Tuesday, Jan. 26, 2010
Judges fill the gaps in Japan's family law
By COLIN P. A. JONES
Last year was an important one for child custody issues in Japan, with growing international pressure on Japan to sign the Hague Convention on International Child Abduction, and the dramatic arrest of Christopher Savoie in September for supposedly "kidnapping" his own kids in Fukuoka.
I was actually interviewed for a segment on MSNBC's "Today Show" in connection with the Savoie case. Since the program quite rightly focused on an interview with Mr. Savoie, the footage used of me was quite brief: mostly a clip of me saying it was shocking how easily parental rights are terminated in Japan. But watching my (literally) 14 seconds of fame afterwards, I realized immediately that I had mis-spoken. What is shocking is not how easily parental rights are terminated, but how few parental rights there are to begin with.
While it is common to refer to divorce, custody and visitation as matters of "family law," strictly speaking Japan does not have such a thing. The principal body of what is generally considered family law is contained in Part IV of the Japanese Civil Code, which is actually titled "Relatives." In substance, it is concerned mainly with how family relationships are created, modified and terminated, and includes not just the rules by which marriages are formed and terminated, but also those governing the widespread practice of adoption (adult adoption remaining a common practice for households that wish to continue the family name, traditions or business but have no male children to do so).
The code also explains some of the duties of individuals within these relationships, but contains almost no provisions laying down rights, particularly after a relationship has been terminated. Thus, the code is silent on post-divorce child support, visitation and alimony (as distinct from division of marital property). Such relief as is awarded in these areas has effectively been manufactured by the courts according to their own unofficial rules and standards.
In essence, the "black letter" family law that does exist in Japan is concerned more with the form than the substance of familial relationships. This reflects the historical importance of the household rather than the individual as both a social unit and a nexus of responsibility for dealings with society and government. This may be why the government- administered koseki system — officially translated as "family registry" (though "household registry" would be more accurate) — remains an important institution, despite being so anachronistic that the average Japanese person may struggle to explain what purpose it serves in 21st century democratic society.
The family registry has its beginnings in a system implemented by the government at the start of the Meiji Period, designed to help maintain order at a time of great political upheaval. It did so by enabling the new government to keep track of who belonged to which household, and which people were "out of place." The family registry thus traces its roots directly back to a 19th century community surveillance system. It was also a tool of class warfare: Adopting a registration system that kept track of class was one of the ways the new government eradicated the rigid samurai-farmer-artisan-merchant neo-Confucian caste system of Tokugawa Japan.
Births, deaths, marriages and divorces — and, recently, changes in gender — are all recorded in the family registry. The registry remains a quasi-public record, and a copy of it is still an important identity document, and may be required for a passport application or other purposes. As an identity document, however, the family registry suffers from a number of deficiencies, since it shows little more than who is officially related to whom and how, and possibly where in Japan the family has its roots (it being possible to have a registry that goes back many generations).
The family registry can reveal all sorts of information about people that in many countries would be nobody's business and, more importantly, that can be the source of various forms of discrimination. For example, only Japanese nationals can have family registries, so ethnic Koreans who have lived in Japan for generations without naturalizing are readily identifiable, as are those who marry foreigners (this involves a special notation in the Japanese spouse's registry). The document also shows whether children were born out of wedlock, and can be used to trace family origins. While it is possible for a marrying couple to start a completely new registry, this can arouse suspicions that you are trying to hide something about your pedigree.
The fact that the family registry remains a source of a person's official identity has a number of ramifications, most of which seem negative. Reflecting the "form over substance" character of the registry, the "identifying information" may not actually be accurate. For example, since the registry reflects family origin rather than actual residence, the "domicile" shown in a Japanese passport may be a place where its holder was neither born nor lives.