JAPANESE FAMILY LAW - OR THE LACK THEREOF!
By Jeremy D. Morley
After several years of struggling to understand the workings of the Japanese family law system on behalf of Japanese clients or non-Japanese clients with Japanese spouses, I have reluctantly concluded that the very term "Japanese family law" is something of an oxymoron. In other words, it is a phrase that contains inherently contradictory terms insofar as there really is not much of a system and it certainly does not protect the family, at least as we know it in the West.
A charitable view of the Japanese system of divorce is that it favors a "clean break" so that the divorced parties have little or nothing more to do with each other after the divorce. A less generous interpretation is that it permits the spouse with economic assets (usually the husband) to keep most of his assets, avoid payment of alimony and provide little or no child support, but the price he pays is the abandonment of any relationship with his children, while the other spouse is punished economically, but keeps her children. A "clean break" in the form that it is manifested in Japan can be extremely injurious.
The Japanese system relies on mediation and conciliation and on the pressures of social norms. It works reasonably well when the parties are reasonable and it works badly when one or both of the parties are unreasonable. It works far better when the parties are both Japanese and understand the workings of their society but it was not developed to handle issues that involve foreigners and it is entirely unable to cope with such issues. For foreigners who require the assistance of the Japanese legal system in family law situations, there is basically no law. The Japanese legal system does not provide any significant protection to the rights of the foreign parents.
The failure of the Japanese system is well illustrated by what happens when a Japanese national living out of Japan with a non-Japanese spouse abducts their child to Japan. In these circumstances, Japan is a haven for the abductor. This results from five distinct but related factors.
First, Japan is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. It has purposefully chosen not to adopt the treaty, even though it has adopted several of the other Hague Conventions.
Second, although Japanese law on its face requires the courts not to discriminate against foreigners, the practice is for the courts to favor Japanese nationals, particularly in family law cases. This results, in part, from the belief on the part of Japanese society that it is better to raise a Japanese child in Japan with a Japanese parent than in a foreign place. It would be shocking in the Japanese system if a foreign family were to be preferred over a Japanese family.
Third, it is customary in Japan that, when parents separate, the mother has custody of the children and the father has no access to the children. An exception might be if the fathers family were rich or powerful and chose to assume the responsibility of raising the child. Another exception would be if the mother were a foreigner and the father were Japanese and living in Japan).
In essence, upon a divorce in Japan, a child is given not simply to one parent but to the family of that parent and it is quite alien to this tradition for the family of the other parent (including the other parent himself) to have any further contact with the child. Accordingly, when foreign fathers complain that they do not have access to their children, it falls on deaf ears.
Typical is the statement of a Tokyo divorce lawyer that: "It's the Japanese general understanding that if they divorce, the noncustodial parent won't be able to see the kid again. It's as if the child loses a parent in an accident, as if that parent just dies." (Los Angeles Times, Oct. 2, 2001).
Indeed, Japanese family law has no provision for visitation rights. No legal regulations exist for determining the rights of the parent without custody to meet their children. Nor does Japanese family law provide any framework or definition of joint custody once parents are divorced. In 2001, a major Japanese newspaper reported that some divorced fathers were seeking to change the law to allow for visitation and even joint custody, but that has not occurred. (Mainichi Shimbun, August 1, 2001).
It should also be noted that there is little enforcement of child support orders in Japan. The typical 'deal' in Japan is that, upon divorce, the father pays nothing for the child's support and that he never sees his child.
Fourth, decisions of the family courts in Japan are not enforced in Japan. The parties are expected to follow such decisions voluntarily but, surprising as it may be to Western ears, there is no effective enforcement mechanism to compel compliance in Japan with Family Court orders.
Fifth, the police in Japan will not take any action in favor of a foreign parent who enters Japan to seek access to a child who is present in Japan with a Japanese parent. The only possible exception would be if violence were used or threatened, but even this would serve only to jeopardize the foreigner because, if he entered Japan in order to insist on access to his child, and if he took steps in Japan to try to see his child, he could be charged with creating a disturbance.
Japan is an abduction-friendly country and a magnet for international child abduction. This scandalous situation needs to be urgently addressed by the international community.