Family law in Japan
Encyclopedia
The main family law
of Japan
is Part IV of . have such provisions as on and notification to the public office.
(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.
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.
family
of Japan's formality takes the form of civil marriage
. A marriage is effected by filing notification of it. 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,
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.
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.
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.
in Japan:
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).
system.
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
of Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
is Part IV of . have such provisions as on and notification to the public office.
Background
The IeIe (Japanese family system)
The , 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 is considered to consist of grandparents, their son and his wife and their children , although even in 1920,...
(家), or "household
Household
The household is "the basic residential unit in which economic production, consumption, inheritance, child rearing, and shelter are organized and carried out"; [the household] "may or may not be synonymous with family"....
," was the basic unit of Japanese law
Japanese law
-Historical Developments:Pre-Modern History The early law of Japan was heavily influenced by Chinese law. Little is known about Japanese law prior to the seventh century, when the Ritsuryō was developed and codified. Before Chinese characters were transplanted and adopted by the Japanese, the...
until the end of World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
: 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.
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
Nuclear family
Nuclear family is a term used to define a family group consisting of a father and mother and their children. This is in contrast to the smaller single-parent family, and to the larger extended family. Nuclear families typically center on a married couple, but not always; the nuclear family may have...
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.
family
Family
In human context, a family is a group of people affiliated by consanguinity, affinity, or co-residence. In most societies it is the principal institution for the socialization of children...
Marriage
MarriageMarriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
of Japan's formality takes the form of civil marriage
Civil marriage
Civil marriage is marriage performed by a government official and not a religious organization.-History:Every country maintaining a population registry of its residents keeps track of marital status, and most countries believe that it is their responsibility to register married couples. Most...
. A marriage is effected by filing notification of it. 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,
- 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 consentConsentConsent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
of at least one parent to marry. (Article 737) - BigamyBigamyIn cultures that practice marital monogamy, bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy is a crime in most western countries, and when it occurs in this context often neither the first nor second spouse is aware of the other...
is prohibited. (Article 732) - 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 kinshipKinshipKinship is a relationship between any entities that share a genealogical origin, through either biological, cultural, or historical descent. And descent groups, lineages, etc. are treated in their own subsections....
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)
- It is considered that this remarriage prohibition is to avoid confusion as to the identification of the child's father.
- between one and one's sibling, uncle, aunt, nephew, niece by blood.
- 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
Koseki
A is a Japanese family registry. Japanese law requires all Japanese households to report births, acknowledgements of paternity, adoptions, disruptions of adoptions, deaths, marriages and divorces of Japanese citizens to their local authority, which compiles such records encompassing all Japanese...
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.
In a family register
Koseki
A is a Japanese family registry. Japanese law requires all Japanese households to report births, acknowledgements of paternity, adoptions, disruptions of adoptions, deaths, marriages and divorces of Japanese citizens to their local authority, which compiles such records encompassing all Japanese...
, a foreigner doesn't have his / her own entry, while he / she can be recorded in it as a spouse, for example.
Children
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.
Divorce
There are four types of divorceDivorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
in Japan:
- Divorce by agreement (Kyōgi Rikon), based on mutual agreement.
- Divorce by mediation in a family court (Chōtei Rikon), completed by applying for mediationMediationMediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
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 courtFamily courtA family court is a court convened to decide matters and make orders in relation to family law, such as custody of children. In common-law jurisdictions "family courts" are statutory creations primarily dealing with equitable matters devolved from a court of inherent jurisdiction, such as a...
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
Joint custody
Joint custody is a court order whereby custody of a child is awarded to both parties. In joint custody both parents are custodial parents and neither parent is a non-custodial parent, or, in other words, the child has two custodial parents. In the United States, many states recognize two forms of...
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).
Dispute resolution
Japan has a system of which have jurisdiction in the first instance over all intra-familial disputes, including divorce and child custody. Family courts employ a mediationMediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
system.
External links
- 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