Aotake, Mika

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Title Problems in Divorce Law in Contemporary JapanAuthor(s) Aotake, MikaCitation Osaka University Law Review. 66 P.51-P.58Issue Date 2019-02Text Version publisherURL http://hdl.handle.net/11094/71162DOIrightsNoteOsaka University Knowledge Archive : OUKAhttps://ir.library.osaka-u.ac.jp/repo/ouka/all/Osaka UniversityProblems in Divorce Law in Contemporary Japan＊Mika AOTAKE＊＊1. IntroductionIn 1898, divorce by mutual consent was introduced into the Japanese CivilCode. Not influenced by Christianity, divorce by mutual consent was widelyaccepted in Japanese society1) as divorce did not have religious connotations, butwas a private family matter. Divorce by mutual consent was based on the idea thatdivorce by litigation in open court was an embarrassment for the family anddivorce should be completed outside the court, privately and secretly2). After WorldWar II, in 1947, the Civil Code was revised, and the divorce system was alsochanged, but divorce by mutual consent was not removed from the present CivilCode. This is still the current characteristic of Japanese divorce law and has led tosome problems.2. Divorce rates in JapanAs illustrated in Figure 1, although the divorce rate in Japan has decreased in＊ This essay is based on the manuscript “Family Law and Family Patterns in ContemporaryJapan,” which I presented at the “Internationales Mediationszentrum für Familienkonflikteund Kindesentführung” conference on January 25 2018, in Berlin.＊＊Associate Professor of Civil Law, Osaka University Law School.1) Atsumi Kubota, Family Law, pp.86-88 (Japan, 2017).2) Satoshi Minamikata, Family and Succession Law in Japan, p.80 (Netherlands, 2015).3) Ministry of Health Labour and Welfare, 2017 survey of population dynamics, annualestimates, p.4, http://www.mhlw.go.jp/toukei/saikin/hw/jinkou/suikei17/dl/2017suikei.pdfOSAKA UNIVERSITY LAW REVIEW No. 66 (February 2019) 51-582.521.510.501970 1975 1980 1985 1990 1995 2000 2005 2010 2015 2017Figure 1. Divorce rate per 1,000 population in Japan3).the last 20 years, overall it has increased over the last 50 years. In 2017, there were212,000 divorces, and this is a divorce rate of 1.7 per 1,000 population, which isnot high compared to other nations, as illustrated in Figure 2.3. The Japanese divorce systemThere are five divorce methods in Japan: Divorce by mutual consent, divorceby Family Court mediation, divorce by determination of the Family Court, divorceby reconciliation, and divorce by litigation at the Family Court. It is very commonin the Japanese divorce system that the parties divorce by mutual consent withoutthe involvement of third parties. In this essay, three of these methods will beexamined: (1) Divorce by mutual consent, (2) divorce by Family Court mediation,and (3) divorce by litigation at the Family Court. These were chosen because theyare the more important divorce methods in respect of quantity and study. Asillustrated in Figure 3, in practice most divorces are divorce by mutual consent. In2017, the divorce rate by mutual consent was 87.2%, Family Court mediation was9.8%, and litigation was only 1%.(1) Divorce by Mutual Consent (87.2% of divorces)For divorce by mutual consent, parties can divorce by agreement and by usinga divorce notice form. After reaching an agreement on the divorce, as a formalrequirement, the parties need to complete a divorce notice form indicating that bothparties wish to divorce and that one party retains the parental rights and duties afterthe divorce. The couple is not required to state the reason for the divorce, and thedivorce notice form is submitted to the family registration office. The two partiescan divorce only by agreement and by submitting the divorce notice form.4) Ibid. p.5.Problems in Divorce Law in contemporary Japan520 0.5 1 1.5 2 2.5 3.53United Kingdam（2012）Sweden（2014）Italy（2014）Germany（2014）France（2013）United States of America（2015）South Korea（2016）Japan（2017）Figure 2. Divorce rate: International comparison4).The main advantages of divorce by mutual consent are that it does not requiretime or financial resources and so it is not a burden on the parties. However, at thesame time, it does have disadvantages. There is a high chance that the parties agreeto an unfair divorce because there is less involvement in the divorce and so there isalso less of a chance of avoiding an unfair divorce. For example, the parties mayget divorced but fail to decide on child-care expenses or division of property.(2) Divorce by Family Court mediation (9.8% of divorces)The parties can create a divorce agreement through divorce mediation, and theparties can apply to the Family Court for divorce mediation at any time. Themediator does not have the authority to determine the divorce, but its role is toassist the parties in reaching an agreement.With Family Court mediation, the mediator is a third party involved in thedivorce agreement. This solves, to some extent, the problems of divorce by mutualconsent, in which the agreement is made only by the parties and leads to an unfairdivorce. This means that mediation has an important role in avoiding unfairdivorces. Mediators are expected to observe the divorce agreement process andother relevant issues such as child expenses, division of property, and thefrequency of contact with children.(3) Divorce by litigation at the Family Court (1% of divorces)In the case that the parties fail to reach an agreement, they can bring theircase, as litigation, to the Family Court. Before litigation commences, underJapanese law, the parties must undertake mediation; this is the rule of mandatorymediation prior to litigation. This indicates that dialogue as a first step is the best5) 2017 survey of population dynamics, graph number 10.4, number and rate of divorce,classified method according to years, https: //www. e-stat. go. jp/stat-search/files? page =1&toukei=00450011&tstat=000001028897OSAKA UNIVERSITY LAW REVIEW No. 66 (February 2019) 530 10 20 30 40 50 60 70 80 90 100LitigationReconciliationDetemination by Family CourtFamily Court mediationMutual consentFigure 3. 2017 divorce rate classified by method5).way of settling a divorce. Therefore the first stage of divorce without litigationshould be attempted as much as possible.During litigation, a judge at the Family Court can decide to grant the divorceor not. Divorces can be granted for five reasons under Article 770 Paragraph 1 ofJapanese civil law:i) The defendant has committed an act of unchastity.ii) The defendant has deserted the plaintiff with malice.iii) It is unknown for three or more years if the defendant is alive or not.iv) The defendant suffers from serious mental disease, and there is nopossibility of recovery.v) There exist other serious circumstances that make it difficult for bothparties to continue in the marriage.The first and second reasons are the fault of the defendants, but the grounds asa whole are based on the fact that the marriage has broken down. However, for along time the jurisprudence did not grant divorces when the marriage had brokendown, and the plaintiffs were the cause of the breakdown, for example, when ahusband committed an act of unchastity, and because of the unchastity the marriagefell apart, and the husband insisted on divorce from his side. The Supreme Courtstated that these cases were against the principle of fairness and equality6).However, in 1987, the Supreme Court granted a divorce with conditions in the casewhere the plaintiff was at fault and caused the breakdown of the marriage.4. The problems of divorceAfter divorce, the financial circumstances of men and women vary. This is asa result of the different gender roles in married couples. However, the number ofworking married women is increasing. In 1980, the number of married coupleswith a housewife or househusband was 11,140,000, and the number of dual-earnercouples was 6,140,000. The number of couples with a housewife or househusbandwas much more than dual-earner couples at the time. In 2016, the numbers hadchanged to 6,640,000, and 11,290,000 respectively, an almost reverse of thenumbers, and the number of dual-earner couples is now much higher than coupleswith a housewife or househusband.7)6) Decree of the Supreme Court, February 19 1952, Minshu 6-2-110.7) Cabinet office, 2017 white paper on the countermeasures against declining birth rates, p.84,http: //www8. cao. go. jp/ shoushi/ shoushika/ whitepaper/ measures/ w- 2017/ 29 pdfhonpen/ 29honpen.htmlProblems in Divorce Law in contemporary Japan54While the number of working married women has risen, the gender roles ofmen and women have remained, and most housework is still done by women. Thetime spent on housework per day by married men and women with children undersix years old in Japan is 7.34 hours for women and 1.23 hours for men, and thisdifference between men and women is very large compared to other countries.One of the reasons for the retention of gender roles is working hours. In 2016,the proportion of workers working 49 hours or more per week was 28.6% for menand 9.1% for women, while male workers tend to work longer hours than femaleworkers.9) Another reason for the retention of gender roles is the wage differencesbetween men and women. In 2017, the wage difference between full-time male andfemale workers was 26.6%.10)5. Children after divorce(1) Joint-custody not allowedIn a divorce where children are involved, joint-custody is not allowed andeither the mother or father acquires parental rights and duties. This rule is based onthe idea that joint-custody after divorce would be confusing for children. However,as parents fight about parental rights and duties in many cases, this rule is not idealfor children11). The courts tend to respect the will of a child when they are older8) Cabinet office, 2018 white paper on the countermeasures against declining birth rates, p.30,http://www8.cao.go.jp/shoushi/shoushika/whitepaper/measures/w-2018/30pdfgaiyoh/30gaiyoh.html9) The Japan Institute for Labour Policy and Training, Databook of International LabourStatistics, Table 6-3, https://www.jil.go.jp/kokunai/statistics/databook/2018/06/p209_t6-3.pdf10) The 2017 Ministry of Health, Labor and Welfare, survey of wages, p.4, https://www.mhlw.go.jp/toukei/itiran/roudou/chingin/kouzou/z2017/dl/13.pdf11) Shuei Ninomiya, Family Law, pp.112-113 (Japan, 2013).OSAKA UNIVERSITY LAW REVIEW No. 66 (February 2019) 5586420Japan U.S.A UnitedKingdamFrance Germany SwedenWife　　　HusbandFigure 4. The time spent on housework per day8).than ten years old, and so in practice, mothers normally acquire parental rights andduties. In fact, mothers acquire the parental rights and duties in approximately 80%of the divorce cases in which children are involved12).This imbalance results from the fact that mothers are normally moreresponsible for bringing up children, and mothers are evaluated as better parentsthan fathers. However, this evaluation is problematic from the point of genderequality13).(2) Single mother familiesIn 2016, there were 1,232,000 single-mother families and only 187,000 single-father families. That means that 85% of single-parent families were single-motherfamilies. From this, 79.5% of single-mother families were as a result of divorce,and 75.6% of single-father families were the result of divorce14). Single-parentfamilies tended to be poorer than families with two parents, and 50.8% of single-parent families with children were low-income families. This proportion isapproximately 40% higher than families with children where there are two or moreadults15). The poverty of children is a serious problem in Japan, and that isexacerbated by the poverty of single-parent families.Single mothers tend to be in more difficult financial situations after divorcethan single-fathers. In 2016, the annual income of single-father families was 4.20million yen, while the annual income of single-mother families was 2.43 millionyen16).As mentioned above, the main reason for the poverty of single-mothers is thewage differences between men and women. Another reason is the lack of child-care expenses received after divorce, as illustrated in Figure 5. The rate of single-mother cases in which the parents agreed on child-care expenses after divorce isonly 45.9% and if we examine the data in detail, the agreement rate for divorce by12) Ibid. p.111.13) Ibid. p.111.14) The Ministry of Health, Labor and Welfare, report on support for single-parent families,2016, p. 1, https: //www.mhlw. go. jp/file/04-Houdouhappyou-11923000-Kodomokateikyoku-Kateifukishika/0000188136.pdf15) The Ministry of Health, Labor and Welfare, lifestyle survey, p.15, 2016, http://www.mhlw.go.jp/toukei/saikin/hw/k-tyosa/k-tyosa16/dl/16.pdf16) The Ministry of Health, Labor and Welfare, report on support for single-parent families,2016, p. 1, https: //www.mhlw. go. jp/file/04-Houdouhappyou-11923000-Kodomokateikyoku-Kateifukishika/0000188136.pdfProblems in Divorce Law in contemporary Japan56mutual consent is 37.8%, which is lower than the average rate, and for cases ofother procedures, such as divorce by mediation or litigation, the rate is 79.6%,which is higher than the average rate. The rate of single-mother cases where child-care expenses are never received is also very high. For divorce by mutual consent,the rate is 59%, and for other procedures such as divorce by mediation andlitigation, the rate is 30%.(3) Contact between parents and children after divorceUntil recently, an article about parental contact with children after divorce didnot exist in the Civil Code. However, a judge had determined that contact withchildren was the minimum right of parents18). In 2011, contact with children wasadded to section 766 of the Civil Code. The various methods of contact includedindirect and direct contact as accepted by the court, for example, e-mails andletters.As illustrated in Figure 6, the problem is that there are many divorce cases inwhich parents do not agree on contact with children. In single-mother cases, 73.9%of divorces by mutual consent are without agreement on contact with children, and45.3% of divorces by other procedures are without agreement on contact withchildren. This indicates again that similar to child care expenses cases, divorce bymutual consent without the involvement of a third party results in numerousproblems.However, there are many cases in which contact is not carried out whether the17) The Ministry of Health, Labor and Welfare, the report of support for single-parent families2016, pp. 53-58, https: //www. mhlw. go. jp/file/06-Seisakujouhou-11920000-Kodomo kateikyoku/0000188168.pdf18) Determination of the Family Court Tokyo, December 14 1964, Kateisaiban-geppo 17-4-55.OSAKA UNIVERSITY LAW REVIEW No. 66 (February 2019) 570.00% 10.00% 20.00% 30.00% 40.00% 50.00% 60.00% 70.00% 80.00% 90.00%Rate of never received casesRate of agreement casesDivorce by other procedureDivorce by mutual consentFigure 5. Child-care expenses in divorce―single-mother families17).divorce is by mutual consent or by other procedures and the proportion of single-mother cases in which contact is never carried out is 42.2% for divorce by mutualconsent and 48.1% for divorce by other procedures.6. ConclusionWe can easily see that the Japanese divorce system is problematic and manyfamilies suffer from poverty after divorce. One of the reasons for these problemsfrom the point of view of divorce law is divorce by mutual consent without anyinvolvement of a third party. Divorce by mutual consent has benefits for the partiesinvolved as it is easy and free and the will of the parties is respected, and therefore,more than 80% of divorces are by mutual consent. However, at the same time,divorce by mutual consent makes it difficult, to deliberate on the important issuesafter divorce, such as child-care expenses, contact with children, and sometimescreates unjust divorces that do not positively impact on the welfare of the childreninvolved.19) The Ministry of Health, Labor and Welfare, the report of support for single-parent families2016, pp. 65-70, https: //www. mhlw. go. jp/file/06-Seisakujouhou-11920000-Kodomo kateikyoku/0000190327.pdfProblems in Divorce Law in contemporary Japan580 10 20 30 40 50 60 70 80Contact never carrying outNo agreement of contactDivorce by other procedureDivorce by mutual consentFigure 6. Contact with children in single-mother families19).

Problems in Divorce Law in Contemporary Japan

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Problems in Divorce Law in Contemporary Japan

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