Outline of the Revision of Family Law System in Japan.
Summary
This document provides an overview of the revision of the family law system. It includes basic regulations concerning parental relationships, clarifying the responsibilities, rights, and obligations of parents. It also contains provisions regarding custody and guardianship. Joint custody is generally favored, but in specific cases, one parent may exercise custody. In case of disputes over custody, the family court has the authority to make decisions. The document also outlines provisions for determining custody in cases of divorce or other circumstances, taking into consideration the best interests of the child, the relationship between parents and the child, and other relevant factors. Additionally, it includes provisions relating to child support and addresses matters concerning the priority of child support payments.
Basic Regulations Concerning Parental Relationships
1. Clarification of the Responsibilities of Parents (not limited to custodians)
In order to clarify the responsibilities, rights, and obligations of parents, regardless of custodial rights, the following regulations shall be established:
a. Parents must respect the personality of their child and provide care for the child's sound development, taking into consideration the child's age and level of development. They must also provide support to ensure that the child can maintain a standard of living equal to their own.
b. Regardless of the existence of a marital relationship, parents must respect each other's personalities and cooperate for the exercise of rights and fulfillment of obligations concerning the child, for the benefit of the child.
2. Clarification of the Nature of Custody
Amend Article 818, Paragraph 1 of the Civil Code as follows:
Custody must be exercised for the benefit of the child who has not reached the age of majority. (Note: Necessary provisions will also be made regarding Article 833 of the Civil Code.)
Regulations Concerning Custody and Guardianship
1. Establishment of Regulations for the Exercise of Custody
In order to clarify the regulations stipulated in Article 818, Paragraph 3 of the Civil Code, the following regulations, (1) and (2), shall be established. Additionally, a new regulation, (3), shall be established as a mechanism to address parental disputes regarding the exercise of custody.
a. Custody shall be jointly exercised by both parents. However, one parent may exercise custody in the following cases:
i. When one parent is designated as the custodian.
ii. When the other parent is unable to exercise custody.
iii. When there are urgent circumstances for the benefit of the child.
b. Even when both parents are custodians, they may individually exercise custody for daily acts related to guardianship and education, regardless of the provisions in (1) above.
c. In cases where there is a lack of agreement between parents regarding the exercise of custody for specific matters (excluding matters that can be individually exercised by one parent according to (1) or (2) above), and when it is deemed necessary for the benefit of the child, the family court may, upon the request of either the father or the mother, determine that one parent may exercise custody for the specific matter. (Note: In establishing procedures for (3) above, amendments will be made to the Domestic Relations Case Procedure Act to address international jurisdiction (referring to Article 3-8 of the same Act), jurisdiction (referring to Article 167 of the same Act), legal capacity to act (referring to Article 168 of the same Act), hearing of statements (referring to Article 169 of the same Act), delivery orders, etc. (referring to Article 171 of the same Act), immediate appeals (referring to Article 172 of the same Act), and interim measures (referring to Article 175 of the same Act). Furthermore, amendments will be made to the Civil Procedure Code to allow the court, upon request, to issue ancillary orders (referring to Article 32 of the same Code) designating the person who will exercise custody individually for matters that are necessary to exercise custody due to the annulment of marriage or the filing of a divorce lawsuit, limited to matters related to custody.)
Note: The translation provided is a rough translation and may require further review by a legal expert for accuracy and clarity.
2. Determination of Custodianship After Divorce or Other Circumstances
(1) Amend Article 819 of the Civil Code, which stipulates that one parent must be designated as the custodian in cases of divorce, and propose the following regulations:
a. In cases where parents agree to a divorce, they shall determine one or both parents as custodians through their agreement.
b. In cases of divorce through court proceedings, the court shall determine one or both parents as custodians.
c. In cases where parents’ divorce before the birth of the child, the mother shall have custody. However, after the birth of the child, both parents or the father may be designated as the custodian through their agreement.
d. In cases where the father has acknowledged paternity, the mother shall have custody. However, both parents or the father may be designated as the custodian through their agreement if the circumstances allow.
e. In cases where the agreements mentioned above (a, c, or d) cannot be reached or when it is not possible to engage in discussions, the family court shall conduct a substitute judgment upon the request of either the father or the mother.
f. The family court may change the custodian upon the request of the child or their relatives when it is deemed necessary for the best interests of the child.
g. When making a decision on whether to determine both parents or one parent as the custodian in the aforementioned cases (b, e, or f), the family court must consider the best interests of the child, the relationship between the parents and the child, the relationship between the father and the mother, and any other relevant circumstances. In cases where it is recognized that designating both parents as custodians would harm the child's interests, one parent must be designated as the custodian.
- 1. When there is a risk that the father or mother may cause harm to the physical or mental well-being of the child.
- 2. When it is determined that it is difficult for the parents to jointly exercise custody considering the risk of violence or other harmful effects on the physical or mental well-being of one parent caused by the other parent, the reasons why agreements (a, c, or d) cannot be reached, or other circumstances.
(2) Amend Article 765, Paragraph 1 of the Civil Code, which stipulates that the acceptance of a divorce application cannot occur without designating one parent as the custodian, as follows: A divorce application cannot be accepted in cases involving minor children unless one of the following conditions is met:
- 1. The designation of a custodian has been made.
- 2. A request for the designation of a custodian has been submitted for family court judgment or family mediation proceedings (Note: Regulations will be put in place to require the court's permission for withdrawal of the request for custodian designation and to address situations where a request for custodian designation has been made but an agreement for divorce cannot be reached).
The provisions regarding matters related to the custody of children after divorce are as follows:
1. Regarding the designation of both parents as custodians after divorce, it is not mandatory to establish a provision specifying that one parent should be the custodian of the child. Instead, the example of "allocation of custody of the child" will be added to the list of "necessary matters concerning the custody of the child" as prescribed in Article 766, Paragraph 1 of the Civil Code. (Note: Amendments will be made to the Domestic Relations Case Procedure Act to establish provisions regarding the allocation of custody of the child.)
2. For cases where a specific person is designated as the custodian of the child, the following provisions regarding rights and obligations shall be established:
a. The person designated as the custodian of the child, as determined by Article 766 of the Civil Code (including cases where Article 749, Article 771, and Article 788 of the same Code are applied mutatis mutandis), shall have the same rights and obligations as the person exercising parental authority as specified in Article 820 to Article 823 of the same Code regarding the matters specified therein. In this case, the person designated as the custodian of the child may individually exercise custody and education of the child, designate or change the child's residence, and grant, cancel, or restrict permission for commercial activities.
b. In the case mentioned in (a) above, the person exercising parental authority (excluding the person designated as the custodian of the child) shall not obstruct the person designated as the custodian of the child from performing acts specified in the latter part of (a) above. (Note: Amendments will be made to the Domestic Relations Case Procedure Act to establish provisions regarding the allocation of custody of the child, including provisions concerning delivery orders, etc. (referring to Article 154 of the same Act).)
Provisions on Child Support and Related Matters
1. Improvement of the Effectiveness of Child Support Claims (Granting of Priority)
The provisions of Article 306 of the Civil Code shall be revised to grant general priority to child support claims and establish their ranking immediately after employment-related priority (as referred to in Article 2 of the same article). The following provisions shall be provided:
The priority for the expenses of child custody shall exist for an appropriate amount (calculated based on the standard expenses required for the child's custody, taking into account the number of children who should receive support through the periodic payment obligations with specified due dates related to the obligations listed below) among the periodic payments in each period of the periodic fixed-term debts that have specified due dates (Note).
1. Obligation of cooperation and support between spouses under Article 752 of the Civil Code.
2. Obligation to share the expenses arising from marriage under Article 760 of the Civil Code.
3. Obligations regarding child custody under Article 766 of the Civil Code (including cases where Article 749, Article 771, and Article 788 of the same Code are applied mutatis mutandis) and the provisions on statutory child support mentioned in 2 below.
4. Obligation of support under Article 877 to Article 880 of the Civil Code.
(Note: In granting priority to child support claims, amendments will be made to the Civil Execution Act to allow the creditor who submits a document certifying the possession of such priority to request the acquisition of information regarding the debtor's salary claim (see Article 206 of the Civil Execution Act).)
2. Statutory Child Support
In order to provide a mechanism to address cases where parents’ divorce without making provisions regarding the sharing of expenses required for child custody, the following provisions shall be provided (Note 1, 2).
a) If parents’ divorce without making provisions regarding the sharing of expenses required for child custody, and one of the parents continues to primarily take care of the child from the time of divorce, that parent can request the payment of an amount calculated based on the standard expenses required for the minimum living of the child who should receive support from the parent, taking into account the number of children, and other relevant factors, as child support expenses, from the divorce date until the earlier of the following dates, at the end of each month. However, the other parent can refuse to pay all or part of the amount if they can prove that they lack the ability to pay or that their own livelihood would be significantly compromised by making the payment.
a) The date on which the parents made provisions regarding the sharing of expenses required for child custody through their agreement.
b) The date on which a judgment regarding the sharing of expenses required for child custody is finalized.
c) The date when the child reaches adulthood.
b) If the family court determines or modifies the provisions regarding the sharing of expenses required for child custody, the court may consider the other parent's ability to pay the obligation under the aforementioned provision (a) and order the exemption, partial exemption, deferment of payment, or any other appropriate disposition of the entire or part of the obligation.
(Note 1: The provisions of paragraphs (a) and (b) above shall also apply to other situations where Article 766 of the Civil Code is applied mutatis mutandis (such as annulment of marriage, divorce in court, acknowledgment).)
(Note 2: In amending the Civil Execution Act, when a creditor requests statutory child support, the enforcement court may examine the debtor if deemed necessary before issuing a seizure order as a means of executing the general priority.)
3. Duty to Disclose Information in Legal Proceedings
(1) Establishment of Regulations on Family Court Proceedings
a) Regarding the duty to disclose information in the proceedings of family court judgments, regulations shall be established as follows:
The family court may, upon request or ex officio, order the parties to disclose information regarding their income and assets if it deems it necessary in the following judgment cases:
1. Judgment cases concerning the disposition of cooperation and support between spouses.
2. Judgment cases concerning the sharing of marital expenses.
3. Judgment cases concerning the disposition of child custody (limited to judgment cases concerning the sharing of expenses required for child custody).
4. Judgment cases concerning the determination of the degree or method of support and the modification or revocation of such determination.
b) Provisions shall be established to impose sanctions when a party who has been ordered to disclose information under the provisions of a) above fails to disclose the information without legitimate reasons or provides false information.
c) The regulations in a) and b) above shall also apply, mutatis mutandis, to mediation cases concerning the disposition of cooperation and support between spouses, mediation cases concerning the sharing of marital expenses, mediation cases concerning the disposition of child custody (limited to mediation cases concerning the sharing of expenses required for child custody), mediation cases concerning the determination of the degree or method of support and the modification or revocation of such determination, and mediation cases concerning divorce.
(2) Establishment of Regulations under the Civil Procedure Code
Similar regulations to those in 3(1) a) and b) shall be established for cases where a request for a disposition concerning child custody (limited to a disposition concerning the sharing of expenses required for child custody) is made as an incidental relief in a divorce lawsuit or other relevant lawsuits.
4. Relief for Creditors in Execution Proceedings
Regulations shall be established in the Civil Execution Act as follows:
(1) Execution-Ready Debt Holders with Original Debt Certificates
If a creditor who possesses an execution-ready debt certificate for the claims related to the obligations listed in 1(1) to 1(4) below makes an application under 1(1) or 1(2) listed below, the creditor shall be deemed to have made the application specified in 1(1) or 1(2) simultaneously. However, this provision does not apply if the creditor expresses opposition when making the application under 1(1) or 1(2).
1(1) Application under Article 197, Paragraph 1 of the Civil Execution Act:
An application for an attachment order for the claims disclosed by the debtor in the proceedings related to the application under the said article (limited to claims specified in each item of Article 206, Paragraph 1 of the same Act).
1(2) Application under Article 206, Paragraph 1 of the Civil Execution Act:
An application for an attachment order for the claims specified in each item of the said paragraph, provided that the information is provided by the persons listed in the said items in the proceedings related to the application.
(2) In cases where the application under 1(1) above has been made and the debtor, who has been summoned by the execution court, fails to disclose their assets, unless the creditor has expressed a separate intention, the execution court shall order the city, town, or village (including special wards) where the debtor resides to provide information regarding the matters specified in Article 206, Paragraph 1, Item 1 of the Civil Execution Act (Note).
(3) In the case of 1(1) above, if, despite conducting asset disclosure procedures, the specific claims to be seized in the attachment order under 1(1) or 1(2) cannot be identified, procedures shall be established to terminate the proceedings related to the application for the attachment order.
(4) The regulations from 1 to 3 above shall apply mutatis mutandis to creditors who have submitted documents certifying their general priority over the debtor's assets (limited to those related to the regulations in 1) and have made an application for asset disclosure procedures (Article 197 of the Civil Execution Act) or for obtaining information regarding the debtor's wage claims (Article 206 of the same Act).
(Note) Regulations shall be established regarding the provisions in the main text of 1(2) for trials, the provision of information ordered by such trials, restrictions on accessing records related to the information, and restrictions on the unauthorized use of such information.
4. Regulations on Parent-Child Interaction
1. Parent-Child Interaction during Marriage
Regulations regarding parent-child interaction during marriage of parents shall be established as follows:
(1) In addition to the cases specified in Article 766 of the Civil Code (including cases where it is applied mutatis mutandis to Articles 749, 771, and 788), the necessary matters regarding the interaction between a parent who is living separately from the child and that child shall be determined through the parents' consultation. In this case, the best interests of the child must be given the highest consideration.
(2) If the consultation mentioned in (1) above fails or cannot be conducted, the family court may determine the aforementioned matters upon the request of the father or mother.
(3) The family court may modify the determination based on the provisions of (1) and (2) above upon the request of the father or mother if it deems necessary.
2. Trial Implementation of Parent-Child Interaction in Judicial Proceedings
(1) Establishment of Regulations under the Family Case Procedure Act
Regulations regarding the trial implementation of parent-child interaction in family court proceedings shall be established as follows:
A. The family court, in proceedings related to disposals concerning the custody of a child (excluding disposals concerning the allocation of expenses required for the child's custody), may encourage the parties to engage in trial implementation of parent-child interaction if there are no circumstances that are deemed unsuitable considering the child's physical and mental condition, and if it is necessary for factual investigation.
B. When encouraging the trial implementation mentioned in A above, the family court may determine the method of interaction, the dates and locations of interaction, the presence of family court investigators or other individuals, and impose other appropriate conditions, including prohibiting behaviors that may have a harmful impact on the child's physical and mental well-being.
C. When the trial implementation mentioned in A above is encouraged, the family court may request the parties to provide a report on the results (or an explanation of the reasons if the trial implementation was not conducted).
Note: The regulations from A to C above shall apply mutatis mutandis to mediation proceedings concerning disposals regarding custody of a child (excluding disposals concerning the allocation of expenses required for the child's custody) and mediation proceedings related to divorce.
(2) Establishment of Regulations under the Code of Civil Procedure
In cases where a request for a disposal concerning custody of a child (excluding disposals concerning the allocation of expenses required for the child's custody) is made as an incidental claim in divorce proceedings, etc., regulations similar to those specified in (1) above shall be established.
3. Regulations on Interaction between Non-Parent Third Parties and a Child
Regulations regarding the interaction between non-parent third parties and a child shall be established as follows (Note 1):
(1) The family court may determine or modify the necessary matters regarding the custody of a child after the parents' divorce and specify the implementation of interaction between the child and non-parent relatives if it deems it particularly necessary for the child's best interests.
(2) The following persons may request the family court for a judgment on the determination mentioned in (1) above (Note 2):
A. Parents
B. non-parent relatives of the child (limited to those who have previously had custody of the child, excluding direct line relatives and siblings)
Note 1: The regulations in paragraphs (1) and (2) above shall also be applied mutatis mutandis to other situations where Article 766 of the Civil Code is applied (such as annulment of marriage, divorce in judicial proceedings, acknowledgment of paternity). Furthermore, similar regulations to those in this section shall be established for situations where parents are not married and for cases where parents are living separately during marriage (referenced in Section 4(1) above).
Note 2: Regulations shall be established regarding immediate appeals (referring to Article 156 of the Family Case Procedure Act) and other procedures concerning judgments on custody disposals (limited to disposals concerning interaction between non-parent relatives and the child) and dismissals of such requests.
Section 5: Regulations on Adoption
1. Clarification of Custodians in the Case of Adoption
The regulations of Article 818, Paragraph 2 of the Civil Code shall be amended as follows:
When a child is adopted, the following persons shall be recognized as custodians:
(1) The adoptive parent(s) (limited to the person who became the adoptive parent through the most recent adoption if there have been multiple adoptions concerning the child).
(2) The biological parent(s) of the child who is the spouse of the adoptive parent mentioned in (1) above.
2. Regulations on Proxy for Adoption and Dissolution of Adoption of Minors
(A) Regarding the joint exercise of parental rights by the biological parents based on the proxy for adoption stipulated in Article 797, Paragraph 1 of the Civil Code when the person to be adopted is under the age of 15 and there is no agreement between the parents, regulations shall be established to allow the family court to conduct a trial based on the regulations mentioned in 2(1)(vi) above, only when it is deemed necessary for the best interests of the child.
(B) Even if adoption is deemed particularly necessary for the best interests of the child, if the person to be adopter’s biological parent(s) who should have custody or the person whose parental rights have been suspended in accordance with Article 797, Paragraph 2 of the Civil Code refuses to give consent for adoption, regulations shall be established to allow the family court, upon the request of the legal representative of the person to be adopted, to grant permission in place of such consent (Note).
3. Amendment of Article 811, Paragraph 3 and 4 of the Civil Code
(A) In the case of Article 811, Paragraph 2 of the Civil Code, when the adoptive parents are divorced, they must specify in their agreement both parties or one party who should become the custodian of the child after the dissolution of the adoption.
(B) If the agreement mentioned in (A) above fails or cannot be reached, the family court may conduct a trial in place of the agreement upon the request of the father, mother, or adoptive parent mentioned in (A) above. In this case, the provisions of 2(2)(i) above shall apply mutatis mutandis.
(Note) Regulations shall be established regarding the trial for granting permission in place of consent for adoption, including international jurisdiction, jurisdiction, legal capacity, hearing of statements, notification of the trial, immediate appeal, and other procedural matters.
Section 6: Regulations on Property Division
1. Clarification of Consideration Factors
The regulations of Article 768, Paragraph 3 of the Civil Code shall be amended as follows:
In the case of Article 768, Paragraph 2 of the Civil Code (when the parties request the court to make a disposition in place of negotiation regarding property division), the family court shall consider whether property division should be made, the amount and method of division, taking into account the following factors: the amount of property acquired or maintained by both parties during the marriage and the extent of each party's contribution to its acquisition or maintenance, the duration of the marriage, the standard of living during the marriage, the cooperation and support during the marriage, the age, physical and mental condition, occupation, income, and any other relevant circumstances of each party. In this case, when the extent of each party's contribution to the acquisition or maintenance of property during the marriage is not clearly different, it shall be deemed equal.
2. Time Limit
The time limit for property division shall be amended from 2 years to 5 years as stipulated in the proviso of Article 768, Paragraph 2 of the Civil Code.
3. Duty of Information Disclosure in Judicial Proceedings
(A) Establishment of Regulations under the Family Case Proceedings Act
Regarding the duty of information disclosure in the proceedings of family court judgments, regulations shall be established as follows:
When necessary in the judgment proceedings concerning property division, the family court may, upon request or ex officio, order the parties to disclose information regarding the status of their property.
(i) Sanctions shall be provided for cases where a party ordered to disclose information under the above provision fails to disclose the information without justifiable reasons or provides false information.
(ii) The regulations mentioned in (A) and (i) above shall be applied mutatis mutandis to mediation proceedings concerning property division and mediation proceedings concerning divorce.
(B) Establishment of Regulations under the Code of Civil Procedure
Similar regulations to those in (A) above shall be established for cases where a request for a disposition regarding property division is made as an incidental disposition in a divorce lawsuit, and for cases similar to (A) and (i) above.
Section 7: Miscellaneous
1. Right to Cancel Contracts between Spouses
The provision of Article 754 of the Civil Code, which allows spouses to cancel contracts made between them at any time during the marriage, shall be deleted.
2. Grounds for Divorce in Legal Proceedings
The provision of Article 770, Paragraph 1, Item 4 of the Civil Code, which designates that severe mental illness of a spouse with no prospect of recovery as a ground for divorce in legal proceedings, shall be deleted.
3. Other Necessary Measures
Other necessary measures shall be taken.
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Ancillary resolution
1. When amendments to the Civil Code and other laws are made in accordance with the outline proposal for the revision of family law, it is necessary to ensure that the content is accurately conveyed to the public before its implementation. Based on the discussions in the Family Law Subcommittee of the Legislative Council, the revised content and relevant interpretative matters should be appropriately disseminated.
2. The upbringing of children is carried out from the perspective of securing the best interests of the child, including the appropriate respect for the child's opinions and wishes. In this regard, child upbringing is not solely the responsibility of the parents, but also requires social support for the parents and the child involved in the upbringing. It is important to provide comprehensive support in various fields such as administration and welfare, including legal assistance, to prevent domestic violence (DV) and child abuse, ensure the safety and well-being of children, and prevent children from being disadvantaged by the separation or divorce of their parents.
3. When amendments to the Civil Code and other laws are made in accordance with the outline proposal for the revision of family law, it is expected that family courts will play a larger role than before. In handling cases related to the upbringing of children following the separation or divorce of parents, it is expected that appropriate proceedings will be conducted from the perspective of ensuring the best interests of the child, taking into account the purpose of the revised provisions of the Civil Code and other laws.
4. Regarding the legal system and various forms of support for the upbringing of children after the separation or divorce of parents, ongoing considerations are needed in response to changes in public awareness and perspectives, including issues identified as future study subjects in this subcommittee. Additionally, the implementation status of the revised provisions of the Civil Code and other laws and the progress of the aforementioned various support measures should be communicated to the public in an appropriate manner.
5. In order to achieve the above-mentioned matters, it is requested that relevant government ministries and agencies cooperate sincerely in aiming to secure the best interests of the child.
●Joint custody in Japan（日本における共同親権）