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Japanese Family Law-- Or The Lack Thereof!

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.

Information on Japanese Family Law:
Spousal violence constitutes a serious violation of human rights, as well as being a crime  continue

The statutory law in Japan contains no provisions  continue

Family courts and their branch offices are established at the same places where district courts and   continue

Some cases in English on Japanese family law  continue

Selected excerpts from Japan's Family Registration Law  continue

This case illustrates a stark illustration of the complete failure of the Japanese legal system to protect children  continue

unofficial translation of Book IV; Relatives  continue

Kyogi Rikon (Consent Divorce)  continue

Has anything changed in the fight against international child abduction?  continue

Japan's private international law  continue

Service of process in Japan raises difficult issues.  continue

Divorce has constantly been on the mind of Imelda (not her real name), a 36-year-old Filipino woman who married a Japanese man seven years ago.  continue

An American Dad is behind bars and his Japanese ex-wife is a fugitive from justice  continue

In the debate about whether Japan should sign the Hague abduction convention, a serious consequence of Japan's failure to ratify the treaty is being overlooked. Japan's failure to sign the convention is extremely damaging to Japanese nationals living overseas, since  continue

It’s been six years, three weeks and one day since Navy Cmdr. Paul Toland last saw his only child, Erika  continue

We have represented many international clients who  continue

Japan is a haven for international child abduction. Now one child who was abducted to Japan is to be returned to Wisconsin, thanks to our team’s non-stop efforts   continue

This article from ABC News (2008) is based in part on an interview with Jeremy Morley.   continue

Four fathers quietly filed into a theater to watch  continue

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  continue

1996 judgment of the Supreme Court of Japan  continue

The Supreme Court of New Jersey has upheld a decision allowing a Japanese mother to relocate with her six-year old child   continue

In Japan since 2003 there have been two ways to calculate child support. The first way  continue

Japanese law enforcement and social service agencies unfortunately seem unable to enforce custody and support orders   continue

Under the Japanese Civil Code, either the husband or wife must change their family name to be married legally. Usually it is the wife who does so.  continue

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