Constitutional anachronism
(From The Japan Times March 4 issue)

民法の時代遅れの規定を改正せよ

    On one hand, this article helps women whose former husbands refuse to acknowledge actual paternity or refuse to pay child support. On the other hand, the clause causes distress for remarried women — and their families — who have given birth to children fathered by their current husbands within 300 days of their divorce.

    Given the relatively high divorce rate among today's Japanese and the fact that some babies are delivered prematurely — sometimes deliberately through Caesarean section for health reasons — the government should consider revising the article.

    Section 1 of Article 772 says if a married woman conceives a child during her marriage, the child must be regarded as having been fathered by the woman's husband. This stipulation covers a normal marriage situation.

    Section 2 consists of stipulations designed to avoid instability in father-child relations in the family register under special circumstances. It first states that a child born to a married woman on or after the 200th day of her marriage must be regarded as fathered by her husband. This stipulation takes into account a situation such as a long separation of a couple who are married on paper.

    The same section also says that a child born to a woman within 300 days of her divorce must be regarded as having been conceived in her previous marriage.

    This provision can cause trouble for a lot of women and their children, for example, if a woman had difficulty in getting her former husband to agree to a divorce and, in the meantime, formed a relationship with another man and became pregnant by him.

    If a woman gives birth to a baby fathered by her new husband within 300 days of her divorce and wants to make clear in the family registry that the child is not a child of her former husband, she must go through a complicated court procedure. She must have her former husband agree to file a statement denying a blood relationship between him and the child. Or she must formally request that the court confirm that the child is not related to her former husband.

    Even in the latter case, the former husband's cooperation is essential: He must testify before the court that he is not the father of the child, or submit to a DNA test. The former husband may be difficult to locate or may not cooperate.

    When the procedure for clarifying that the child is not a child of the former husband is completed, another procedure is needed to register the child as a child of the current husband. And even if the latter procedure is completed, the information concerning the court procedure to confirm that a blood relationship does not exist between the child and the former husband (including the name of the former husband), in principle, remains on the new family register.

    If women are unable, or do not want, to contact their former husbands to complete the necessary court procedure, they may choose not to register the children. Children without a family registry can get a certificate of residence and go to school, but they cannot join public health insurance programs or get passports.

    In one reported case, a city office inadvertently accepted the registration a child born within 300 days of the mother's divorce, listing the current husband as the father. When the city office noticed the mistake later, it asked that a legal document be submitted proving that the current husband fathered the child. As a legal recourse, the child had to file a lawsuit against the mother's current husband, the real father, demanding that he acknowledge the child as his own.

    It is clear that Section 2 of Article 772 is imposing a severe burden on many remarried women as well as their new husbands and children.

    At the very least, the government should take measures to allow a woman's new husband to be registered as the father of a child born within 300 days of the woman's divorce if there is evidence to show that the pregnancy occurred after the divorce — such as records or documents signed by physicians.

    The Civil Code first went into effect more than 100 years ago when Japanese society was based on a semi-feudal and patriarchal family system. Many provisions are remnants of those years.

    Short of a drastic revision, the government should carry out the most necessary piecemeal revisions immediately.

The Japan Times Weekly: March 10, 2007
(C) All rights reserved

    1898年に制定された民法の772条は、「離婚後300日以内に誕生した子は前夫の子とする」と規定している。この規定は、前夫が実父であることを認めない、養育費の支払いを拒否するなどの場合に再婚女性を救済することを目的とするものだが、再婚後300日以内に現在の夫の子を産んだ女性やその家族にとって深刻な問題になる。最近は離婚率も高くなり、帝王切開などによる早産も増えている現状で、政府はこの規定の改正を検討すべきだ。

    772条の第1項は、「妻が婚姻中に懐胎した子は、夫の子と推定する」と規定している。通常の婚姻に適用される規定だ。第2項は「婚姻成立の日から200日経過した後、または婚姻解消の日から300日以内に生まれた子は、婚姻中に懐胎したものと推定する」と規定している。特別な状況での戸籍における父子関係の不確定を避けるためだ。

    この規定は、たとえば、夫が離婚に同意せず、女性がその間に別の男性の子を懐胎した場合に問題になる。離婚後300日以内に、新しい夫の子を産み、前夫に無関係の子として戸籍登録するには、前夫の証言、DNA鑑定などの煩雑な法的手続きが必要になる。その手続きが完了しても、今の夫の子として戸籍登録するには、別の手続きが必要だ。

    前夫に連絡が取れない場合、取りたくない場合には、子が無戸籍となる可能性もある。その場合、住民登録をして学校に入学はできるが、国民健康保険の加入、旅券の取得はできない。

    政府は少なくとも、離婚後に懐胎したという証拠があれば、再婚女性の夫を離婚後300日以内に生まれた子の父親としての戸籍登録を可能にする措置を取るべきだ。

    民法の抜本的改正が不可能でも、政府は最も必要な部分改正をただちに実行すべきだ。