Author: Allison Alexy, University of Michigan
Laws in any context can be applied differently, but in Japanese family law there are two striking examples of explicit gender differences that are written into law. Both constrain women’s choices to construct paternity as a legal reality and force negative impacts on women and their children. After years of pressure from activists and incremental steps concerning other aspects of family law, the Japanese Ministry of Justice has announced plans to reconsider and possibly revise these laws.
The first example of a substantial, gendered difference is a mandatory waiting period for women who want to remarry after divorce. Unlike men, who can legally remarry immediately, women in Japan must wait 100 days after getting divorced to be permitted to register a new marriage. This delay is explicitly unfair but represents an improvement to the law — before 2015, the waiting period for women was six months.
The law’s logic flows from an attempt to determine the paternity of a child. If a woman is pregnant when she divorces and is allowed to remarry immediately, that child’s paternity would be incorrectly granted to the new husband. On paper, the 100-day waiting period is the crudest way to make sure a divorcing woman isn’t pregnant. In the koseki family registry system, family membership is linked with Japanese citizenship, and people or families who fall outside the normative ideals face social stigma and discrimination.
The second example of the gendered difference in Japanese family law links directly with the first. Any child born to a married woman is legally presumed to be her husband’s child. Any child born to a divorced woman is legally presumed to be her ex-husband’s child if the birth occurs within 300 days of divorce. But many marriages end well before a divorce is officially registered, many people begin new intimate relationships before their divorce is finalised and people have sex with people they aren’t married to.
At the same time, the koseki system and sexist legal norms designed to confirm paternity leave many people in risky situations. A woman fleeing domestic violence — the rates of which have been growing during the pandemic — might not seek divorce from her abuser. The majority of divorces in Japan are mutual agreements which require both spouses to agree to the divorce. Asking an abusive partner for such an agreement, let alone negotiating the terms of the divorce, are opportunities for further violence.
For this reason, survivors of domestic violence might leave a marriage but never seek a legal divorce. If a woman later starts a new relationship and becomes pregnant, as soon as the child’s birth is registered her abusive husband is presumed to be the father. Although a genetic paternity test would correct this mistake, Japanese courts are unlikely to rely on them.
Some women in this situation choose not to register their child’s birth at all, effectively denying the child the normal rights of Japanese citizenship. Living as an ‘unregistered’ person, as an estimated 10,000 children are, makes it impossible to access basic state services such as education or a driver’s license. Because of the current structures of family law, survivors of domestic violence who become pregnant are forced to choose between a dangerous reconnection with their abuser or denying their child basic rights.
No parent should have to make these choices. And no child should be punished for the choices their parents made or were forced into. The proposed revisions to paternity determinations outlined in the Japanese Civil Code will bring vital benefits to adults and children.
These expected changes exist in context with ongoing inequalities that remain written into law. To address those, the government must reconsider the laws that require spouses to have the same last name, restrict child custody to only one person after divorce, prohibit queer couples from marriage, and force transgender people to undergo sterilisation to change their legal gender. These laws — like those restricting women’s remarriage — do tremendous damage to Japanese people and families. Particularly in an era of the precipitously falling birthrate, Japanese laws must become more supportive of people and the families they are in.