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Divorcing a Japanese

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Japanese family law, or rather the lack of it, as Jeremy Morley1 claims, is a wall that many divorcing women and men have to come across when children are involved. Japan operates a sole custody system, joint custody is not practiced. Furthermore, he argues that a charitable view of the Japanese system of divorce is that it favors a ‘clean break’ so that the divorced parties have little or nothing more to do with each other after the divorce. A less generous interpretation is that it permits the spouse with economic assets (usually the husband) to keep most of his assets, avoid payment of alimony, and provide little or no child support, but the price he pays is the abandonment of any relationship with his children, while other spouse is punished economically, but keeps the children. In other words, it is customary in Japan that, when parents separate, the mother has custody of the children (80-90% of cases when both parents are Japanese), and the father has no access to the children. The law of divorce have long been developed and interpreted by Japanese courts for the benefit of women.2 Unless under extraordinary circumstances, it is usually: Mom gets custody, end of story. The typical ‘deal’ in Japan is that, upon divorce, the father pays nothing for the child support and he never sees his child.

Unfortunately it gets less ‘typical’ and even worse, when one of the divorcing spouses is a foreigner. Then, apart from gender bias, racial discrimination is added. In cases involving a foreign and Japanese parent, Japanese courts consistently "protect" the rights of the Japanese parent over the rights of the foreign parent.3 Amazingly, Japan is one of the few developed countries which have not signed the 1980 Hague Convention, remaining an abduction-friendly country and a magnet for international child abduction.

In conclusion, Japanese family law does not protect the family, decisions of the family courts in Japan are not enforced, and the police are unlikely to intervene. For foreigners who require the assistance of the Japanese legal system in family law situations, there is basically no law. The most hopeless scenario seems a case when a father happens to be a foreigner: he looses twice- as a man due to gender bias, and as a non Japanese facing racial discrimination. Asian women seem to be more vulnerable to the discrimination than Western women. I was always very eager to know how the story goes when a divorcing mother is a Western woman. Even though I have spent many hours searching for some evidence on the Internet, I found only two cases. In the first case, the Japanese spouse produced a fake seal of his Cuban wife on the divorce report. In the latter one, an American journalist living in Tokyo, Margaret Leyman, had signed divorce papers that had, without her knowledge, included the awarding of custody of her son to her husband. She just assumed, in accordance with laws in many western countries, that custody is a separate issue from divorce. Why are there not any other records of cases of Western struggling for the child custody available? Are my informants, especially one of them, pioneers in this matter?

Divorce as a Common Goal; Four Different Paths to Accomplish It.

There are four types of divorce in Japan. Divorce by agreement (kyogi rikon) is a divorce based on mutual agreement. Divorce by mediation in a family court (chotei rikon) is completed by applying for mediation by the family court, and is practiced in cases in which divorce by mutual agreement cannot be reached. At times, when divorce cannot be established by mediation it can be completed by decision of the family court (shimpan rikon). If the family court fails to establish divorce, then application is made to the district court for a decision. Such kind of divorce is named divorce by judgment of a district court (saiban rikon).4

Maria and Misong chose the type of divorce by agreement, though Misong decided to sacrifice her children. Tatiana is most likely to divorce by mediation in the family court. Ania has tried to divorce by mediation for two years, and had to give it up due to no signs of consensus. For the past one year she has been struggling in the district court. Maria was lucky, only if you can call someone lucky knowing that they have lost two kids, and as if it was not enough, got cancer. Unfortunately the twins did not live long. The handicapped one passed away five months after his birth; another one two months later. Both died from unknown reasons, most probably from S.I.D. Maria got ovary cancer five years ago. Nevertheless, ‘at least’ she had no problems getting divorced, which took her less than a month. Her husband was very considerate and generous, and did not cause any problems. She was awarded sole custody of her three children then. As a single mother she obtained a child-support allowance, alimony from her husband, free medical care for herself and the children, as well as government subsidy for utilities and accommodation.

"Now I have two husbands to take care of me, my ex and Koizumi!" - She laughs. "I am a goddess here in Japan only because I am a mother of a Japanese national. They pay me, and treat me like a queen."

However, there is also a less pleasant aspect of being ‘treated like a queen’.

Maria is still on a short term visa, and has to renew it every year. An immigration officer told her that she only had the right to reside in Japan because she was a custodial parent of a Japanese national, and her son should be raised in Japanese culture.

"Japanese chauvinism makes me sick! They don’t care that my son is half Spanish. They say all the time Japanese this, Japanese that. The Japanese are like Hitler with their race and ‘superior’ culture obsession!" – says Maria upset.

I do not even dare to think what things would be like if she had neither the child custody, nor the permanent residence. Foreigners who entered Japan with a spouse visa are forced to leave the country in case of divorce if they are not the custodial parent, and their Japanese spouse refuses to sponsor them anymore.5

My three other informants appear to be less lucky. Their husbands claimed that they would never let them have the child custody. Misong had decided not to fight. Mizuho Fukushima, who works for a shelter for foreign women who flee failed marriages with their children because they do not want to loose them, says that in many cases, Asian women estranged from their Japanese husbands are at the losing end of custody battles.6 Furthermore she argues that the situation is particularly difficult for those women because they have the added problem of getting legal visas to stay on in the country after a divorce. "Asian women are especially vulnerable as a result of lingering discrimination" - says Fukushima.

Misong has attempted to run away to her home country twice. She had hoped that it would teach her husband a lesson, and that he would let her go with the kids if she promised to raise them in Japan. Each time she escaped to Korea, her father, a very conservative man, would push her to go back to her husband.

"Actually my father thinks I should give up the children. They are Japanese so their place is in Japan; besides children belong to their father - he told me. My father is a traditional Korean man, and he could hardly swallow this whole notion of divorce. In his generation divorce was unthinkable. He could only imagine me divorced if my children stayed with their father".

Misong seems to agree with her father’s decision saying that she is still very young, and that she wants to start her life over again, which would obviously be much easier if she had no children with her. I am not sure whether I should believe her. I have known Misong for the past four years, and I have never seen her before so weak, depressed, and insecure. She has always been a very cheerful person, an extremely devoted and loving mother, who was always there for her kids. She burst into tears during the interview:

"I am not as strong as you, Fabiola" - she is sobbing with grief. "You not only work while raising your children, but you also study at Waseda. I could not manage achieving even half of that."

Non-Custodial Parent’s Rights

To make a long story short, after conducting a basic research on the topic, I cannot help gaining an impression that non-custodial parents in Japan, usually fathers, have no rights at all. Maria expressed it in a quite peculiar way in her joke:

"Father’s rights? -ha, ha [she laughs]. Yes, they have one right in Japan for sure, a right to pay! It is like in this Spanish (?) "Barbie joke": A man comes to a toy store to buy a Barbie for his daughter. A shop assistant asks him: But which Barbie do you want? We have many models: a regular Barbie costs 10 Euros, a Hawaiian Barbie-25 Euros, a Divorced Barbie-300 Euros. But why is the Divorced Barbie so expensive?! - Goes the man. Well, you know, replies the shop assistant, the Divorced Barbie comes in a set: she has Ken’s car, Ken’s house, 50% shares of his company, Ken’s…, and so on."

I think Maria explained the concept very accurately, saying that fathers have a right to pay. A ‘right to pay’; not an obligation. Collin Jones7 argues that there is no formalized system in Japanese family law for calculating or awarding alimony; it is often difficult for wives to obtain the 50% share of marital assets they are technically entitled to, and statistics for child support payments are dismal. With respect to the financial aspects of divorce, therefore, the system may appear to discriminate against women.

Normally, if the matter was to be considered in the aspect of humanity, non-custodial parents deserve at least one right- a right for visitation. However, on the Japanese divorce report form (rikon todoke) there is not even a provided space for visitation rights to fill in. As if the issue of visitation rights did not exist. And yet, visitation receives only limited attention from legal scholars and practitioners. There are virtually no books on the subject, and it generally receives one or two pages of treatment at best both in academic texts on family law and divorce handbooks written for general readers.8 For example, in a 200-page book: Kodomo no Jinken Mamoru Chishiki to Q&A9, there are only two pages regarding the rights of children in divorce, of which three sentences are devoted to visitation.

The reason why I bring the issue of visitation about is my presumption that it can be the main cause of Japanese husbands of my informants being so reluctant and stubborn when it comes to the matter of awarding the child custody to their wives. Having had grown up under Japanese regime they must have been aware that once their wives obtain sole custody, they might never be able to see their children again. And it does not help much when my informants try to ensure their husbands that it is not the way we do things in the West. It is a quite rare case in the West that a mother would terminate contact of her children with their father.

Maria nicely surprised her husband with her willingness to let him see their son. He obviously did not expect her to be so flexible. But since life is never that easy, now the problem is her current Japanese boyfriend who gets upset and depressed each time Maria’s ex husband comes to pick up their son for a weekend. He takes Maria’s flexibility on visitation completely personal and gets very jealous. Even though Maria, her boyfriend, and me are really close friends, and we dine and drink together at least one night a week, this time when I come for the interview, Maria’s boyfriend for the first time does not join the conversation, and hides alone in another room. I know that the reason is that we are going to talk about Maria’s divorce, custody rights and visitation. At this point, Maria and her boyfriend, who is doing his best to be a good father for her son, disagree completely.

Ania had a feeling that her husband would view himself as deprived of all rights for their children if she was granted the sole custody, so she tried very hard to convince him that it would not be the case.

"One day I was so fed up with this trial, and the feelings of uncertainty and insecurity, that I went to my husband and said: Listen, I don’t want this war anymore! If the custody is indeed the issue that is holding you back to give me divorce, let’s immigrate while we are still married to a country which has joint custody! He stared at me, listened, and did not run away upstairs what he usually does these days once I open my mouth and even try to talk to him."

Maybe Ania`s husband knows that in Japan the most effective way of terminating visitation, however, appears to be not to agree to it in the first place?

"Kodomo no shiawase", or Child’s Happiness in "Japanese style"

An old Polish proverb says: "fish and children have no voice", which means that children have no right to speak unless asked to. Of course it has nothing to do with the slogan: ‘Divorce is for adults, not children’. While the proverb, thanks to a growing popularity of modern methods of child upraising, is becoming out of date in Poland, it seems to be booming in Japanese family courts. Otherwise, how to explain the fact that Japanese family courts do not consider child’s interest while granting sole custody to only one of the parents, at the same time depriving another one of any rights, most of all the visitation right. Visitation is not a right in Japan because if it were, it could not be terminated so easily. There is a notion in the West that depriving a child of contact with one of his/her parents is a violation of human rights, and I am afraid it will take many years before Japanese family law experts realize this universal truth.

Some say that the Japanese treat children like things or property. Japanese family law "experts" who promote a "clean break" seem completely unaware of the notion that an absent father or mother is the predicting factor for children of divorce to suffer a significantly higher risk of childhood pathologies, ranging from teen suicide and substance abuse to teen pregnancy and violence. Fatherless children do far worse at school, are more prone to depression, more likely to abuse drugs, get involved in crime.10 I wonder how worse it could get in a case of a motherless child, which could be easily practiced in Japanese courts when a foreign mother is involved, and if they discriminate against race indeed.

I believe that while discussing child’s interest it is essential to clarify the whole concept first. I disagree with some anthropologists who argue that "child’s interest in itself is a culturally loaded concept"11 since such approach reminds me of the West-East controversial debate over human rights, whether they are universal or not, in respect of different cultures and beliefs. I have asked all of my informants how they viewed the child’s happiness or the interest of the child, and I thought Maria really hit home by saying:

"To me a happy childhood means living in a peaceful environment with no fights and violence. Even if it meant that parents should rather divorce than let their children look at their destructive relationship. It is horrible for a child to listen and see all the fights of their parents. It hurts them too much."

When the Mediation Fails…

If Maria’s view was only the official definition of child’s happiness in Japanese family law, Ania’s divorce would not have taken so long. Also Misong and Tatiana would not have to stay trapped in their failed marriages.

Japanes family courts, at least at the mediation level, ‘chotei rikkon’, do not seem to be concerned with a quick and just marital conflict resolution for the benefit of children involved. They take their time, as the only purpose of "chotei" was to avoid the enforcement of strict legal rights, or to postpone it. "Chotei", because of the remnants of the Confucian family and social system, may favor the stronger or traditionally authoritative party at the expense of the legal rights of the weaker one.12

Two cases of my informants, Ania’s and Tatiana’s reveal that the mediators sometimes seek a solution by discouraging the weaker (?) party from fighting for their rights and taking legal steps. Tatiana’s private marriage counselor told her directly that she was at the loosing end of the custody battle:

"Toshi [Tatiana’s husband] is paying 15,000 yen for each time we see our private marriage counselor. I hate the bitch (a woman in her fifties)! She keeps telling me that I will never succeed getting custody of Natalia [Tatiana’s daughter]. She says I have no chance because I don’t make enough money, and have no family in Japan to support me. He has it all: good salary, mother with sister to help him raising Natalia, and a big house. I will never go to this counselor again!"

Ania truly believed that she could get divorced soon through the mediation at a family court, "chotei rikon". The commissioners were convinced that her marriage was over, and that the longer the ill situation prolonged ("living with the enemy") the more the children would suffer. However, they could not do anything about it, or they simply did not want to.

"The commissioners suggested that I wouldn’t have any problems obtaining the custody. My children are still very small, and Japanese courts tend to favor mothers in such cases, unless a mother is an alcoholic, drug addict, or mentally ill. Yet, the biggest problem might be getting divorce itself. According to Japanese family law, I did not have a good reason for divorce. My husband was neither an alcoholic, nor a gambler, didn’t beat me, and didn’t have a lover. Unfortunately… His faults were just not on the list. Or our faults; it didn’t count that we were living like a cat with a dog, and our children had to look at."

After two years of fruitless mediation, Ania was left with an overwhelming impression that she had wasted her time; Japanese family courts were powerless, and that the most efficient way to avoid a divorce by her husband was simply to reject it. The best solution the commissioners offered her; of course in private and in secret, was to…run away and abduct her children!

"Hideya [Ania’s husband] accused them [the commissioners], especially the lady of being on my side. He said they were not competent, and that he would sue them. He wanted to sue the court! Can you believe it? Well, I know he was kind of right and they were on my side indeed. I developed a very close and confidential relationship with my commissioners, and one day they even advised me to escape from the country. The man said to me: listen, Ania, you have made it to a very faraway country- Japan, haven’t you? You are such an able woman so why don’t you find yourself another "faraway" country and disappear for ever?"

The official advice the commissioners gave Ania was to withdraw the trial at a family court, and sue her husband in a district court. They never mentioned to her the legal opportunity of a "shimpan rikon", when if divorce cannot be established by mediation it can be completed by a decision of the family court. Maybe they just chose to get rid of her? Ania had decided to keep their private advice for the future, believing that she could always escape if she had no other options, and she made up her mind to go for the ’real’ court and "saiban rikon". She explained her motives to me as follows:

"I just asked myself one question: do I want to be a refugee till the end of my life? No! - My answer came straight away. I don’t wanna live like one of those German Nazis hiding somewhere in South America. After all, I am not a criminal!"

Saiban Rikon: the Real Court or "Matrix"?

In Japan, where in the majority of cases, women decide to make an application to the district court for a divorce decision, it usually means that they could neither achieve a mutual agreement with their spouses (kyogi rikon), nor the family court managed to establish divorce through mediation. Their last option remains a divorce by judgment of a district court. Such cases constitute 8% of all divorce cases in Japan.

However, people who have come such a long way, spending a few years on the average moving from one step of Japanese family jurisdiction to another one, and made it up to a district court normally do not live together anymore. In the most common scenario, Japanese women, unilaterally remove the child from home they have grown up in, relocate geographically, and terminate the contact with fathers, or even abduct them. Family courts seem to simply rationalize and ratify established status quo, and usually there is nothing the court can do to reverse the situation. Police have no legal right to intervene. Until not so long ago, Japanese police would not even intervene in cases when domestic violence was reported due to the common belief that domestic meant private; and no one from the outside had a right to interfere. I wonder how much it is related to the paradigm of uchi and soto.

How does this situation look in case of my informants? Maria did not even bother to ask her husband’s permission when she declared she was moving out with their children, and gave him no chance to object even though she did everything openly. My three other informants were less confident, and asked their husbands to let them move out with their children for whom they were the primary care givers. They were truly concerned that it was very harmful for their children to whiteness the holocaust of their marital conflicts. Nevertheless, the husbands never agreed.

"On Saturday afternoon, when I came back home after I booked myself a new apartment- I was going to be divorced on Monday- Hideya said it was too late. You lost your chance! - He yelled. I will never give you the kids! You can move out alone if you wish." - said Ania whose husband played with her feelings for a while letting her believe that he would let her move out.

While Tatiana still believes that one day her husband will understand that giving her permission to move out with their daughter is the only viable option in their current situation, Ania had no more illusions. She followed the ‘tradition’ of Japanese women going through divorce, and just left without a word.

"I hired a moving company in secret. They were so professional! Six men got into our house, and in two hours I was packed. Obviously I could not prepare anything in advance. Those guys only whispered doing their job, and they asked me to turn on the TV and the washing machine while they were making noise carrying the furniture and uninstalling two of our five air conditioners. I wish I could see Hideya’s face when he returned from work that evening. He came home, but there was no home anymore."

According to Ania’s lawyer the judge13 said that she should not think she would get custody only because she moved out with the children. Yet, Ania is concerned that the court would not take the children away from her regarding the fact that her children have already got accustomed to a new environment. And now that they do not have to whiteness their parents’ fights, they seem quite happy. Ania is determined not to handle her kids to her husband, no matter in what circumstances. Even if it meant she would have to ignore the results of court’s decision. I a not sure, but she might be able to get away with it. Collin Jones sees Japanese courts powerless due to its bureaucracy which is doing what is necessary to preserve its stature with limited tools for doing so. He says that "once a party realizes that submitting to the authority of family courts is largely optional, the situation can become like the movie The Matrix, when the main character discovers he has been living inside an artificial, computer-generated world. The realization allows him to go back into that world yet ignore most of its rules, which gives him seemingly superhuman powers. Seizing your child by force and creating a new status quo becomes an effective means of gaining sole custody, even if you are a father, and particularly if you do it before divorce."14

Time will show, in Ania’s case, if creating a new status quo is an effective means of gaining sole custody indeed. If it works "even if you are a father", who knows, it might work as well if one is ‘even a foreign woman’.

Conclusion

Japanese courts have created a preference for maternal parents which results in mothers being awarded sole custody in the vast majority of litigated divorces. There may be nothing uniquely Japanese about such a result when compared to Western jurisdictions, tough the absence of joint custody in Japan makes custody battles much more of a zero-sum proposition that they are in many Western countries.

My main objective in this mini research project was to show the weakness of Japanese courts and family law, or as some say, even the lack of family law. Enforceability or the lack thereof, is the key to understanding Japanese family law, and probably many other aspects of the Japanese legal system. The situation becomes even more complex if one of divorcing spouses is a foreigner since race bias is added to gender bias. My research question was what happens to foreign mothers involved in divorce and child custody negotiation. As a result, I do not actually see anything unique in described procedures because women involved were foreigners. It might be due to the fact that three of my informants, while having not succeeded divorcing by a mutual agreement, are still in the process of divorce by other means: divorce by mediation and divorce by judgment of a district court. Thus it is impossible to judge whether Japanese courts discriminate against foreign women until the courts take a final decision.

Meanwhile, I believe that in my research I was able to reveal some other findings. The case of Ania shows inability of Japanese mediation system to resolve a marital conflict. The best what the family court could offer her, although unofficially and in confidence, was the solution by abducting her children; in other words practicing a kind of mob law. All what she had learnt through two years of having entrusted her problem to a family court was founding out that she had to take her fate in her own hands, and create her status quo. If the situation was to resemble "The Matrix" indeed, Japanese family law turns out to be completely powerless and useless. Nevertheless, through this four -case study, I am concerned that the real weakness and failure of Japanese family law appears to be the lack of joint custody. Practicing sole custody inevitably becomes a hotbed of conflicts. I view all my informants and their husbands, in spite of their own faults and motives for divorce, as victims of Japanese family law and the practice of sole custody. Most of their traumatic experiences could have been avoided if there only were the option of joint custody in Japan.

It also seems that as a secondary objective my research attempts to examine the reasons of my informants failed marriages in relation to the fact of their husbands being Japanese. I think that the main contradiction might be a different concept of marriage in Japan and in the West. Marriage in Japan exists as a kind of social agreement, while in the West marriage is rather believed to be based on personal relationship and love. My informants thought their husbands were ungrateful, passive, and indifferent. All these four women were demanding from their husbands things that those men had no idea about. They grew up in Japanese culture, and it is not fair to blame them for something that they are completely not aware of. Maybe Rudyard Kipling was right in his famous saying that "West and East will never meet"?

To sum up, through four documented stories I have reasons to believe that there is a certain trend in case of interracial marriages in Japan, and that this trend is consistent. Am I right or am I wrong? And if I am wrong, what is the proof? Obviously more research needs to be done on this matter.
  • 1 Jeremy D. Morley is an American attorney, the chief executor of The International Family Law Office in New York.
  • 2 Harald Fuess, Divorce in Japan, 2004
  • 3 Discrimination in Japan Concerning Children’s Rights, Children’s Right Network (CRN). http://www.crnjapan.com
  • 4 Family Law in Japan. http://en.wikipedia.org
  • 5 Evelyn Iritani, Lost in a Loophole: Foreigners Who Are on the Losing End of a Custody Battle in Japan don’t Have Much Recourse, Los Angeles Times, 19 Sep 1996
  • 6 Suvendrini Kakuchi. Women: Foreign Spouses in Japan Seek Easier Child Custody Laws, The International Family Law Office of Jeremy D. Morley
  • 7 Collin P.A. Jones. Marbury v.Madison and The Matrix: What Child Custody and Visitation in Japan Show us about the Japanese Court System, 2005
  • 8 Collin P.A. Jones. Marbury v.Madison and The Matrix: What Child Custody and Visitation in Japan Show us about the Japanese Court System, 2005
  • 9 Yukiko Yamaguchi, Kodomo no Jinken wo Mamoru Chishiki to Q&A, 145(2004)
  • 10 Ross D. Parke and Armin Brott, Throwaways Dads, p.169, Houghton Mifflin Company, 1999
  • 11 The comment which Prof. G. Roberts has made on my final paper for The World of Gender course: Gender Bias in the Family Courts. 2006, February
  • 12 A Law Reform Commission Consultation Paper on Family Courts: Japan. http://www.lawreform.ie
  • 13 Ania and her husband were asked only once to participate in there matter of divorce despite the fact that the court has already met their lawyers eight times in the past one year.
  • 14 Collin P.A. Jones. Marbury v.Madison and The Matrix: What Child Custody and Visitation in Japan Show us about the Japanese Court System,2005

1 comment

  • Adrian Knight

    Hello,
    Thank you for such a well researched article. Unfortunately I am currently being cut off from my children by my Japanese wife, and am now living in Australia. I am an Australian.

    I am wondering what legal avenues I can pursue, but after reading articles like this one I am coming to the conclusion that it is a useless fight. I wonder if you know anyone who I could engage to seek advice?

    Thanks for your research, and for considering my message. Adrian.

    Adrian Knight Comment Link

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