Asia-Pacific, Development & Aid, Gender, Headlines, Human Rights, Population

JAPAN: Gender Biased Divorce Law Under Review

Suvendrini Kakuchi

TOKYO, Apr 24 2007 (IPS) - The birth of her baby four years ago was supposed to be a happy occasion for Masae Ito, 41. But she and her second husband were in for a nasty surprise at the registry office.

”I was told flatly by ward officials that the baby (legally) belonged to the husband I had divorced almost a year earlier. I could only gasp in disbelief,” said Ito, a plucky woman who now manages a small non-profit organisation geared to support mothers in similar situations.

Ito is currently working hard to have changes made to the archaic Civil Code law that prevents women from remarrying for six months after divorce and also prohibits babies born within 300 days of the divorce from being recorded under the family register of their biological fathers.

Only through a special court procedure, whereby the former husband testifies that the child is not his, can the problem be rectified. Husbands, however, are not covered under this law.

Japanese law calls for families to have family registers apart, from individual birth certificates. The register records the background of each family member and is maintained by the householder – usually the husband.

Changing the contentious civil code – established in 1898 to ensure a child is not illegitimate at a time when DNA testing did not exist – is proving difficult.

Gender experts point to the ongoing debate in the Japanese Diet (parliament) on making a long overdue change to a legal stipulation that no longer makes sense as yet another example of official resistance to gender equality.

‘’The issue of not accepting the father of a child on the grounds that the mother was married to another man before, is beyond logic. The difficulty to change this irrelevant law reflects the desire on the part of conservative politicians to protect Japan’s male-dominated society,” Fujiko Sakakibara, a lawyer and gender expert, told IPS.

A bone of contention for conservative politicians in the ruling Liberal Democratic Party (LDP) is that abolishing the law would break family values by encouraging divorce and possibly increase the number of children born out of wedlock.

Recent remarks by senior politicians referring to women in this situation as ‘’committing adultery” have caused bitter resentment. Moves to soften the old law by accepting DNA testing or a doctor’s certificate showing the date of conception or reducing to 100 days the wait for women to remarry, have only been met by even more resistance by activists.

‘’The whole case is a shame on Japan. It shows how Japan ignores the rights of women to start married lives afresh after divorce. Moreover, children are denied their right to register their biological father and mother. Laws take precedence over the happiness of women and children,” says Yoko Sakamoto, editor of M-Net, an Internet publication that focuses on gender issues.

Indeed, Ito, who has advised more than a hundred women who grapple with this predicament, says many of them suffer mental anguish when they have to approach the courts to settle with their former husbands.

‘’There are cases where women are the victim of domestic violence and do not want to meet their former husbands ever. In other cases, the wounds from divorce can be still raw and it can be nerve wracking for women to be forced to meet and appeal to their former husbands for permission to register their new offspring under their biological fathers,” she explained.

As a result of these difficult stipulations, activists have found hundreds of unregistered children in Japan. There is no official count because of the lack of concrete statistics, but cases recorded in the Family Courts, says Ito, indicate there are at least 3,500 children per year who go unregistered.

One consequence of the contentious code is that unregistered children cannot apply for national benefits or have a passport issued. A woman, quoted in the local media, said her new baby was born prematurely and does not have a family register. Both her second husband and she worry about medical bills.

However, last week, the government announced that it has decided to issue passports from May to children not registered due to the provisions of the code relating to recently divorced mothers. The gesture is a sign that the resistance by mothers is paying off.

Ito’s own case is regarded as a landmark in the fight for equality. Rather than plead her case in court, she lobbied for help from politicians.

‘’I met with sympathetic politicians who introduced me to officials at the justice ministry. After long arguments I was allowed to register my child under a new family register without going to Court. But the law itself remained intact which is why I started my grass root movement,” she said.

Activists hope to push the change before the current session of the Diet ends in June. Already the ruling LDP and its coalition partner, the New Komeito party, are discussing the matter to usher in a new legislation.

‘’We have to work step by step to change things and make Japan a better place for women,” said Sakamoto.