ALIN Legislative News
From Center for Asian Legal Exchange of Nagoya University
Japan: Recent
legal news and development
On May 17, 2024 the Diet passed a bill, which will come into force in
2026, amending the Civil Code to allow for joint custody of children after
divorce. Japan has been the only G7 country which maintained a system of sole
custody being awarded to one parent on divorce and thus the new Act brings
Japan’s divorce system into closer alignment with other major countries.
The question of whether to adopt a joint custody system in Japan has been
the subject of a lengthy public, legal and scholarly debate in the country. On
the one hand proponents of the sole custody system have argued that it is
necessary in order to protect spouses and their children from abusive former
partners and that a system that allows joint custody (particularly in cases
where one party does not consent) would force them to maintain potentially
harmful relationships with such partners. On the other hand, proponents of
joint custody have argued that the sole custody system has the effect of
unfairly cutting even non-abusive parents out of their children’s lives (in
part also a result of weak enforcement of visitation rights). The sole custody
system had also contributed to conflict of law issues between Japan and
countries with joint custody systems in cases involving international divorces.
A number of high profile cases have involved Japanese nationals with children
subject to joint custody orders by courts in their country of residence taking
them to Japan and their former spouses encountering extreme difficulty in
enforcing such orders. Japan’s accession to the Hague Convention on the Civil
Aspects of International Child Abduction in 2014 and subsequent reforms had
however gone some way towards alleviating the latter concern prior to the new
amendment.
Under the Civil Code divorces may proceed either by mutual agreement of
the parties or in contested cases through judicial divorce (in 2020 roughly 88%
of cases proceeded via the former route). The new amendment revises Article 819
of the Civil Code to allow for joint custody in both cases. Whereas previously
the Code required either the divorcing parties to agree on which would have
custody (Art. 819(1)) or for the Court in judicial divorces to make that
determination (819(2)) the new rules state that in both such cases either one
or both parents shall be determined to have custody.
When a court is required to make a determination of whether to order either
sole or joint custody the amended rules (819(7)) provides a list of factors
that the Court must consider. These include the relationship between the
parents and the child, the relationship of the parents between themselves, and
any other circumstances relevant to the best interests of the child. It further
stipulates that sole custody must be ordered where there is a risk that one
parent may inflict mental or physical harm to the child or where it is
recognized that it will be difficult for the parents to exercise joint custody
either due to the risk that one parent would suffer physical violence or mental
harm at the hands of the other or due to other factors related to the failure
of the parties to reach a mutual agreement. The amendment also further clarifies
the rules regarding changes to custodial arrangements, with the new Article
819(8) providing a list of factors (including changes of circumstances and the
presence or absence of violence) the court must consider in determining whether
a change in custodial parent that had been mutually agreed upon would be in the
best interests of the child.
In addition, under 824-2 of the revised Code provides exceptions to the
general rule that parental authority is to be exercised jointly that, though
they apply generally, may be particularly relevant in cases of divorced parents
who are living separately. Where there are urgent circumstances related to the
best interests of the child (824-2(1)(3)) or in relation to everyday acts
concerned with education or custody (824-2(2) one parent may exercise parental
authority unilaterally. In other circumstances where the parents cannot agree
on the exercise of parental authority, one may petition the Court for an order
granting them sole power to exercise it in relation to the matter at issue
(824-2(3)).
The amendments represent a major departure from Japan’s longstanding
system of child custody and both proponents and critics, as well as
practitioners, are waiting to see how the courts will implement them when they
come into effect in 2026.