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Japan to ax Civil Code's 300-day rule on ex-husbands' legal paternity after divorce

The sign for the Ministry of Justice is seen in Tokyo. (Mainichi/Kazuo Motohashi)

TOKYO -- A subcommittee of the Justice Ministry's Legislative Council approved a proposal outline to axe a Japanese Civil Code provision making a woman's ex-husband the legal father of a child born to her within 300 days of their divorce even if she has remarried.

    The legal revision proposal outline finalized on Feb. 1 would make the new spouse the legal father, regardless of how long it had been since the end of the woman's previous marriage.

    There are no government-issued birth certificates in Japan. Instead, when a child is born, a birth notification is submitted to the local municipal office to add the baby to the parents' family register.

    However, for reasons including domestic abuse, remarriage or conceiving with another partner, some recently divorced women do not want their ex-husbands recognized as the legal fathers of their newborns, and do not submit the birth notification. As of January 2022, the Justice Ministry was aware of 825 individuals with no family register -- 591 of them apparently because the 300-day paternity law had made their mothers reluctant to submit a birth notification.

    The subcommittee's move is intended to reduce the number of children who thus end up without a family register, which is required to obtain a wide array of public and private services in Japan. The government aims to submit revisions to the National Diet at an early date, after they are approved by the full Legislative Council and reported to the justice minister.

    The Civil Code currently states that a baby conceived during marriage is the legal child of that couple. Also, a baby born "within 200 days of marriage" and "within 300 days of divorce" is legally the child of that husband or ex-husband. And so, if a woman becomes pregnant by a man not her husband, even if she then divorces the husband, her ex-spouse becomes the child's legal father if the baby is born within 300 days of the breakup.

    Under the revision proposals, if a woman marries multiple times during her pregnancy, the man she was most recently married to when she gives birth will be recognized as the father. That means that if a woman remarries within 300 days of getting a divorce, her new spouse will have legal paternity.

    Under current law, there is a 100-day ban on getting remarried after a divorce, but the rule only applies to women. It is in place because the legal paternity claims of the ex- and the new husband would overlap for 100 days under the Civil Code as it now stands. The revision outline would do away with this rule, as it is made moot by the subcommittee's other proposals.

    These also include a provision stating, "If a woman becomes pregnant before marriage, and the child is born after her marriage has been formalized, the child shall be recognized as the husband's." Under the Civil Code now, no presumptions are made for any child born within 200 days of marriage, and the child is labelled simply as "legitimate."

    The subcommittee has furthermore recommended scrapping the rule that only a husband or ex-husband may file a claim to deny paternity, within one year of learning of a child's birth. The child's mother or the child themselves will be able to file paternity denial claims if the recommended revisions are passed.

    Apart from the paternity issue, the subcommittee proposed deleting the term "disciplinary rights" -- the right of legal guardians to discipline their children -- from the Civil Code as it has been used to justify abuse. The body recommended replacing it with a provision demanding parental authority be exercised with respect for a child's individual character.

    (Japanese original by Masakatsu Yamamoto, Tokyo City News Department)

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