Basic Principles of Japanese Family Law
Abstract
The house system (ie) defined Japanese family law until the end of World War II. The head of the family was not only the decision maker but also the lowest level of the Japanese administration. In 1947 the new constitution came into effect and the law no longer privileged the head of the family.
Marriage (kon’in) is the first focus of the article on the basic principles of Japanese family law. The principle of compulsory civil marriage is the basis for the regulation of marriage. The Japanese Civil Code stipulates certain bars to marriage that are roughly comparable to German law. Furthermore, the issues of family name, the duty of mutual support and cooperation and matrimonial property are discussed. The statutory matrimonial property regime is the separation of property.
No explicit legal requirements are found in the Civil Code for the right of engagement (kon’yaku). Nevertheless, according to legal practice some important principles for engagement and its dissolution have been developed. The Civil Code also does not contain any express regulations relating to de facto marriage (nai’en). Many provisions on legal marriage can be applied analogously to de facto marriage. However, several differences still remain between both institutions.
The dissolution of marriage (rikon) can generally be accomplished in four different ways. In the majority of all cases, marriage is dissolved by an agreement based on mutual consent without any court intervention. The central provision on judicial divorce is Article 770 Civil Code, which enumerates five grounds for divorce.
The main purpose of the provision on parent-child relationship is to promote the best interests of the child. Legitimate and illegitimate children are treated almost equally, though some important differences still remain in the law of succession.
As far as adoption is concerned, the Japanese legal system makes a distinction between adoption based on agreement (futsû yôshi) and special adoption based on the decision of a public authority (tokubetsu yôshi). Of great practical relevance is the adoption of adults, which amounts to more than half of all adoption cases.
