1 + 1 = 1 Understanding Japanese Family Law

1. 1 + 1 = 1Understanding Japanese Family Law Colin P.A. Jones Doshisha University Law School Colin.jones@lexdoxjapan.com

2. Speaker Introduction : Colin P.A. Jonescolin.jones@lexdoxjapan.com • UC Berkeley (A.B.), Tohoku Unviersity (LL.M.) Duke Law School (J.D. /LL.M.) • Professor, Doshisha Law School (Kyoto) • Lawyer: • Guam and New York • Palau (inactive) • Not admitted to practice in Japan • Life Member, Clare Hall, The University of Cambridge • Professional Translator (Japanese > English legal documents only); founder, LexDox Japan (www.lexdoxjapan.com) • Mediator/arbitrator candidate registered with Osaka Bar Association dispute resolution center

3. Basic features of Japanese family law (1/2) • There is no real constitutional dimension to family law (i.e., no constitutionally-protected liberty interest in getting married, divorced, raising children, etc.) • It is derived from two bodies of statutory law • the Civil Code (Part IV), which defines legally-significant family relationships • the Family Register Act, which establishes the family register system in which these relationships are recorded • Closest American analogy: a real estate title registry? • Court practice and rules have also added a significant amount of substantive “law” (e.g., child support guidelines, rules for defactomarriages)

4. Basic features of Japanese family law (2/2) • It is rooted in a system of extended families living in a single household (ie), the head of whom once had superior legal status. • It is based in a registry system (the koseki) that exists to facilitate the implementation of government policy and identify “the family” for purposes of legal interactions between its members and the rest of society (including the government) • The ie system was formally abolished during the US occupation, but still casts a shadow across 21st century family law.

5. The ie (house) system in the Pre-occupation Civil Code • “The head of and the members of the house bear the name of the house. “(Art. 746) • “The head of the house is bound to support its members. “(Art. 747) • “….Property as to which it is uncertain whether it belongs to the head of the house or to a member is presumed to belong to the former. “(Art. 748) • “A member of a house may not choose his residence against the will of the head of the house….” (Art. 749) • “If a member of a house desires to marry or enter into a relation of adoption, he must obtain the consent of the head of his house…” (Art. 750). • Head of household status was heritable • Usually by the eldest legitimate male • Loss of Japanese nationality rendered one ineligible!

6. Pre-occupation Family law • “Houses” (not individuals) were the smallest social unit subject to governance • Individual houses and their heads were granted broad autonomy, with few formal protections for legally inferior members (particularly women). • Members entered the house through marriage and/or adoption, left through divorce or dissolution of adoptive relationships. • Houses (and who was head) were identified in the family register system. • The family register system enabled the government to implement policy (taxation, conscription, etc.) through heads of households. • Family register details (it was a public document until 1976!) also facilitated commercial dealings between the household and the rest of society.

7. The Constitution of Japan (1947) Article 14. (1) All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin. Article 24. (1) Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.(2) With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.

8. New Constitution, new family law? • Being incompatible with the new constitution, the ie system (and “head of house”) were removed from the Civil Code when it was substantially amended in 1947. • BUT efforts were made to preserve elements of the ie system in the Family Register Act, so that it could be reestablished after the American occupation (this did not happen). • The current family register is a compromise • The Japanese wanted a “family”-based register system • The Americans wanted individual registration, but settled on a family-based one on the condition that no more than two generations could be registered together.

9. Features of the current system 1/5 • The family register is based primarily on marriage, secondarily on children – not individuals • Japanese couples who marry must establish a new family register: 1+1 = 1! • If they have a child, the child will also be reflected in the same register: 1+1+1 = 1! • If a Japanese woman has a child out of wedlock, she must establish a new family register reflecting the child 1+1=1! • Surnames are also central to the system: those in a single register must share the same surname. Under the Civil Code a married couple must have the same surname (Art. 750) and children born out of wedlock must have the mother’s surname (Art. 790(2)).

10. Features of the current system 2/5 • The system is inherently discriminatory in two basic respects • By nationality: only Japanese citizens are registered. • If a Japanese national marries a foreign national, the Japanese national must establish a new family register (1+1=1 again!) • the foreign national is not registered (appears as a marginal notation) • no need to have the same surname. • Children are reflected in the Japanese parent’s register • By legitimacy/parent’s marital status: • The Civil Code treats contains various rules that treat children differently depending upon legitimacy/parents’ marital status • E.g., Surname (Art. 790(2), locus of parental authority (Arts. 818 & 819) and (until 2013) inheritance rights (Art. 900(iv)).

11. Features of the current system 3/5 • The system created by the family register and the Civil Code is designed to facilitate the government’s (and other parties’) dealings with a particular family by minimizing ambiguity about the legal status of family relationships. • E.g., locus of “parental authority” should always be apparent from the family register (joint exercise only allowed during marriage). • Marriage, divorce only take effect when registered • An official extract of a family register is a basic form of identification (e.g. for a passport application) • Provides a current snapshot of family status that is more complete than Western “event-based” systems of identification (i.e., marriage certificate, divorce decree) • Does not reflect internal family realities (residential arrangements, who is the primary caregiver, etc.) • The family register is tied primarily to nationality, not residence: • Japanese nationals may get married, divorced or even adopt through family register filings mailed from abroad or filed with their local consulate!

12. Features of the current system 4/5 • The register system is based primarily on consensual “transactions”; marriage, adoption (as adults), divorce and dissolutions of adoptive relationships • Most “transactions” are completed by filing a form with local authorities who have no discretionary authority • It is relatively easy to make a fraudulent filing • 90% of divorces (including allocations of parental authority) accomplished this way • Judicial resolutions are the exception for when parties can’t agree on a consensual result • Even when courts do get involved, procedure first involves judicially-supported efforts to arrive at consensus • Judicial resolutions are reflected in the family register • Nobody ever needs to show a divorce/custody decree in Japan, because aspects of family status that are relevant to dealings with third parties are reflected in the register.

13. Features of the current system 5/5 • Although not framed in such terms, the Japanese system of family law essentially results in disputes of two basic categories: • Those about matters that potentially affect the rest of society and are reflected in the family register (e.g., marital status, parental authority) • Those that are really only between parties within the family relationship (e.g., physical custody, access, child support, etc.) and are not reflected in the family register • The latter category is often more important to the parties, while the former often seems more important to courts and other government actors (the former generally take more time to resolve through the courts)

14. Real-life (pre-Hague) scenario American man (A), Japanese woman (J) are married, have a child (C) and live in the United States. J plans to take C to Japan for the summer to see grandparents. J asks A to sign a form. He cannot read Japanese. H tells him it is a summer school application. He signs it. She and C go to Japan and never come back. C goes to Japan to find J and C. By the time he does he discovers that:

15. Real life scenario • The paper he signed was a divorce registration that gave her parental authority over C; and • J has subsequently remarried a Japanese man (X) • X has adopted C as his own child • This is a common practice when a woman remarries (otherwise the child would have a different surname and 1+1+1 would = 2, rather than 1!) • Can be done merely through a family register filing, without the consent of the natural father or court involvement if the adoption is by a spouse or lineal ascendant of the parent acting as legal guardian! (Civil Code arts. 797-798) “A” consults a Japanese lawyer (L). L tells him to fix the situation would require three different lawsuits, one to void the divorce, one to void the remarriage, and another to void the adoption. L advises him the process would take a long time, and suggests that he is a young man and should maybe just starting over instead.

16. Practice takeaways • For family cases involving Japanese parties living anywhere in the world, confirmation of family status (and nationality) should be sought through an official extract of family register • Note: Japanese law does not allow for dual nationality beyond the age of 22. • Remember, Japanese people can conduct certain types of family law transactions (divorce, etc.) anywhere in the world • A detailed US court judgment may not be as useful as you might think • Distinction between those aspects that can be reflected in the family register (divorce, parental authority) and those that can’t (visitation, child support, etc.) • Ability to get mirror orders uncertain – consider mirror “mediation” instead?