Family law in Japan

The ie (家) or "household" was the basic unit of Japanese law until the end of World War II: most civil and criminal matters were considered to involve families rather than individuals. The ie was considered to consist of grandparents, their son and his wife and their children, although even in 1920, 54% of Japanese households already were nuclear families.[1]

This system was formally abolished with the 1947 revision of Japanese family law under the influence of the allied occupation authorities, and Japanese society began a transition to a more Americanized nuclear family system. However, the number of nuclear families only slightly increased until 1980, when it reached 63%, and the Confucian principles underlying the "ie" concept only gradually faded and are still informally followed to some degree by many Japanese people today.

Marriage of Japan's formality takes the form of civil marriage. A marriage is effected by filing notification of it.[2] A wedding ceremony performed by a religious or fraternal body is not a necessary element for a legal marriage.

According to Articles 731–737 of the Civil Code,[2]

• A man before attaining 18 years of age, a woman before attaining 16 years of age, may not marry. (Article 731)
• A minor shall obtain the consent of at least one parent to marry. (Article 737)
• Bigamy is prohibited. (Article 732)
• [declared unconstitutional in 2016 by the Supreme Court[3]: A woman may not remarry within 6 months of the day of dissolution or cancellation of the previous marriage, except the case in which she both gets pregnant before the day and gives birth to the child. #1 (Article 733)]
• Lineal relatives by blood, collateral relatives within the third degree of kinship by blood #2, may not marry, except between an adopted child and his/her collateral relatives by blood through adoption. #3 (Article 734)
• Lineal relatives by affinity may not marry. #3 (Article 735)
• An adoptive parent or a lineal ascendant of an adoptive parent may not marry with an adopted child, his / her spouse, his / her lineal descendant, or a spouse of his / her lineal descendant. #3 (Article 736)

1. It is considered that this remarriage prohibition is to avoid confusion as to the identification of the child's father.
2. between one and one's sibling, uncle, aunt, nephew, niece by blood.
3. It may be a case in which this prohibition shall apply after the termination of a family relationship between the two parties.

If one or both in the couple is a Japanese national, the marriage is recorded in a family register with one concerned Japanese at its head.

It's a rule in principle that the two shall have the family name in common following their marriage. However, if one of them is a non-Japanese, this rule does not apply. They can use one of the spouse’s names as their family name or keep their names after marriage. If a Japanese spouse changes his/her family name to his/her spouse's, the name change must be filed within 6 months of the marriage.[4] In a family register, a foreigner doesn't have his / her own entry, while he / she can be recorded in it as a spouse, for example.[5]

A child born to a married woman is assumed to be the child of her husband, although her husband may file in family court to disavow paternity if the paternity of the child is questioned. If a child is born to an unmarried woman, or if paternity is disavowed by the mother's husband, the father may later claim paternity through family court proceedings, or the child may file in family court to force his or her father to be recognized as the father.

Children are given the family name of their parents at the time of birth. If the father is unknown at the time of the child's birth, the child is given the family name of the mother, but may have his or her name changed to the father's family name after the father recognizes paternity.

There are four types of divorce in Japan:

• Divorce by agreement (Kyōgi Rikon), based on mutual agreement.
• Divorce by mediation in a family court (Chōtei Rikon), completed by applying for mediation by the family court (for cases in which divorce by mutual agreement cannot be reached).
• Divorce by decision of the family court (Shinpan Rikon), which is divorce completed by family court decision when divorce cannot be established by mediation.
• Divorce by judgment of a district court (Saiban Rikon). If divorce cannot be established by the family court, then application is made to the district court for a decision (application for arbitration is a prerequisite). Once the case is decided, the court will issue a certified copy and certificate of settlement, to be attached to the Divorce Registration.

Foreign citizens must show evidence that they are able to be divorced in their country of nationality and that the procedures used in Japan are compatible with those of their home country.

Joint custody of children ends upon divorce. In a divorce by agreement, the husband and wife must determine which parent will have custody of each child. In other types of divorce, custody is determined by the mediator or judge, with a strong preference toward custody by the mother (especially with regard to children born after the divorce).

Both marriage and divorce can be as simple as submitting a one page form signed by two witnesses.

Japan has a system of family courts (家庭裁判所, Katei Saibansho) which have jurisdiction in the first instance over all intra-familial disputes, including divorce and child custody. Family courts employ a mediation system. These family courts will review any dispute, even non-legal ones, but will only accept them from individuals with a familial relationship. As a result, court mediation is often unaccessible to same-sex couples, since same-sex marriage is not recognized in Japan. Another issue regarding the mediation system is the lack of professionalism from the mediators. Officially, the mediation committee consists of a judge and two mediators. However, the judge is often not present and leaves the responsibility to the mediators, who are not professionally trained and only have to be older than 40 years old.[6]

Child adoption in Japan is relatively uncommon, mainly due to lack of government support and legal trouble encountered from the child's birth parents. In Japan, even if a parent is legally unfit to see their child, the parent is still the child's legal guardian and their consent is required for everyday decisions, such as the child's education or field trips that may pose safety concerns. This is an issue even for parents looking to adopt because a child adopted over the age of 6 will still be registered in their birth parent's koseki, as written in Article 817-2 of the Japanese Civil Code. As a result, if parents want a special adoption, where the child is registered under the new parent's koseki, the child has to be under the age of 6.[7]

There are two main places to apply to for adoption. The first is through the local Child Guidance Center, which is a government agency. In 2010, United Nations Convention on the Rights of the Child noted that the CGC staff did not seem to be properly trained to work in child services and did not seem to be promoting adoption.[8] In 2016, the Child Welfare Act was revised to explicitly state that the CGCs were responsible for the adoption process.[9] Furthermore, when adopting through government agencies, prospective parents must be Japanese married couples. The second is through a religious adoption agency. These private agencies are allowed to charge a fee for the adoption process, as opposed to the process being free through the government. [10]

Although there is no law banning birth by surrogacy in Japan, there is a strong stigma against it. For example, the Health Ministry has attempted to ban surrogacy before and has been banned by the Japanese Society of Obstetrics and Gynecology for ethical reasons since 2003.[11] As a result, Japanese couples tend to seek surrogate mothers abroad. This leads to the possibility of the child being stateless because the child must be registered in the koseki to be a Japanese citizen. Since the mother is not the child's birth mother and the father is not the birth mother's legal husband, the legal status of the child may end up in question. [12] A famous case of this issue is that of the Japanese actress, Aki Mukai, who had twins through an American surrogate mother in 2003 and Mukai's sons only had American citizenship. This resulted in a series of court cases that ultimately culminated in the Supreme Court concluding that surrogacy was ethically wrong and Mukai had to adopt her sons to be considered their mother.[13]

• International child abduction in Japan
• Family policy in Japan

• English translation (non-official) of Japanese family and inheritance laws (Parts IV and V of Civil Code)
• Colin P.A. Jones, 'In the Best Interests of the Court: What American Lawyers Need to Know about Child Custody and Visitation in Japan' Asian-Pacific Law & Policy Journal, Volume 8, Issue 2, Spring 2007
• The Japan Children's Rights Network - Extensive information on Japanese family law
• Takao Tanase, “Post-Divorce Laws Governing Parent and Child in Japan” - U.S. Department of State, 14 September 2010
• Takao Tanase, “Divorce and the Best Interest of the Child: Disputes over Visitation and the Japanese Family Courts”, Jiyu to Seigi vol.60, issue 12 (2009), pp. 9–27