Under the Civil Code, a baby whose mother became pregnant while she was married is presumed to be that of the husband, and a child born within 300 days of the mother’s divorce is legally considered to be that of the ex-husband. A lawsuit to deny the legal paternity can only be filed by men.
If a women who escaped from an abusive husband but is still legally married has a child with another man, and does not wish to have the baby registered as that of her legal husband, she has no recourse but to contact the husband and ask him to take the active step to deny his paternity. If the woman wants to avoid any contact with the husband, she might choose not to register the baby’s birth with the authorities. A child born without entry in the family registry faces various disadvantages in life, such as being unable to obtain a residency certificate, health insurance card or passport. The Justice Ministry confirms that there are at least 715 people nationwide who lack family registry. But that number is widely believed to represent only the tip of an iceberg.
The Osaka High Court last week turned down a suit filed by a Kobe woman in her 60s, her daughter and grandchildren who argued that the Civil Code provision allowing only men to take steps to deny legal paternity is unconstitutional. But while the court upheld the lower court ruling dismissing the plaintiffs’ demand for damages from the government for the losses they incurred due to the provision, it said the issue of people without family registry should be “left to the legislative discretion of the Diet.”
The problem of people without family registry has been expanding as the number of divorces and cases of domestic violence increases. As the ways of families change over time, an overhaul of the Civil Code provisions that date back to the Meiji Era is long overdue. There are ways to determine paternal relationship through DNA tests. The Justice Ministry reportedly plans to launch a panel of experts to consider whether the right to file a lawsuit to deny the legal paternity should be expanded to women and their children. All of the parties involved should accelerate efforts for a legislative solution to the problem.
The Kobe woman in the lawsuit before the Osaka High Court separated from her husband in the 1980s due to physical abuse, and had a daughter with another man before the divorce was finalized. She did not register the birth of the daughter because she did not want her former husband listed as the baby’s legal father. Due to her lack of entry in the family registry, the daughter was unable to marry legally, and her two children were also not listed on the family registry because of the mother’s status. The lack of family registry of the daughter and her children was resolved only in 2016 — after the former husband died and the daughter’s biological father recognized her as his own.
The plaintiffs said the problem would not have taken place had the Civil Code been revised to allow women and their children to file a lawsuit denying legal paternity. While the high court said the provision allowing only men to do so “has a certain rationality” because the husband faces the direct legal rights and obligations in a paternal relationship with the child, it also said it would “not be irrational” to give women and their children the right to take steps to deny the legal paternity. Since the current system concerns the ways of a family, the court said, a solution to the problem should be left in the hands of the legislature by taking into account various factors such as tradition and popular sentiment.
The problem of people lacking family registry, who face various disadvantages in terms of identification and welfare services, must be eliminated, and legal hurdles that need to be fixed to resolve the problem should be quickly addressed.
However, reform of the legal provisions relating to the family system remains slow. A Civil Code provision banning a woman from remarrying for six months after divorce — also related to the rule presuming the baby born from pregnancy during marriage is the child of the legal husband — was revised in 2016 to shorten the ban period to 100 days, but the legislative step came 20 years after the Legislative Council, an advisory body to the justice minister, made such a proposal.
Experts say many of these Civil Code provisions created in the Meiji Era do not reflect the realities of families in today’s society. It’s time to discuss a fundamental overhaul of the system.