A research survey report on every country's post-divorce custody system

This is a provisional translation of page 3 of “A research survey report on every country’s post-divorce custody system (Comparative Legal Research Center Foundation, December 19th, 2014, Tomoko Inagaki and 11 others)”.


Ryoko Yamaguchi (Professor, Kyoto Sangyo University)

 Revision of family law is underway in many countries in Europe, the United States, and even in Asia. The world is progressing greatly due to the rapid development of economic exchange and information transmission, and the family is no exception to this change. However, when we look at the relationship between husband and wife and parent and child, the changes are not sudden, but originate from the trend of bankruptcy-based divorce laws that started in various countries in the 1960s. As bankruptcy divorce laws made it easier for the courts to grant divorces, divorces increased in all countries, and the question of how to legally consider the care and upbringing of minor children and the rights and obligations of parents to their children became the subject of study in all countries. Gradually, the development of visitation, the sharing of the rights and obligations of child custody, and the joint exercise of child rearing were established as legal systems.

 Looking at Japan, the ratio of divorces to marriages has risen significantly, although it cannot be directly asserted that this is due to the influence of the Western bankruptcy-based divorce laws, since Japan is a country that allows negotiated divorce. If we calculate the number of marriages and the number of divorces in a given year according to the Current Population Survey, the divorce rate in 1980 was less than 20%, but in 2012 it exceeded 35%, indicating that a large number of unmarried children are facing parental divorce every year. The existence of domestic violence and the high poverty rate of single-parent households are becoming apparent in divorce, and the unmarried rate is increasing as the age of first marriage rises for both men and women, accelerating the aging of society with fewer children. On the other hand, the number of children born through assisted reproduction is steadily increasing. The cohabitation and child rearing of LGBT people, who are considered to be a sexual minority consciously placed outside the law as a minority group, also certainly exist in Japan. Furthermore, there have been a number of incidents in which children have been victimized, and the number of cases of abuse and neglect by parents and relatives has been increasing every year (66,807 cases in 2014), making it clear that the situation surrounding parents, children, and families is changing dramatically.

 In contrast, the kinship and inheritance chapter of the Japanese Civil Code has basically not undergone significant changes since its postwar revision. In 2012, Article 766 of the Civil Code was partially amended to make visitation and child support part of the agreement. The current situation is that 23.4% of single-mother families have visitation agreements, 27.7% continue to have visitation agreements, 37.7% have child support agreements, and 19.7% continue to receive child support.1 These figures indicate that children are left behind when their parents divorce.

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