International Marriages in Japan: Part Two – Impact of 17 October 2002 Supreme Court decision on International Marriages

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

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

This is the second in a series of articles on various aspects of "international marriage" (a union in which initially one of the spouses is a non-Japanese citizen).

In the first part of this series, the inadequacies of the current legal framework for international marriages were analyzed (International Marriages in Japan: Part One - Visa status of non-Japanese spouses in 2002). In this article the implications of a recent Supreme Court ruling on the issue are examined.

On 17 October 2002, the Supreme Court issued its first ever decision on the visa status of a non-Japanese spouse married to a Japanese citizen. This ruling highlights many of the problems facing foreign wives with a Spouse Visa, but whose marriage has produced no children. This is a significant ruling as it is the first case that has made its way up to the nation's highest court. The verdict exposes the inadequacies in the current system and shows that Japanese law on this issue is not up to a global standard.

In 1983, Peancai Midchid, a Thai national, came to Japan for the first time on a Tourist Visa. She was aged 24 at the time. In 1988, she married a Japanese man in Thailand, returning to Japan in April 1989 on a Spouse Visa. In 1990, her husband left the couple's home after having admitted to fathering two children with another woman. Even though separated from her husband, she managed to get her visa renewed every year until 1993. In total, she lived separately from her husband for a period of four years and eight months before the renewal of her visa was denied.

In April 1994, the local immigration bureau rejected her renewal application on the grounds that her marriage was void as she and her husband were living apart. This decision prompted her to file a lawsuit at the Osaka District Court to overturn the immigration bureau's decision. Peancai Midchid's lawyers argued that it was illegal for the government to deny the renewal of her visa in April 1994 as the couple are still legally married, even if living separately. Furthermore, the separation was not due to any fault on her part and it would be grossly unfair to uproot Midchid from Japan because of the adulterous actions of her husband. Additionally, Midchid hoped that the relationship with her husband could be repaired.

In December 1996, the Osaka District Court rejected her lawsuit on the straightforward grounds that her marriage had broken down and reconciliation was unlikely. In rejecting her claim for a new Spouse Visa, the court noted the following: "The couple's relationship has lost its significance and is unlikely to be restored." They ignored the argument of her lawyer that non-renewal was unjust because her husband's behaviour was responsible for the breakup and Midchid was completely blameless.

Peancai Midchid immediately appealed the decision, taking her claim to the Osaka High Court. Two years later in December 1998, the high court ruled in her favour, overturning the decision of the lower court. This was a highly significant ruling as the Osaka High Court clearly recognized that the current legal position of some foreign spouses is unequal and accepted the arguments presented by Midchid's lawyer. In part of its opinion, the court noted: "It goes against justice to be forced to leave the country because of the extramarital affair committed by the plaintiff's husband." In another passage, the court acknowledged the global dimension of the case: "The husband is responsible for the marriage breakup. Unless the status of a wife is legally protected, the system will be considerably unjust in today's world, in which an increasing number of foreign people are married to Japanese citizens." The government immediately appealed the ruling.

On 17 October 2002, the Supreme Court overturned the Osaka High Court ruling which had both granted Midchid the right to stay in Japan as well as recognizing the unjust situation some foreign spouses currently face. The Supreme Court presiding judge, Masao Fujii, basically adopted the line of reasoning taken in the original 1996 Osaka District Court decision. Part of the new judgment read: "Foreigners cannot satisfy the requirements for a Spouse Visa even if they are legally married to a Japanese, but not in an actual relationship." Another passage stated: "Even when a foreigner is legally in a marital relationship with a Japanese, that person has not satisfied the requirements for legal residency if their relationship has lost the material base for leading a social life." Noting that the husband now had two children from another relationship, the ruling also noted: "The marital relationship has no prospect of being mended."

Peancai Midchid, who is now 43 and living in Wakayama, signaled her intention to apply for special permission to be granted for Permanent Residency status. Having lost her case, this is now the only legal avenue open to her. She also expressed anger and frustration at the decision.

The Supreme Court clearly rejected the Osaka High Court argument that looked beyond the simple regulations of the immigration authority to the wider injustice of the situation. The Supreme Court's interpretation of the law now confirms that a foreign spouse with no children can risk deportation from Japan if their marriage has breakdown through no fault of their own.

The ruling implies that if a foreign spouse with no children wants to avoid the threat of deportation, their marriage must have both a legal and tangible shared-living basis. This ruling validates the current criteria the Immigration Bureau adopt when assessing the renewal of a Spouse Visa. Regardless of the circumstances of the divorce, the Spouse Visa will not be renewed unless a couple is actually living together as husband and wife. After divorce, once a Spouse Visa has expired, if the former spouse wishes to stay in Japan, they must seek to change their visa status or risk deportation.

The ruling now clarifies the unequal status of foreign husbands and wives holding a Spouse Visa without any Japanese children. Japanese spouses can breakup a marriage by committing a misdeed and as a result the guiltless foreign spouse faces the prospect of deportation through no wrongdoing on their part. This situation is clearly unjust and gives a carte blanche to irresponsible Japanese spouses. This decision will be particularly bad news for foreign wives who are subjected to domestic violence, since they risk deportation if they attempt to flee physical abuse.

Hopefully, the government will consider issuing new guidelines to the Immigration Bureau to treat foreign spouses in these circumstances leniently when it comes to changing their visa status after a divorce. The government should seriously reflect on the Osaka High Court judgment which clearly encapsulated the unfairness of the current situation. The opinion also clearly identified the global perspective on the issue, when it stated: "Unless the status of a wife is legally protected, the system will be considerably unjust in today's world, in which an increasing number of foreign people are married to Japanese citizens."

In the next article in this series, the focus will be on the Poverty of Amerasian children in Okinawa (International Marriages in Japan: Part Three).