Last month, a woman in her 60s along with her daughter and two grandchildren filed a lawsuit with the Kobe District Court, asking for government compensation for causing the daughter and her children to go without family registers for a long period of time due to a provision in the Civil Code. Many women are calling for scrapping this provision, which grants only to husbands the right to request a family court procedure to negate paternal relationships with children. The Diet should act quickly to revise the law and abolish the provision, which is behind the problem of many people being unable to obtain family registers and as a consequence experiencing various social disadvantages.
The plaintiffs in the Kobe case maintain that the provision runs counter to equality under the law as guaranteed by the Constitution and are demanding government compensation of ¥550,000 each. The daughter and her children were finally able to obtain family registers several years ago — but only after the mother’s former husband died, which enabled her current husband to legally recognize the daughter as his child without the former husband’s involvement in the legal process.
About 30 years ago, the woman in her 60s started living separately from the former husband because he was physically abusive, and she conceived her daughter with her current husband before she formally divorced her former husband. She opted not to submit a birth report to the municipal office, a prerequisite for creating a family register for the child, to avoid the daughter being registered as the child of her former husband under another provision in the Civil Code. This provision stipulates that a child born to a woman within 300 days after divorce should be regarded as the child of the woman’s former husband.
The woman had no other choice — without getting in touch with the abusive former husband — because only the former husband, not she, had the right to request a family court to start an arbitration process to declare that the father-child relationship does not exist between him and the daughter.
Because the daughter didn’t have a family register, the two children that she gave birth to years later also didn’t get family registers. In the lawsuit, the woman argues that if she and her daughter would have had the right to request the start of the legal procedure at a family court, it would have been possible for the daughter and her children to obtain family registers.
The Diet has been slow in making necessary changes to the Civil Code to remove provisions disadvantageous to women in matters related to remarriage. The Civil Code had a provision that prevented a divorced woman from getting remarried for six months after divorce. Only after the Supreme Court ruled in December that this was unconstitutional did the Diet in June revise the law to allow a woman to get remarried if 100 days have passed since getting a divorce.
The original six-month divorce ban was introduced because a 100-day overlap occurs — between the provision that a child born to a woman within 300 days after divorce should be regarded as the child of her former husband and another that a child born 200 or more days after marriage should be presumed to be the child of the current husband — if a woman remarries immediately after divorce. In the ruling, the Supreme Court determined that a divorce ban for 100 days is sufficient to prevent this overlap.
Inaction on the part of lawmakers is clear. The Legislative Council, an advisory body for the justice minister, had recommended 20 years ago that the divorce ban should be shortened to 100 days. The Diet also took up the issue behind the latest court case in Kobe — the provision giving only the husband the right to seek the procedure to negate the paternal relationship — along with the provision on regarding a child born to a woman within 300 days after divorce as a child of her former husband — but it failed to take action to amend the law.
These Civil Code provisions in question were originally introduced during the Meiji Era (1868-1912) to prevent confusion over the question of who is the father of a child born to a woman after divorce and in matters related to inheritance. But the social situations surrounding marriage and family are changing, with the number of divorces and remarriages rising. Thanks to advances in medical technology, it has become relatively easy to determine a child’s biological parents. Some of the legal provisions are now outmoded.
The Justice Ministry in 2007 issued a notice that if a doctor can certify that a woman has become pregnant after divorce, a child born to her even within 300 days after divorce should be regarded as the child of her current husband. But this notice does not cover a pregnancy that begins before a formal divorce has taken place. The education ministry in June issued a notice that a child who could not attend elementary school due to the lack of a family register can attend junior high if the child reaches the age of a first-year junior high student and wishes to attend school. But these are makeshift measures.
The Justice Ministry has confirmed the existence of 702 people nationwide who do not have family registers — many of which because their mothers decided not to report their births to avoid them being registered as the children of their former husbands.
In the worst case, such children cannot receive medical checks when they are infants and are excluded from formal education. They will not have voting rights and cannot open bank accounts, and will likely face difficulty in getting jobs. The Diet should lose no time in amending the legal provision that lies behind the problem.
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