Inequality in Japanese Marriage and Divorce Laws in 2002

J. Sean Curtin (Professor, Japanese Red Cross University)

A full list of articles in this series can be found here.

Article 14 of the 1947 Japanese constitution provides that "all of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin." Article 15 enfranchised women and Article 24 gave them equality in matters of marriage and divorce. However, there are still some areas of gender disparity in the current marriage and divorce laws. Article 24 of the Japanese Constitution (1947) declares:

"Marriage shall be based only on the mutual consent of both sexes and maintained through mutual cooperation with the equal rights of husband and wife as a basis. (2) With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes."

Article 24 clearly says that equality and mutual respect should be the basis for marriage and divorce. Despite the stated aims, at the beginning of the Twenty-first Century there are still some elements of gender bias in the Civil Code. With regard to the marriage, Article 731 of the Civil Code states that "Males under eighteen years of age and females under sixteen years of age are not eligible for marriage." Today, many people believe that it is time to make the legal age of marriage equal for both men and women.

Perhaps the most contentious aspects of the current law is the ban on women re-marrying immediately after divorce (Civil Code Article 733). A man can remarry as soon as he divorces, but a woman has to wait six months. The original reasoning behind the half year interval was to minimize confusion and disputes arising over determining the paternity of any child born in the months following a divorce (Civil Code Article 772). In 1947, contraceptives were unreliable and DNA tests non-existent, giving some justification for this measure. However, by the nineties and beyond, this stipulation seemed positively anachronistic.

From a strictly scientific standpoint, DNA testing can reliably determine parenthood which makes Article 733 redundant. Moreover, during the nineties, the courts themselves were allowing DNA tests to be used in divorce related cases involving disputed lineage. One such illustrative case was a 1994 paternity dispute at the Oita District Court that was based around DNA evidence. During an earlier 1992 divorce suit, a former wife had revealed that her 26 year old son was not her ex-husbands biological child. This caused the father to initiate the 1994 petition.* This case also clearly demonstrates that there is nothing to stop a woman having another man's child while married, which further erodes the relevance of Article 733.

Despite scientific advances, the Supreme Court upheld the legitimacy of Article 733 in a 5 December 1995 ruling (Supreme Court Third Petty Bench Decision 1563 Hanji 81). The litigation was brought by a couple from Hiroshima prefecture whose marriage registration had been rejected in December 1988 because of the six month rule. This meant that the couple were unable to formally adopt the women's children by her previous marriage and had to wait until June 1989 when the marriage was legally recognized. In the original ruling, the Hiroshima district court rejected the couples' argument that the six month waiting period violated the constitution. The court said that its decision was based on the fact that "only women can become pregnant" and therefore Article 733 did not infringe equality under the constitution. The constitutionality of this provision was later upheld by the Hiroshima High Court on 28 November 1991. The Supreme Court also concurred with the lower court's decision and the six month ban still remains in force in 2002.

The 1995 Supreme Court decision angered women's rights campaigners who questioned the legitimacy and relevance of the article in the high-tech nineties. Since the decision, some judicial experts have argued that the waiting period should be shortened to a hundred days while others have said the article should be completely removed from the Civil Code. Despite the legal debate and scientific advances, the government has made no plans to revise or abolish the article.

Legally disputed biological relationships are clearly best resolved by accurate scientific means rather than by cumbersome legislative measures. The need for women to have to wait six months longer than men to remarry seems hard to justify. Marriage is the foundation stone of the Japanese family and should be built on equitable laws. Some lawmakers point out that Japan is not alone amongst developed countries in having unequal marriage and divorce codes.** However, it would be a positive step towards creating a more egalitarian society if outdated statutes were abolished and men and women were treated equally under the law.

Notes

* Parenthood Not Merely a Genetic Issue, Court Rules, Japan Times 18 November 1997, p.2 [The Oita district court ruled that even thought DNA test results showed that the husband was not the biological father, the man's request to have it legally confirm that the boy was not his son was denied. The man had spent over twenty years living with the boy, treating him as his son. The court ruled that this made him the boy's father regardless of biological considerations.]

** EQUALITY NOW, Marital Status

Social Trend Series Related References

The Current State of Divorce in Japan: Record Number of Marital Dissolutions in 2001
J. Sean Curtin, Social Trends: Series #10, GLOCOM Platform, 7 October 2002

Japanese Marriage Trends in 2002: Later Unions and More Diverse Families
J. Sean Curtin, Social Trends: Series #9, GLOCOM Platform, 3 October 2002

Legal References

Constitution of Japan

Article 14
(1) All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status, or family origin.

Article 24
(1) Marriage shall be based only on the mutual consent of both sexes and maintained through mutual cooperation with the equal rights of husband and wife as a basis. (2) With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.

Japanese Civil Code

Article 731.
(1) Males under eighteen years of age and females under sixteen years of age are not eligible for marriage.

Article 733.
(1) A woman may not remarry until after six months from the day the dissolution or annulment of her prior marriage have passed. (2) If she is pregnant from before the dissolution or annulment of her prior marriage, the provisions of the preceding subsection do not apply from the day she gives birth.

Article 772
(1) A child conceived during marriage shall be presumed to be the husband's child. (2) A child born after 200 days of marriage or within 300 days of the dissolution or rescission of marriage shall be presumed to have been conceived during the marriage.