|

Hague jars with Japan’s family law, a zero-sum game with only one outcome

by Colin P.A. Jones

Special To The Japan Times

On April 1, the Hague Convention on the Civil Aspects of International Child Abduction went into force in Japan, as did the necessary implementing legislation. Having already written about this legislation in a prior column, I won’t revisit the subject here.

While Japan’s accession is a welcome step forward, I wonder how it will actually pan out. Implementation may be frustrated by some basic features of Japanese family law that can be neatly described mathematically: 1+1=1.

I would love to take credit for this wonderfully expressive formula, but it comes from a Japanese lawyer I met a few months ago, who used it to explain his own doubts about the convention’s viability here: “To Westerners, marriage means 1+1=2. But in Japan it equals 1.” It made perfect sense to me, but perhaps I should explain.

The traditional Japanese family structure was the ie, or house. This was an extended family that might encompass four generations of kin and several married couples sharing the same surname and even residence. The head of the house — typically the eldest male — had great authority over other members. Junior members needed his consent to marry or establish their own households. If the house was an economic entity — a farm, shop or other family enterprise — the head would also manage the business.

Primogeniture was the rule, with the eldest (legitimate) son inheriting the house, its property and the status of head. Marriage, childbirth and adoption were the means by which the house was perpetuated. While these were events that involved individual members of the house, they were ancillary to the greater collective: One plus one plus any number of additional ones still equaled one — a single ie.

The ie system was embodied in the Civil Code adopted at the end of the 19th century. It was feudalistic and discriminatory: Children born out of wedlock and women were disfavored, as were younger brothers. The head of house was a legal, heritable status that entailed both power and responsibilities, including a duty to support members of the household as well as control of family property.

The ie system was also a convenient tool for identifying, controlling and governing the Japanese people, which brings us to the koseki (family register) system. By requiring each ie to be registered, the government could implement policy through its head. The house rather than the individual was the smallest social unit directly subject to governance, with the head of the house being formally responsible for paying taxes, facilitating conscription and implementing other government programs.

The koseki system gave a weak central government leverage to govern nationally. The trade-off was noninterference within the family, with the head of the house accorded broad autonomy to govern it as he saw fit. This might include both corporal punishment and the use of junior members as a form of economic asset.

The register was also significant for commerce: It would show who was authorized to dispose of family assets, as well as an individual’s status within a particular house. This information could have financial significance. For example, an eldest son would be a lower credit risk since he could be expected to inherit the family property. The family register became a public document, a state of affairs that continued into the 1970s.

Elements of the ie system were fundamentally inconsistent with the postwar Constitution, which contains both a general egalitarian mandate and a clause specifically requiring gender equality and respect for the individual in family law. Amendments to the Civil Code and the koseki system were unavoidable.

The Americans governing occupied Japan had officially indicated that the Japanese were free to make such amendments to these laws as they thought appropriate so long as basic constitutional requirements were satisfied, which meant gender equality, marriage based on free will and the elimination of head-of-house status. This was not a clear mandate to completely excise the ie system from the Civil Code. Nevertheless, the Japanese drafting team apparently decided that such an approach would likely be viewed most favorably by the Americans.

However, what the Japanese did try to do was surreptitiously preserve elements of the ie system in case there was a desire to revive it after the Occupation (the subject was debated in the 1950s but nothing came of it). Their attempts focused on the Family Register Act rather than the Civil Code. The former being a mostly administrative statute that implemented the latter, the Japanese calculated that the Americans would stop paying attention once they were happy with the amendments to the Civil Code. They were wrong: Having been pleased to see the ie system formally excised from the Civil Code, the American authorities both noticed and objected to efforts to preserve it in the family register system.

In light of the individualistic principles of the new Constitution, the Americans actually advocated introducing a system that registered individuals rather than families. Using classic bureaucratic arguments (including insufficient paper!), the Japanese side held out for a family-based system. The Americans conceded but adamantly opposed any system that would enable three or more generations to appear in the same register, as this would have smacked of the ie system.

The result is the current koseki system, a compromise based not on individuals but on nuclear families: married couples and their children sharing the same surname. If a Japanese man and woman marry, they must establish a new register: 1+1=1. If they have a child it appears in that register: 1+1+1=1. If an unmarried Japanese woman has a child, she must establish a new register: 1+1=1. The same applies if she marries a foreigner and has a child (in family register math, non-Japanese equal zero). Japanese persons appearing in the same register are supposed to share the same surname; it’s part of the equation. If a woman gets divorced, she can revert to her parents’ register, but only if no children are involved.

The resulting system retains anachronisms that continue into the 21st century. Being rooted in marriage and surnames, it discriminates between children depending on whether they were born in or out of wedlock. Furthermore, since one purpose of the system is to identify family relationships so that government agencies and others can confirm who is responsible for whom, it is designed to minimize ambiguity. Parental authority over children is tightly linked to this system, with the Civil Code vesting it in mothers of children born out of wedlock, jointly in both parents during marriage, and in only one parent after divorce. Under this system the locus of parental authority should always be clear from the family registry.

The system is also laissez-faire. Most changes made to the family register are consensual and can be carried out with limited government interference — adoptions, dissolutions of adoptions, even many divorces. So long as a form indicating compliance is submitted, the authorities will accept it and the koseki will be amended to reflect the new status. About 90 percent of divorces, including many involving children, are made in this way, with no governmental oversight of custody arrangements. Even when parties can’t agree, the primary role of courts in the minority of cases in which they become involved is to convince parties to reach some consensual solution rather than to find facts or apply law. Since most resolutions are agreed to by the parties themselves (with or without court intervention), enforcement is something of an afterthought.

A Japanese lawyer recently related to me a consultation he had had with a young foreign man who had been living in his home country with his Japanese wife and their child. The wife took the child back to Japan for the summer and asked him to sign what she said was a school application. He could not read Japanese but signed. His wife and child never returned. When he tracked them down here, he discovered that he had signed a consensual divorce form awarding his (ex-)wife parental authority. Not only that, but his wife had since remarried and her new husband had adopted the child as his own (a common practice in Japan; otherwise the horrible anomaly of 1+1+1=2 — a man not sharing the same surname as or having parental authority over a child in his home — might arise).

This was essentially the same scenario that the other lawyer had enlightened me with using his formula, but it seems to be one that nobody implementing the Hague Convention here seems to have considered. Fundamentally, the Convention treats the parents and child as individuals, while Japanese family law still treats the family as a single unit and doesn’t handle fractions very well.

There are thus some very large gaps to bridge between the convention on the one hand and the Civil Code-family register combination on the other. The former does not distinguish based on the marital status of parents, their nationality or that of the child and is concerned primarily with the best interests of children. The latter is fundamentally rooted in marriage, the marital status of parents and Japanese nationality, all as they are reflected in the family register system. Furthermore, formal family law is largely unconcerned with the best interests of children because that would involve treating them as whole numbers and make consensual resolutions harder to achieve.

Finally, the convention is concerned with place: the child’s habitual residence. The family register system is not: Japanese nationals can register divorces, marriages or even adoptions (of other Japanese people) in their family register from abroad. Whether these transactions are valid in their country of residence is questionable, but the possibility of conflict seems obvious.

With the convention routinely and incorrectly described in Japan as being about “international divorces,” the process of bridging these gaps probably has a way to go. Certainly nobody here seems to have anticipated the possibility that cases seeking return under the Convention might involve families comprised entirely of Japanese nationals.

Of course, case resolutions will be where the rubber meets the road. The government hopes that most cases can be resolved amicably through mediation, whether through the courts or other organizations. (Full disclosure: I am registered as a mediator/arbitrator candidate with the Osaka Bar Association’s dispute resolution center.) Paradoxically, however, it is mediation and a focus on consensual results that contributed to Japan being an abduction haven in the first place — by allowing courts to remain involved while doing nothing affirmative for long enough that the child was settled in his or her new environment.

If mediation and the judicial process just end up being part of an exercise in “convincing foreign father to let the kids stay in Japan” (as one lawyer explained the need for mediation in such cases to me), then the whole process of Japan joining the dozens of other countries already party to the Hague Convention might add nothing to Japan’s family law equation.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Law of the Land appears on the third Thursday of the month. Comments and ideas: community@japantimes.co.jp

  • Mark Makino

    These articles are always the best part of the JT.

    One small quibble: I wonder if it is proper to refer to the “ie” as “traditional” since it was an elite institution imposed on the population as part of the modernization process.

  • Osman

    From my 5 years experience in Japanese university, I guess this ie system is not only related to the family system, but also to many other work aspects. I was a graduate student but no body considering me for any thing without consulting my supervisor ! That’s also true for any body under his power. For foreigners, it’s worse, because even personal information are discussed with the lab head for example.

  • Maranyika

    As worse as it may sound! the ie system have sustained the cohesiveness of the Japanese people. Statistically speaking, the Nation has the lowest crime rate in the developed world as individuals in the ie system govern themselves.

    • Ron NJ

      … only if you take the numbers provided by the NPA at face value and ignore the fact that the police actively discourage victims from reporting crimes (sexual crimes are a big one here) and often refuse to follow up on ‘uninteresting’ crimes such as those against non-Japanese, the tendency for police to classify what are obviously murders as ‘illegal disposal of a body’ if the investigation or if ensuring a conviction looks difficult, among the other myriad problems with the numbers the NPA reports.

      • lasolitaria

        Yeah. As soon as we take into account all that, I bet Japan will show as high a crime rate as the US or the UK, right?

  • leconfidant

    The American and UK systems at present are marked by a law system which forces the divourcees into a bitter war, for all or nothing, so that even if you want an amicable solutions, the whole system conspires to play you off against each other. In theory, it should be equal. In practise, it’s Kramer Vs Kramer without the happy ending.

    There has also been an epidemic of women who suddenly “discovered” he was abusing the kids when she realised
    a) she didn’t have to prove anything
    b) even if he can prove it’s a lie, she won’t be held accountable,
    c) It would allow her any solution she wants.
    Routinely the solution is he ends up paying half his salary till they’re 18,
    he gets minimal child access, and a letter from her lawyer if he’s a minute late getting them back.

    Likewise, accusations of domestic violence suddenly turn up right when they have most strategic effect in the middle of a divource. In some states in America, the first a man knows about an accusation of domestic violence is the police officers arriving to escort him to prison. He needn’t have actually done anything for this to happen and no due process protects him. She can just go to a judge and tell him she “feels frightened” and it goes ahead without warning.

    Men used to abuse the law when it favored them,
    so I see this as an indictment of the law, not of women per se,
    but the temptation for women to abuse the law,
    in the course of the all-or-nothing conflict the system creates
    means there are a lot more men being accused of a lot more abuse
    than any professionals are prepared to believe is actually happening.

    The result is that while women levels of suicide remain stable before, during and after divource,
    men’s suicide rates jump up to 11 times the norm.

  • Andrew Waddington

    The Japanese are living in their own world ,that is theirs, but if they want to have the benefits of living in an international community then they need to come to an agreement ,they can not have both.

    I lost 5 cases of child visitation in the Sendai Court based on not having a job ,still even now I have a part time job. nothing has changed ,I am still being followed by the secret police and my ex/wife ,( I say /wife because we are still married under international law ,I was married in London and not divorced ,though the Japanese do not recognise marriages abroad )

    Unfortunately I was also tricked into a divorce ,because of the situation and the lack of Japanese knowledge of Kanji and law ,I was working as a (so called ) English Instructor I had no experience and qualifications and had very little time to self study as I was very busy working everyday pretending to teach English ! ,It wads al false and even I wanted to have a job working with Japanese I was discouraged by my Father in law who was my Oshounin sponsor. And even was discouraged by my then wife from getting involved in Japanese society at all , She world control and organise everything and suddenly became uninterested in me as a person,basically our marriage was a fraud (business slavery marriage ),I was the stupid Gaijin making loads of money in the 90 s ready for it to be embezzled by people around including my wife whose purpose was to trick a Gaijin into marriage bring back to Japan get him to work as a Teacher Instructor and then have children and then engineer a false investment fraud and an housing fraud that left us all so called bankrupt and then the in-laws became homeless and I was not included in the Miyagi Prefecture welfare re-housing and welfare even though I was Eiju =permanent resident , (good job I did not make it to kokuseki nationality ) she pleaded with me to divorce so she could get welfare ,we were in Aoba ward Sendai ,but her Koseki was Yamagata and the kids were born in Sendai so the Aoba ward Welfare would not help
    The housing fraud basically She wanted to rebuild her in-law’s house but because I was not working for a Japanese company I and my father in law was sponsoring me we could not get a housing loan or a bank to support us so we were at the mercy of the Yaqooza Mafia it seemed but there were deeper connections she was a secret member of a sect and this sect operates in London, she was working for Yamaichi investment bank and recruiting Gaijins in London to join the ten circles of life, this sect is where the unsuspecting victim gives his wealth away ,sells his soul and this is the marriage I entered by, all the time she was working for the Japanese Government their grand plan is to get access to the west by this by blood from half children and by attracting foreigners to come to Japan so they can do business, it is all a front. because of Japanese Renqai system business which restrict foreigners from entering

    They the Japanese know that their system is contrary to the west and competing with China they have a bankrupt stagnant economy and they have to be part of the west for the oil.

    They also have a problem with demographics and ageing population and dependent on their master the US they realised it when they shut the door on the west that it was a mistake they wanted to be independent but they need the west nobody needs Japan if they can not enter into their society.

    At the same time they envy North Korea,they have bad blood with Korea and dozens of Japanese have been abducted but how many Koreans were abducted by Japanese Kajima to work as slaves and then exterminated ,the darkness of Japan as no bottom ,May their Gods curse them they and the US and China and Russia and EU are all cursed with WW3.

    Japanese people are very kind but they have no soul they are a cursed people I feel sorry for them ,their government has kept them oppressed for so long like my Government the UK have sold our soul to the devil.

    World war 3 is upon us and the day of judgement shall come and I will be happy that God judgement will be the best for me and my life and my soulless children basically my kids are prisoners ,slaves I am doing my best to see them but 8 years they have been kept from me by the Japanese Government.

    The laws will never be changed to free the family and the Japanese do not want us but they need our obedience like the Japanese they favour animals dogs and pigs cats and so on more than kids.

    How many kids commit suicide in Japan? how many false loveless marriages that are doomed to fail.

    I loved my wife before I got married she never loved me ,but what she could get from me I had nothing but my labour she exploited that and my love for her, she turned the kids against me she would rather me work than play with the children she was a only child her father a drunk
    also bullied by his family ,he died a broken man. My father he was against us getting married that was a reason she suddenly did not want the kids to leave Japan my wife was not interested in me in mixing in Japan or the kids getting any English Education she could not get married to Japanese because of the secret sect or family Monsho or Booraqooman this is deep stuffs.

    • disqus_Gvs3G32z1K

      ….Why was this comment approved?