five years from departure (Article 5, paragraph (1), item (ix)(f) [ヘ]). Further, if detection means the requirements for a departure order are not met, deportation follows, with five years from the date of deportation (item (ix)(c) [ハ]), or ten years where there is a prior deportation or departure order (item (ix)(d) [ニ]).

Second, the assessment changes. The Guidelines expressly treat the fact that the foreign national appeared voluntarily at a regional immigration services office in order to report unlawful residence as a positive factor, while prolonged unlawful residence is assessed as a negative factor. In a case where you are asking to remain in order to raise your child, this matters all the more: the longer you wait, the more negative factors accumulate.

Third, the quality of preparation changes. If you can choose the timing of appearing, you can first assemble evidence of the reality of your care for the child, evidence of your basis of daily life, and, where there has been violence, records held by public agencies. A sudden detection leaves no room for that preparation. Special permission to stay is positioned as an exceptional and discretionary measure granted to a foreign national who ought to be deported, and a difference in preparation can translate directly into a difference in outcome.

About our office

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo) concentrates on criminal defence for foreign nationals and on immigration procedures, primarily for clients of Chinese nationality. Daisuke Matsumura, attorney at law (Daiichi Tokyo Bar Association), handles every stage personally, from the first visit to a detained client through to the conclusion of the criminal trial and the immigration procedures that follow; the work is not delegated to clerks or junior lawyers. For Chinese, a dedicated interpreter experienced in cases involving foreign nationals is permanently on staff, so that a client can use an interpreter working for the client, separate from the interpreter designated by the investigating authorities; for other languages, we arrange an interpreter according to the needs of the case. Renewals and changes of status of residence after the criminal process are handled on a one-stop basis together with an affiliated administrative scrivener.

In matters involving divorce and status of residence, our record includes the following.

• A client who had come to Japan as a tourist had a child with a Japanese woman, lost his status of residence, and was arrested and prosecuted for unlawful residence. The marriage and acknowledgement of paternity had not been completed, and the authorities initially refused to accept the filings. Mr Matsumura negotiated with the authorities from a constitutional standpoint, secured the marriage and the acknowledgement, and conducted the defendant questioning and witness examination with the immigration criminal trial in view. Although almost no official documents were available from the country of nationality, favourable evidence was gathered and past grant cases of the immigration authorities were analysed, and special permission to stay was obtained in a single round of proceedings.
• A woman was wrongly accused of the offence of promoting unlawful employment and faced deportation. Against the established practice that a ground for deportation requires neither intent nor negligence, proceedings were brought questioning the reach of the principle of culpability, and the matter was contested up to the appellate stage. Subsequently, the immigration authorities granted special permission to stay.

The first consultation is free of charge. Fees are quoted according to the case. Where the person concerned is in custody, we also accept consultations from family members.

In closing

When the foundation of a status of residence is lost through divorce, leaving the situation untouched allows only the negative factors to accumulate. If you consult us at an early stage, it becomes possible to choose the timing of appearing, to assemble the evidence, and to design the response to the criminal case and the effort to obtain special permission to stay as a single strategy. This article is a general explanation; for your own case, please consult a lawyer directly. Past results are based on the particular circumstances of each case and do not guarantee a similar outcome.

Author

Daisuke Matsumura, Attorney at Law

Daiichi Tokyo Bar Association (registration number 59077, admitted 2019)

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo)

Concentrates on criminal defence for foreign nationals and immigration procedures, primarily for clients of Chinese nationality.

Results include an acquittal in a case under the Stimulants Control Act (possession for the purpose of profit), a non-prosecution disposition in a special fraud case, and the grant of special permission to stay in a case regarded as difficult.

Contact

Funado International Law Office

Website: https://matsumura-lawoffice.jp/

WeChat ID: matsumura1119

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