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Hi Blog. I often stop by an excellent website run by some young-Turk commentators on Japan called Mutantfrog. Full of insight and well-thought-out essays, one caught my eye a few weeks ago regarding what the Savoie Child Abduction Case has brought to the fore about divorce in Japan. I won’t quote it in full (let’s give the hits to Mutantfrog), but here’s the link and an excerpt:
http://www.mutantfrog.com/2009/10/08/all-thats-wrong-with-international-divorce-in-japan/
Here’s Joe’s conclusion:
I don’t have a wife or kids yet. Debito, who has written extensively about his own divorce and loss of children (a dreadfully sad story, but an excellent overview of how the system works here), chided me in a Facebook comment thread for daring to state my opinions while I lack skin in the game. Lest anyone get the wrong idea, I respect Debito, who gave me, Roy and Curzon the privilege of hearing his story in person a good year before he made it public. But where I come from, having no skin in the game is called “objectivity,” and does not by any means disqualify an opinion.
For what it’s worth, I do have some skin in the game, as I am engaged to get married early next year. While I have given up on my farcical plans to transfer my kids to an offshore investment vehicle, I am still very cognizant that the law (even as I think its mechanics should work) may bite me in the rear someday if my marriage ever breaks down.
Sadly, a lot of the discussion surrounding these issues, whether regarding particular cases or the system in general, devolves into parental narcissism, envy and finger-pointing. The whole framework of marriage, divorce and custody is ultimately not about what Mom or Dad wants: it’s about protecting children and giving them a chance to inherit the world as capable individuals. So, as I see it, we have to approach it from that perspective regardless of which side we occupy on the wedding cake.
Of course. So from a more neutral perspective, I conclude this:
NOBODY SHOULD GET MARRIED AND HAVE CHILDREN UNDER THE CURRENT MARRIAGE LAWS AND FAMILY REGISTRATION SYSTEM IN JAPAN.
NOT JAPANESE. NOT NON-JAPANESE. NOT ANYONE.
Because if people marry and have kids, one parent will lose them, meaning all legal ties, custody rights, and visitation rights, in the event of a divorce. This is not good for the children.
Japan has had marriage laws essentially unamended since 1898! (See Fuess, Divorce in Japan) Clearly this does not reflect a modern situation, and until this changes people should go Common-Law (also not an option in Japan), and make it clear to their representatives that Japan’s current legal situation is not family-friendly enough for them to tie the knot.
Some reforms necessary:
- Abolition of the Koseki Family Registration system (because that is what makes children property of one parent or the other, and puts NJ at a huge disadvantage).
- Recognize Visitation Rights (menkai ken) for both parents during separation and after divorce.
- Recognize Joint Custody (kyoudou kango ken) after divorce.
- Enforce the Hague Convention on Child Abductions and the Convention on the Rights of the Child.
- Enforce overseas custody court decisions in Japanese courts.
- Recognize “Irreconcilable Differences” (seikaku no fuitchi) as grounds for divorce. See why here.
- Shorten legal separation (bekkyo) times from the current benchmark of around five years to one or two.
- Stock the Mediation Councils (choutei) with real professionals and trained marriage counselors (not yuushikisha (“people with awareness”), who are essentially folks off the street with no standardized credentials).
- Strengthen Family Court powers to enforce contempt of court for perjury (lying is frequent in divorce proceedings and currently essentially unpunishable), and force police to enforce court orders involving restraining orders and domestic violence (Japanese police are disinclined to get involved in family disputes).
There are plenty more suggestions I’m sure readers could make, but chew on that for awhile, readers. Arudou Debito in Sapporo
5 comments on “Mutantfrog’s Joe Jones’s excellent discussion of rights and wrongs of divorce in Japan; causes stark conclusions for me”
But it is also not wise to have children outside of wedlock in Japan, due to the legal and social challenges such children and their families still face. So it seems to me that the real difficulties revolve not around the act of marriage in and of itself, but the act of raising children in Japan.
Maybe the government might finally be prodded into action if someone makes the connection between Japan’s archaic marriage laws and the continually declining birthrate?
They could encourage the opening of more daycare centers while they’re at it. Even without the spectre of divorce, raising kids in Japan is no picnic if both parents have jobs. Daycare facilities are woefully inadequate and unlike other places (say, Hong Kong), hiring a low-cost live-in nanny is virtually impossible due to visa sponsorship requirements. It’s as if the GOJ wants women barefoot in the kitchen, pregnant or not.
It is not wise, indeed, and that is why the number of children born out of wedlock in Japan is surprisingly low. By difficulties, you mean legal difficulties or personal difficulties?
Debito’s “stark conclusion” is contingent upon “the event of divorce”, and while I find it absurd, I will concede that it does have rhetorical value.
>Japan has had marriage laws essentially unamended since 1898! (See Fuess)
Marriage laws as well as other family laws of Japan were entirely rewritten on December 22, 1947, right after the WW2 and while Japan was still under US occupation to comply with the new constitution of Japan that prohibited inequality between sexes.
Where in his book did he say so?
— We’re talking about marriage laws as regards to divorce matters.
It used to be really easy to divorce in Japan. Then it became difficult after 1898. That did not change in 1948 (it was, read again, 1948). It still is difficult to divorce if both parties don’t agree, and it encourages, as I’ve written, people to hold each other hostage for years if not decades. In any case, after divorce, the kids become property and sole possession of one parent etc., and that has never changed post-feudal Japan. Fuess himself said that Japan has “never experienced a divorce law revolution” (page 150, third paragraph), and you can read his analysis of the postwar situation between pp 146 -152.
The following are the clauses on child custody after divorce in the old Civil Code before substantial change on December 22, 1947.
http://www.geocities.jp/nakanolib/hou/m4_o.htm#民法第四編(民法旧規定、明治31年法律第9号)
第八百十二条 協議上ノ離婚ヲ為シタル者カ其協議ヲ以テ子ノ監護ヲ為スヘキ者ヲ定メサリシトキハ其監護ハ父ニ属ス
2 父カ離婚ニ因リテ婚家ヲ去リタル場合ニ於テハ子ノ監護ハ母ニ属ス
3 前二項ノ規定ハ監護ノ範囲外ニ於テ父母ノ権利義務ニ変更ヲ生スルコトナシ
Article 812
In case where parties to a consensual divorce did not decide who is to have child custody, the father shall have the child custody.
2. If the father leaves the house due to divorce, the mother shall have the child custody.
3. The provisions in the preceding 2 paragraphs do not alter the rights or obligations of the father or the mother other than child custody.
The following is the present rule.
第七百六十六条 父母が協議上の離婚をするときは、子の監護をすべき者その他監護について必要な事項は、その協議で定める。協議が調わないとき、又は協議をすることができないときは、家庭裁判所が、これを定める。
２ 子の利益のため必要があると認めるときは、家庭裁判所は、子の監護をすべき者を変更し、その他監護について相当な処分を命ずることができる。
３ 前二項の規定によっては、監護の範囲外では、父母の権利義務に変更を生じない。
Article 766 If parents divorce by agreement, the matter of who will have custody over a child and any other necessary matters regarding custody shall be determined by that agreement. If agreement has not been made, or cannot be made, this shall be determined by the family court.
(2) If the family court finds it necessary for the child’s interests, it may change who will take custody over the child and order any other proper disposition regarding custody.
(3) The rights and duties of parents beyond the scope of custody may not be altered by the provisions of the preceding two paragraphs.
— It still doesn’t deal with joint custody and child visitation issues, which have never changed in Japan. Are you following the debate, HO, or just nitpicking?