The proposal recommended the removal of Article 822, which gave custodial parents ‘the right to discipline children’. It also reviewed Article 772, under which a child born within 300 days of divorce was automatically recognised as a child of the former spouse and a child born within 200 days of remarriage would be considered a child of the previous spouse.
In 2014, the Supreme Court of Japan supported Article 772’s presumption of legitimacy in rejecting a father’s appeal to annul legal paternity because a biological relationship with his child was denied by a DNA test. The determination of legitimacy by scientific methods is controversial, but Japan’s Supreme Court still emphasises a 19th century law rather than scientific DNA testing. Although the Supreme Court stated its concern about the impact of sudden changes in the guardianship of a legitimate father, it acknowledged that there is room to consider whether Article 772 is relevant to the family today.
Most articles of the current Japanese Civil Code are rooted in the 1898 Meiji Civil Code. This was Japan’s first modern Civil Code, reflecting institutionalised familism as an essential structure of its nation-building. The Meiji Civil Code had a primogenital household system that gave exclusive priority to the father and firstborn son as the stems of the family, and outlined a national family-based registration system (koseki). Later, Japan’s post-war constitution outlawed gender-based discrimination. This resulted in the repeal of discriminatory household system codes, but the koseki system remained the national registration system.
Due to this partial reform of the Civil Code, the ideological presumptions of families have been questioned and contested in the current social context, as well as the perceptions of gender, parenthood and children. Many discriminatory legal codes are a legacy of the early primogenital system and have recently been challenged. These contested claims are an example of the Japanese legal system’s inadequacy in preventing gender violence and gender inequity.
In 2013, Article 900 of the Civil Code, which was discriminatory against illegitimate children regarding inheritance, was amended. In 2021, lawsuits were filed against the state protesting a family law which did not allow married couples to have separate surnames after marriage. This was deemed unconstitutional, which conflicted with the koseki system that endorses all family members under a single household name. Other ongoing lawsuits in various parts of the country claim that the inability of same-sex couples to marry also violates the constitution.
In 2012, Article 820 of the Civil Code was amended to recognise the ‘interests of the child’ as the highest priority in child custody decisions. While the amendment emphasised shared parenting after divorce, the Civil Code still recognises exclusive solo custody. The code was originally designed to recognise the child as a paternal property, but mothers are more frequently granted custody after divorce in post-war Japan. Consequently, the Legislative Council is debating a reform of exclusively solo custody to (selective) joint custody after divorce. Many parental activists support joint custody, while opponents insist that it would harm victims of family violence.
These changes in the legal code may provide alternative views on social security reform. The Civil Code’s designated family structure informed the development of relevant social security policy for families in post-war Japan, including several deductions under tax law. Recent surveys show that families that are not considered ‘normative’ are quite economically vulnerable. The challenges to the normative family model embedded in present legal codes may lead to new national debates about more inclusive family policies for different households, such as single-parent, unmarried, cross-cultural, mixed, same-sex parent and gender-diverse families.
Takeshi Hamano is Professor of Sociology at the University of Kitakyushu.