In Family Law, Japan Becoming the Land Time Forgot

Society Lifestyle Politics Family

Patriarchal assumptions from a bygone era linger in Japan’s Civil Code, making it an international outlier in such areas of family law as post-divorce child custody and same-sex marriage. Family law expert Ninomiya Shūhei critiques Japan’s slow progress and recent setbacks, including vigorous lobbying by the ruling party’s social conservatives to block reform.

The shadow of Meiji-era patriarchal systems continues to hang over Japanese society, as a conservative group within Japan’s ruling Liberal Democratic Party moves to block such common-sense reforms as joint child custody, the use of separate names after marriage, and same-sex marriage, making Japan an international outlier in family law.

Eleventh-Hour Policy Interventions

The interim report of the Family Law Subcommittee of the Ministry of Justice Legislative Council, scheduled to be released at the end of last August, was expected to recommend the adoption of a joint custody system under which divorced parents would share child-rearing rights and responsibilities in principle. But release of the report was delayed amid fierce objections from a group of LDP politicians who complained that it failed to reflect the range of opinion within the party. Although the government has promised to submit a bill revising the pertinent sections of the Civil Code after a period of public comment, it remains unclear whether the reform will proceed smoothly.

Meanwhile, Japan remains the only country in the world where married couples are required by law to adopt the same surname. The government first drafted a bill to permit the use of separate surnames in 1996. Since then, reform has not merely stalled but is actually in retreat.

Under intense pressure from a deeply divided LDP, the government revised its Fifth Basic Plan for Gender Equality, released in December 2020. The revised version omitted a pledge to advance deliberations aimed at the introduction of an “optional dual surname system’’ and added a passage on the need to proceed “with an awareness of the history of the surname-sharing system, which is part and parcel of the family registry system, and to fully consider the impact on the children and their best interests.”

Moreover, significant alterations were made to a government-administered public opinion poll on family law, presumably under pressure from conservative politicians seeking to influence the results. In the 2021 version of the survey (released by the Cabinet Office in March 2022) a new question was inserted immediately before the multiple-choice question asking respondents’ their views on the use of separate surnames. The new question asked respondents to indicate which of several negative impacts the use of separate surnames could have on a child. Among the choices was “hindering the healthy maturation of the child through a loss of family identity and unity.” Such manipulation had its desired effect. The ratio of respondents favoring the optional use of separate surnames dropped to a record low of 28.9% in 2021 after hitting a record high of 42.5% in the previous survey, conducted in 2017.

In this way, a conservative minority has arbitrarily interfered with official proposals, plans, and opinion polls that conflict with its own position. This is one major reason Japanese family law and Japanese society itself are becoming increasingly isolated anachronisms in today’s world.

The Outmoded Concept of “Illegitimacy”

To be sure, not all movement has been retrograde. Let us look at a Civil Code reform that has brought Japan’s family law closer to UN and Western human-rights standards: the amendment of a provision denying equal inheritance rights to “illegitimate children,” or children born out of wedlock.

The Meiji Civil Code stipulated that an illegitimate child’s share of inheritance would be half that of a legitimate child’s, and the provision was preserved when the code was revised in December 1947. The idea was to support and encourage the institution of marriage. For many years, the United Nations called on Japan to correct this inequity, arguing that it violated the Convention on the Rights of the Child and other human rights treaties.

In September 2013, the Grand Bench of the Supreme Court of Japan ruled that discrimination against children born out of wedlock with respect to the division of inheritance violated the constitutional guarantee of equality under the law, stating, “It is not permissible to impose disadvantages on a child by reason of the fact that his or her mother and father were not married, a circumstance the child can neither choose nor correct. Each child should be respected as an individual and his or her rights guaranteed.” In December 2013, the discriminatory provision was abolished, and equal inheritance rights were established at long last.

Nonetheless, the distinction between “legitimate” and “illegitimate” children persists in the standard Japanese birth registration form, where one is required to check either one category or the other. This symbolizes Japanese society’s continuing differentiation between children, rooted in respect for the legal institution of marriage.

In Japan, marriage, childbirth, and childrearing are still inextricably linked. The percentage of out-of-wedlock births was a mere 2.3% as of 2019, as compared with 40%–50% in the European Union as a whole. In France, the figure is 59.7%, although in most cases the parents have entered into a union known as pacte civil de solidarité, or PACS. Europe has been able to eliminate the distinction between legitimate and illegitimate birth and achieve equality among children under the law by severing the link between traditional marriage and child protection. This brings us to the issue of joint custody.

The Joint Custody Issue

In Japan, parents have joint custody of each of their children as long as they are married. But if they divorce, only one parent can have custody of a child. Japan is one of the few countries in the world today with such a sole-custody system.

The Convention on the Rights of the Child, adopted by the UN General Assembly in 1989, states that all children have the right to be cared for by their parents and that parents are jointly responsible for the upbringing and development of their children, regardless of the parents’ marital status. In accordance with the convention, the countries of Europe and the United States shifted in the 1990s to a system in which joint custody after divorce was the rule, and sole custody was granted only in exceptional cases, such as those involving child abuse. Joint custody is also an option in South Korea, China, and Taiwan.

The biggest problem with sole custody is that it tends to result in a breakdown of relations between the child and the noncustodial parent. In Japan, the mother is granted sole custody of all children in the overwhelming majority of cases. In a 2016 survey by the Ministry of Health, Labor, and Welfare, only 29.8% of single-mother households reported ongoing contact between the child and the father. Child support from the father continued in only 24.3% of cases.

One function of the law is to define behavioral norms. A provision calling for joint custody after divorce lays a legal foundation for continuing contact between children and parents living separately, division of child-care expenses, and so forth. It establishes the basis for ongoing parental consultation—taking into account the child’s wishes—on major decisions pertaining to the child’s schooling, healthcare, and other vital matters, so that such decision making can become the norm in our society.

Joint decision making in which both parents participate on an equal basis is a basic premise of joint custody. Some of the opposition to such a system reflects concern that it will make single mothers and their children vulnerable to an abusive ex-spouse. Certainly we must recognize that the merits of joint custody are negated in cases of domestic violence or child abuse, or when the process of separation or divorce breeds irreconcilable distrust or alienation. This is why the procedures for divorce by mutual consent—which accounts for about 90% of all divorces in Japan—should incorporate support and safety mechanisms. These should include mandatory co-parenting classes, referrals for counseling in cases of mental instability, and provision for arbitration by a family court in the case of irreconcilable differences, as well as a means of screening for domestic violence and establishing sole custody if necessary to ensure the child’s safety. We must build the social and legal framework to support the establishment of joint custody as a norm while shifting to a child-centered model of family and parent-child relations.

Even with such reforms, however, Japan’s family law will remain hopelessly behind the times until it permits couples to retain separate surnames after marriage and recognizes same-sex marriage.

The Right to One’s Own Name

In Japan, a marriage is official when it has been recorded in the family register, or koseki, of one of the parties (typically the man). Under article 750 of the Civil Code, one of the parties (typically the woman) must adopt the surname of the other. Unless this requirement is met, the municipal office where the koseki is kept will not accept the marriage registration application.

As of 2020, a full 95.3% of Japanese married couples were using their husband’s surname. The effect of requiring married couples to choose one surname is to pass down the name of the male line, thus preserving a patriarchal mindset. The same-surname provision curtails our citizens’ freedom to marry and undermines the principle of equal rights in marriage.

The Supreme Court has ruled that this provision of the Civil Code is constitutional. Yet it has also affirmed (in a separate context) that a person has a right to be known and referred to by his or her own name. In a ruling on February 16, 1988, the high court stated, “A person’s name . . . is the foundation for being respected as an individual and a symbol of his or her personality. The right to one’s own name is among an individual’s moral rights” (decision by the Third Petty Bench, case no. 1311 of 1988). Forcing someone to change their surname against their will violates their moral rights and their personal dignity.

Today it is possible for a Japanese woman to have her maiden name imprinted in parentheses after her “registered” (post-marriage) name on her My Number taxpayer identification card, passport, or driver’s license. But non-Japanese people find such IDs difficult to decipher. Moreover, the surname recorded on the family register is still the name used for taxation and social-insurance purposes, bank accounts, credit cards, airplane tickets, cellphone contracts, business registration, and adult guardianship registration.

In the public comments conducted when the Fifth Basic Plan for Gender Equality was being drafted, the following opinions were fairly representative of those received from women in their twenties.

“I want what I regard as my name, to be my real name, not just my parenthetical maiden name.”

“I’m currently thinking about marriage, but I’m torn because I can’t accept that I have to change my surname. I think there’s a problem with the current system in that if neither party wants to change their surname, one of them has to sacrifice.”

Japan is now the only country that legally requires married couples to take the same surname. The law is a holdover from a bygone era when the husband was the sole provider and the head of the household. It is poorly suited to a society striving for gender equality, in which two-earner families and joint responsibility for child rearing have become the norm.

Defending the Rights of Minorities

On March 17, 2021, the Sapporo District Court ruled that the current Civil Code and Family Register Law, which do not provide for same-sex marriage, violate the Constitution’s guarantee of equality under the law. In her ruling, the judge stated that sexual orientation, like gender and race, is something that cannot be chosen or altered at will, and that homosexuals are thus entitled to the same legal benefits as heterosexuals.

Japan is now the only Group of Seven country that does not allow people of the same gender to marry. Same-sex marriage has been recognized in 33 countries and territories around the world, from the Netherlands (as of April 2001) to Cuba (as of September 2022). In 2019, Taiwan became the first Asian country to legalize it. The institution of marriage is not about reproduction and child rearing; it is about providing legal protection for committed life partners. The recognition of same-sex marriage is an integral aspect of the process of liberating people from social coercion vis-à-vis reproduction and the gender-based division of labor.

To be sure, people who want to marry someone of the same gender constitute a minority of the Japanese population—as, indeed, do women who wish to keep their own surnames after marriage. This is why they are so keenly aware of the contradictions and inequities of Japan’s social systems. A society that is livable for minorities is a society that is livable for all by virtue of its affirmation of diversity, tolerance, and inclusion. It is time to amend Japanese family law with that ideal in mind.

(Banner: Couples petitioning to maintain separate legal surnames after marriage head to the Supreme Court in Tokyo on June 23, 2021. The top court dismissed their request, upholding a 2015 ruling affirming the constitutionality of a legal provision forcing married couples to use the same surname. © Jiji.)

marriage women Gender equality same-sex marriage same-sex partnerships Civil Code