Japanese Family Law And Practice In A Nutshell

Marriage

Marriage rates are quite low in Japan, in part, because Japanese young women feel that they have a better life when single than when married. There is very little employment discrimination against never married, childless women in Japan, but employment prospects for women who are married and/or have children are quite poor. The consequences of getting married and then divorced in Japan, especially if there are children, also discourage hasty marriages.

A significant minority of Japanese men seek wives from China, Korea or Thailand because Japanese women are disinclined to marry.

Marriage is by executing a family registry form, with any wedding ceremony having no legal significance. Western style Christian marriages are the most popular form of Christian religious observance in Japan, often by people who do not follow Christian religious practices in other parts of their lives.

Polygamy is forbidden. 

Men can marry at age 18, women can marry at 16. Minors who marry need parental consent. The age of majority in Japan is currently twenty, but that will be reduced to 18 as of April 1, 2022.

Arranged marriage is rare but not unheard of in the current generation, although the consent of the parties to the marriage is formally required. Arranged marriage (sometimes arranged when the children are quite young and not of marriage age) was quite common in prior generations, and predominant in the period significantly prior to World War II. 

The decline of arranged marriage closely coincided with the rise of the nuclear family in Japan (about 50% on the eve of World War II and now well in excess of 60%) in lieu of the traditional "ie" household that would typically include a married couple in the oldest generation, their married sons and their wives, and their unmarried children and grandchildren.

Ending The Marriage

Prior to World War II, Japan had one of the highest divorce rates in the world (although still low by modern standards) and a husband has a unilateral right to divorce his wife.

Divorce rates are now very low in Japan for reasons that will be summed up in the conclusion.

While granting a divorce in Japan is formally fault based and the party requesting a divorce that is not by mutual consent must be not at fault, divorces are fairly freely granted and in 90%-95% are granted in uncontested proceedings by filing a form, or a mediation with the consent of both spouses. There is no waiting period for a mutual consent divorce.

There is no waiting period following a divorce before remarriage is allowed due to a 2016 decision of the Japanese Supreme Court that ruled the prior waiting period unconstitutional.

Emerging practices ceremonially related to divorce in Japan are fascinating but beyond the scope of this post.

Property Division

Property is divided in a divorce in Japan on a de facto community property system. Property owned prior to divorce or received by gift or inheritance during marriage is separate property, all other property is split approximately equally with an adjustment for unpaid temporary spousal support if necessary. Company pensions have only been split in divorce property divisions since 2007.

In a divorce without common children, property division is the only significant issue to be decided in the divorce and this is quite formulaic.

In families that are not self-employed, residences, cash, postal savings accounts and a corporate pension make up most family wealth for most families. More elaborate investments such as stocks and personally owned bonds are considerably more rare in Japan than in the West.

There is a significant problem with Japanese citizen spouses (usually husbands) who are married to non-Japanese citizen spouses, forging divorce papers on behalf of their spouse, often on unfavorable terms, although there is a procedural method that can be used to prevent this from happening if it is feared (by filing a "non-consent to divorce motion" with the family registry that remains in effect until revoked). Obtaining relief when a divorce document is signed is very difficult and law enforcement does not take such cases very seriously, especially when a foreign spouse is involved.

Temporary Spousal Support

Temporary spousal support may be awarded for the pendency of the divorce because spouses must maintain their spouses and children during marriage at the same standard of living that they enjoy.

But, there is no post-divorce alimony, and divorce proceedings themselves tend to be short.

Paternity, Child Custody and Child Support

Paternity is presumed to be the husband's for married couples, but can be established legally in a father other than the husband in the case of an unmarried mother, or in the case of a married woman whose husband disavows paternity and prevails.

Child custody is an all or nothing affair as to each child. Each child is awarded to the husband or to the wife, with no visitation rights, and with no visitation or only minimal visitation voluntarily granted in practice. Even siblings who are awarded to different parents may never see their siblings again or only do so as adults. 

Prior to World War II, children were almost always award to the husband. But, now about 80%-90% of children end up with the wife, including almost all children born after the divorce, and with younger children more likely to end up with the mother.  In international divorces, however, Japanese citizens tend to be strongly favored over non-Japanese citizens in child custody decisions.

Parental child abduction of a child not awarded to a parent is more common in Japan than in any place other than Mexico, both domestically and internationally, and legal efforts to recover children who are abducted are usually ineffectual.

Child support is usually determined based upon a standard table with the husband's income, the wife's income, each spouse's self-employment status, who has custody of each child, and the age of each child. In very high income cases or exceptional cases, are more involved calculation can be used. Child support awards tend to be rather stingy. Only about 10-20% of divorced men pay the child support that they are obligated to pay and enforcement of this obligation is not very efficient. Child support ends when the children are grown, and collecting arrears of child support is particularly difficult.

Divorce Stigma

Divorce is a serious stigma for both divorced men and divorced women. Employers usually discriminate against both (and against couples with troubled marriages) in hiring and promotion, and some private schools will refused to admit children whose parents are divorced as students. 

Advice columns routinely counsel women in bad marriages to stick it out in all but the most dire and life threatening situations. 

This said, the stigma associated with divorce is declining.

Economic Incentives Not To Divorce

In practice, divorced women with children are usually awarded the children, but receive no meaningful and reliably paid economic support from their ex-husbands and have seriously diminished economic prospects as a result of their marriage, having children and their divorce. Divorced spouses are also often seen as inferior marriage prospects. And, if their husbands abduct their children, they may be hard pressed to get the children back. But, they will receive a fairly decent property settlement on a one time basis in a long marriage in an affluent family where lots of property was acquired during the marriage. Many divorced spouses will return with their children to live with their own parents if their parents are still living.

The economics of the situation also need to be considered in light of Japan's weak governmental social safety net (although Japan, like almost all other developed countries has universal health care). Many kinds of economic support provided by the government in the West (e.g. affordable housing support, unemployment payments, old age pensions, support when disabled and death benefits) is provided in Japan mostly by large employers committed to lifetime employment for their male employees and unmarried, childless female employees, although lifetime employment has grown less common over time. So, divorced women are cut off from the economic security provided by a husband's lifetime employment arrangement unless they remarry.

The result is that the economic pressure not to divorce is great and the pressure on divorced women to remarry is great. This is why divorce is so rare in Japan, and so prone to be avoided even in a bad marriage situation.

Footnote on birth control and abortion.

Historically, and still now to a great extent, condoms are the sole means of birth control in Japan. But condoms are used very reliably, with married Japanese women averaging about two children in their lifetimes, and unmarried Japanese women having children out of wedlock less often than almost any other country despite not being particular chaste. 

Abortion is quite common when condoms fail to prevent pregnancy and has little stigma attached to it.