Family law in Japan

Japanese family law is based on European civil law and Chinese Confucian principles.

Background

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.

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

Marriage in Japan takes exclusively the form of civil marriage by filing a notification of marriage with the competent Japanese municipal government office. This requirement applies irrespective of the nationality of either spouse.

Only this civil notification constitutes a legal marriage in Japan. Ceremonies performed by religious or fraternal bodies in Japan, while perhaps more meaningful for the couple, are not legal marriages. Consular officers cannot perform marriages.

Article 731 to 737 of the Japanese Civil Code set forth the following requirements:

• The male partner must be 18 years of age or older and the female partner must be 16 years of age or older. A person who is under 20 years of age cannot get married in Japan without a parent's approval.
• A woman cannot get married within six months of the dissolution of her previous marriage. According to Japanese law, this is to avoid confusion as to the identification of a child's father if a birth occurs close in time to the end of the marriage.
• Most people related by blood, by adoption or through other marriages cannot get married in Japan.

Japanese law requires all foreigners who marry in Japan to first submit a Certificate of Competency to Marry (婚姻要件具備証明書, kon'in-yōken gubi shōmeisho), affirming they are legally free to marry, from their own country's embassy or consulate in Japan.

If either spouse is a Japanese national, the marriage is recorded in a family register, which must be under the family name of one of the spouses. This means that Japanese spouses must assume the same family name following their marriage. However, if one spouse is a foreigner, this rule does not apply, as foreigners cannot have their own entries in a Japanese family register (although they may be recorded as a comment in the register of their spouse)

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 divorce in Japan:

• Divorce by agreement (kyogi rikon), based on mutual agreement.
• Divorce by mediation in a family court (chotei 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 (shimpan 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).

Dispute resolution

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.