Japan: Legitimacy of Children

Just 10% of kids of remarriage to be recognized

Soichiro Kuboniwa / Yomiuri Shimbun

The Justice Ministry is expected to instruct authorities to recognize children born within 300 days of their mothers' divorce as the legitimate children of the mothers' new husbands, as long as the parents have conception certificates when recording the children's name in family registers to prove the mother became pregnant after divorce.

However, since the measure, expected to be applied after the Golden Week holiday period is over, will not be applicable to women who become pregnant before their divorce, the ruling coalition parties plan to continue discussing the problem.

The problem drew attention this year after divorced women raised questions about the gap between rules on presumed legitimacy and reality, prompting debate on the issue at the Diet.

In one case, a woman conceived with a man she was to marry following her divorce from her estranged husband. But she was forced to go to court to prove the child did not belong to her former husband after she gave birth within 300 days of her divorce in an emergency caesarean section to prevent a miscarriage.

Also, since many mothers do not register the births of their children because they do not want their children recognized as those of their ex-husbands, many children have gone unregistered.

In March, in response to a call by civic organizations, 12 such children in Tokyo and seven prefectures applied simultaneously for passports that required the submission of copies of their family registers.

Under the current system, even if it is clear the ex-husband is not the father, the mother still has to go to family court to overturn the presumed legitimacy of the child. Furthermore, even after courts recognize children as those of current husbands, the phrase "presumed to be the former husband's child" still remains on family registers.

The ministry's notice will recognize children born within 300 days of the mothers' divorce as those of their new spouses or as illegitimate children, provided the mothers can prove they became pregnant after divorce.

As such, the presumed legitimate father of the child can be changed without a trial

The reason the ministry limits the scope of legitimacy to conception after divorce is because Justice Minister Jinen Nagase said fidelity and sexual morals have be to taken into consideration.

However, even the ministry suspects that only 10 percent of such children were conceived after official separation. This means the new policy will not apply in most cases.

At a meeting of policy council chairmen of the Liberal Democratic Party and New Komeito on April 25, the two ruling parties decided to continue discussing the issue as New Komeito House of Representatives member Kaori Maruya said that while the notice is a step in the right direction, its scope is too narrow to be a solution.

However, when the two parties discussed concrete measures, they failed to agree on the issue of conception before divorce.

New Komeito claimed that children conceived before divorce should be recognized as those of new spouses if divorce procedures are delayed by domestic violence. The LDP insisted that since pregnancy before divorce is an exception, the family system would collapse if such pregnancies were condoned.

Initially, the ruling coalition's project team had intended to pass a bill including a special measure to recognize children conceived before divorce as those of the mothers' new husbands if the mothers remarry by the time the children are born and providing DNA tests can prove paternity. But the bill was shelved due to strong LDP opposition.

At the April 25 meeting, the policy council chairmen of the two parties exchanged an agreement document stating the parties would consider passing a law in line with the Civil Code that treats pregnancies before divorces in cases considered inevitable considering social norms.

The two parties will form a new project team to discuss measures to help those in cases in which there were precedents that children had been recognized as those of new husbands, such as a mother who was estranged from her ex-husband for a long time, as well as steps to alleviate trial procedures.

However, there are concerns about the difficulties in determining if such a separation has been long, as family registry official only make a formality of checking documents, As such, it is highly likely the measures to be discussed by the team will be applicable in only a small number of cases, such as being able to use departure and entry records on passports and imprisonment records to prove mothers were not with their former husbands.

New Komeito, claiming that establishing some legal measures are necessary, wants the bill to be passed during the current Diet session before the House of Councillors election this summer. The LDP, however, wants to postpone discussions until after the election, fearing the matter may divide the party