Historic and Cultural Background on Divorce in Japan

As with any other country, Japan’s historic cultural values are to an extend often still reflected in its current laws. Culture is custom and customs became law.

Custom / Culture
Upon marriage one of the spouses, mostly the woman, would join into the household of the other spouse. Then when there was a divorce it was the person who earlier moved into the household who would need to move out. The original family/household would normally accept the returnee and support her, or him. The couple’s child(ren) often stayed at the marital household under the custody of the remaining parent and his/her family. This is were they were born and raised and this was seen as the responsible household.

Looking back at Japan’s pre-industrial era we see that traditionally a man could divorce a woman with just a short note. Women didn’t have that luxury and could often only escape marriage by going for example into a convent. Many men did divorce and the divorce rates were traditionally quite high. Society and the state, or government, would rarely venture into the private matters of marriage and divorce. Certainly not for the masses.

The household in which the couple lived during marriage was as much about family as it was about economics. Children were not only there to ensure the familial heritage but also to secure the household’s economic future, benefiting the whole household. To date there can legally be only sole custody upon divorce which is linked to the household.

Law and modernisation

A year after the enactment of the new Meiji Civil Code the divorce rates started to decline. This drop in divorces lasted until 1963/64. The reasons are attributed to seeing the household, and thus marriage, as part of society. A strong household benefited the whole community. However, since the 1960’s divorce rates have been on the increase as now individual happiness is reportedly more of an accepted consideration. Since WW2 Japan saw changes towards individualism and women’s rights. As the political and societal ideology, which previously controlled people, was weakened, material affluence through economic development became dominant and greatly influenced the Japanese ways of life.

However, even though we see these aspects of modernisation, attitudes towards children in marriage, or upon divorce, have largely remained the same. Traditionally a divorce, where it came to the child, was a full divorce with the head of the household keeping sole custody. Shared custody is in a historical sense new to Japan. The woman regarded as the nurturing parent has seen little change, but her rights to independence have.

State – hands off!
Both public sentiment and the state’s own approach is that divorce is a private matter for the household where the state should not be involved. There is no need for big brother to come into the private affairs of a household (or two) where it comes to these private matters. This also means that parents know it is up to them to sort things out.

Taking custody into your own hands
Let’s go with the presumption that both parents love and care for their children. The traditional and current approach to the child and divorce is that there can only be one parent/household for that child. However, now in modern times we had somewhat stepped away from leaving the child in the marital household. Preindustrial households with multiple generations and members are not common anymore. Now, parents may consider each other as a competitive factor for sole custody. As the laws don’t give proper protections for shared custody parents may consider, “first come is first served”. Thus, take your child or otherwise you can loose access/custody yourself. In divorces the couple has often fallen out and may not always consider the other parent objectively or fairly. And objectively looking at what is right and best for the child is a difficult exercise, especially when the culture, attitudes and laws haven’t changed much. This results that these days you see both men and women taking sole custody into their own hands.

Court and mediation
While Japan does have its courts, and forms of mediation, where it comes to divorce there hasn’t been much change yet. We may see more and more judges looking at the child’s best interest in some proceedings. However, also there the cultural and historic view and attitudes, of a single household/single guardianship giving the best stability to the child, results in little to little or no visitation rights etc.

Foreigners and Divorce in Japan
Like many countries, Japan may still see foreigners as second rate, temporary guests. This is reflected in so many aspects of life in Japan. However, there have also been positive changes and a modernisation in this. Where it comes to divorce this may not always be reflected as such. Overcoming the idea that a foreigner is not there for the long term for the child, merely a guest in the country, feeds into the preconception and cultural background of the child being better of with the Japanese parent.

Divorce in Japan today

Many Japanese parents struggle with the same issues where it comes to divorce as foreigners do. They too are often victim of parent-kidnapped children. For foreigners this can become even more challenging. When a few years ago I came across the case of Vincent Vichot I followed this with a sad interest. Unfortunately Vincent is now on a hunger strike as he sees no other recourse.

Japan is still modernising
While we whole heartedly agree with the preference for the state and authorities not to involve too much into civil matters, where these can’t be resolved in a beneficial manner for the child, and fair manner to both parents, the authorities and courts should not just look away and ignore the plights. Don’t let parents and children suffer. EU letter to Japanese minister of justice (Japanese/English). Japan has signed a number of treaties, conventions, and doing so Japan does recognise a change to modernisation. However, it will need to then also act on this and that may first require a cultural change.

What could parents in Japan do!?
Stay being vocal, diplomatic but insistent. Don’t give up hope. Don’t give up. Don’t be send away. There is always hope. And take good care of yourself because your child would (later) not understand if you did not. Survive to be there for your child, if not today, if not tomorrow, one day. And for everyone, don’t do to others what you don’t want to have done to yourself.

What can Japan do!?

Make shared custody available in law
The cultural legal approach to separation and divorce needs to step away from the concept of sole custody. The emotional bond of a child with both parents during its lifetime needs to be recognised and protected. This affects the wellbeing of a child. The emotional bond a parent has with the child should also be respected. Only where there are extreme situations reflecting real abuse, not just accusations, or the inability to care, should authorities or a court consider sole custody, or reduced interaction. The Japanese Civil Code needs to expand the possibility of joint custody, currently only limited to during marriage. Joint custody after separation or divorce must be legislated for.

Improve on visitation rights
When stepping away from the limitation of sole custody, any visitation rights decisions should preferably be agreed upon by both parents (respecting the state non-interference culture) but can be challenged by either parent or the child. Where the deciding authority considers such a challenge it should consider, in accordance with the conventions and modern psychological/health research, that the child normally benefits from access to both parents. While mediation and soft conflict resolution methodologies are welcomed ultimately a court must review any conflict where the child or one of the parents states that no satisfactory resolution could be found.

Japanese law is lacking legislation which guides how visitation rights can be considered, reviewed, awarded and respected. Although more Japanese judges seem to grant more visitation rights to the non-custodial parent, there is still a lack of proportionate time frames (i.e. how long the child spends with both parents) and overnight stays. The premise of 60/40 should always be strived for unless, the parents otherwise agree, or this is practically not possible for the parents, or contrary to the best interest of the child.

Consider the impacts of adoption first
Currently the Japanese law allows a new spouse of the parent with custody to adopt the child. While this can benefit the new family unit and relationships, this should not be done without permission of both biological parents and a Japanese authority or court considering the best interest of the child. Also children who are capable to understand the situation and can express their wishes should be heard by any authority or the court.

Change civil registration system
Japan should review its use of its traditional civil family registry system, household registration (Koseki). Without too much of a change this could become similar to the Dutch family registration cards in use until 1939 or it’s modern civil registry system today, or the current Thai household registration book (Tabien Baan). Stepping away from the traditional family registry to a household/residency registry where custody arrangements don’t have to impede on the system. Practically the current laws do not allow a foreign spouse to be registered as head of the family (Hittousya) in the “Koseki” and upon divorce a foreign spouse cannot have its own entry. Nor can a non-Japanese parent be registered on the same “Koseki” that holds their children’s information, even where they have sole custody.

Provide cultural and legal training
Cultural approach to nationality and rights should be reviewed and officials and courts should be trained to step away from the current approach of regarding foreign parents as less deserving. Both parents created the child, both bear responsibility for the child throughout its life, and both should be awarded equal rights where appropriate. Currently a foreign spouse does not enjoy the same status as a Japanese national where it comes to the possibility to obtain custody over a child. This is totally contrary to the conventions Japan signed up to.

Recognise that parental abduction is another type of… abduction
Removal of a child by one parent away from the other parent without their permission should be seen by all authorities as abduction. Police authorities should be given clear guidelines on this, as they will want to determine at the police station to treat a case as a crime or private matter. When abduction occurs, domestically or internationally, police authorities need to be empowered to quickly return children to their usual domicile unless they fear for the safety or health of the child. This needs to be legislated for in Japan’s national laws in line with the conventions. The parent abductor should not be immediately seen as a criminal and punished or incarcerated, unless there is an immediate threat to the wellbeing of the child or others. Police authorities should refer conflicting parents to relevant support organisations, authorities, the legal system/courts. Child welfare authorities should only be contacted where there is an objective perceived risk to the child. In order to resolve any conflicts authorities should be allowed to temporarily stop the child from being moved domestically or internationally. Authorities or court should be involved immediately to consider any conflicting travel or moving plans and resolve this within a short timeframe.

Empower courts
Courts should be empowered to enforce judgements. Japanese civil law currently has difficulties with enforcing judgments even if there is a clear win by one side. Judges have little powers to sanction or imprison a party for contempt of cour and there is no mechanism for the police to assist the court in these matters.

Award immigration status or nationality status to parents.
Immigration and naturalisation laws should positively consider the continued, or new stay, of a parent of a child resident in Japan. Either on a temporary visitor status or on a permanent resident basis. Quick access to citizenship for spouses or parents of Japanese nationals should be made possible.

Equal access for foreigners
Sufficient social, health and welfare services must be made available to foreign children and spouses, or former spouses, of Japanese nationals.

Allow dual nationality
Dual nationality of a child, or spouse, or former spouse, of a Japanese national must be made possible throughout the child’s life, also as an adult. This is currently too restrictive (Japanese nationality act). Dual nationality/citizenship of a child should not result in lesser rights with respect to a foreign parent.

Convention on the Rights of the Child

Japan: signed 1990, ratified 1994

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

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Article 5

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

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Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.

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Article 8

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

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Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

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Article 10

1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.
2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.

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Article 11

1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.
2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.

NOTE
Please note that many/most cases in Japan relate to domestic abductions and thus the 1980 “Hague Convention on the Civil Aspects of International Child Abduction” does not apply to those domestic cases, including if a foreign ‘resident’ parent is involved. However, the principles on shared custody and what is best for the child within the treaty are universal. Once the treaty is really implemented in local Japanese law this will benefit domestic abduction cases as well.

All parents want to be treated fairly and evenly, all healthy children want both parents. And where a divorce is due to abuse and violence towards one parent, or a child, that is where a court can order appropriate protection measures. Until a court needs to intervene as such, balanced family relationships after divorce creates more balanced and happy children and thus stronger future citizens.