Just 10% of kids of remarriage to be recognized

Soichiro Kuboniwa / Yomiuri Shimbun Staff Writer
The Yomiuri Shimbun
May 2, 2007
Source: http://www.yomiuri.co.jp/dy/national/20070502TDY03003.htm

The Justice Ministry is expected to instruct authorities to recognize children born within 300 days of their mothers' divorce as the legitimate children of the mothers' new husbands, as long as the parents have conception certificates when recording the children's name in family registers to prove the mother became pregnant after divorce.

However, since the measure, expected to be applied after the Golden Week holiday period is over, will not be applicable to women who become pregnant before their divorce, the ruling coalition parties plan to continue discussing the problem.

The problem drew attention this year after divorced women raised questions about the gap between rules on presumed legitimacy and reality, prompting debate on the issue at the Diet.

In one case, a woman conceived with a man she was to marry following her divorce from her estranged husband. But she was forced to go to court to prove the child did not belong to her former husband after she gave birth within 300 days of her divorce in an emergency caesarean section to prevent a miscarriage.

Also, since many mothers do not register the births of their children because they do not want their children recognized as those of their ex-husbands, many children have gone unregistered.

In March, in response to a call by civic organizations, 12 such children in Tokyo and seven prefectures applied simultaneously for passports that required the submission of copies of their family registers.

Under the current system, even if it is clear the ex-husband is not the father, the mother still has to go to family court to overturn the presumed legitimacy of the child. Furthermore, even after courts recognize children as those of current husbands, the phrase "presumed to be the former husband's child" still remains on family registers.

The ministry's notice will recognize children born within 300 days of the mothers' divorce as those of their new spouses or as illegitimate children, provided the mothers can prove they became pregnant after divorce.

As such, the presumed legitimate father of the child can be changed without a trial

The reason the ministry limits the scope of legitimacy to conception after divorce is because Justice Minister Jinen Nagase said fidelity and sexual morals have be to taken into consideration.

However, even the ministry suspects that only 10 percent of such children were conceived after official separation. This means the new policy will not apply in most cases.

At a meeting of policy council chairmen of the Liberal Democratic Party and New Komeito on April 25, the two ruling parties decided to continue discussing the issue as New Komeito House of Representatives member Kaori Maruya said that while the notice is a step in the right direction, its scope is too narrow to be a solution.

However, when the two parties discussed concrete measures, they failed to agree on the issue of conception before divorce.

New Komeito claimed that children conceived before divorce should be recognized as those of new spouses if divorce procedures are delayed by domestic violence. The LDP insisted that since pregnancy before divorce is an exception, the family system would collapse if such pregnancies were condoned.

Initially, the ruling coalition's project team had intended to pass a bill including a special measure to recognize children conceived before divorce as those of the mothers' new husbands if the mothers remarry by the time the children are born and providing DNA tests can prove paternity. But the bill was shelved due to strong LDP opposition.

At the April 25 meeting, the policy council chairmen of the two parties exchanged an agreement document stating the parties would consider passing a law in line with the Civil Code that treats pregnancies before divorces in cases considered inevitable considering social norms.

The two parties will form a new project team to discuss measures to help those in cases in which there were precedents that children had been recognized as those of new husbands, such as a mother who was estranged from her ex-husband for a long time, as well as steps to alleviate trial procedures.

However, there are concerns about the difficulties in determining if such a separation has been long, as family registry official only make a formality of checking documents, As such, it is highly likely the measures to be discussed by the team will be applicable in only a small number of cases, such as being able to use departure and entry records on passports and imprisonment records to prove mothers were not with their former husbands.

New Komeito, claiming that establishing some legal measures are necessary, wants the bill to be passed during the current Diet session before the House of Councillors election this summer. The LDP, however, wants to postpone discussions until after the election, fearing the matter may divide the party.

===

Cases on the rise

The Justice Ministry estimates about 2,800 children are born within 300 days of divorce each year, and about 1,700 each year go through denial confirmations mediated by a family court to state they are not the children of their mothers' former husbands.

The estimates were made based on findings of the first random survey conducted in the beginning of this year on birth registrations and trial procedures.

Of the 6,493 randomly selected birth registrations, 17 cases, or 0.26 percent, were born within 300 days of divorce, meaning there were probably about 2,800 such cases out of the 1.09 million birth registrations in fiscal 2005.

Of the 17 cases, four were registered as the children of the mothers' former husbands. The remaining 13 cases were taken to court, with six being recognized as the children of their mothers' new spouses and seven as illegitimate.

The survey of trials sampled 331 completed cases in 2005 regarding the denial confirmation of parent-child relationship, 234 cases were born within 300 days of divorce, accounting for 70 percent of the cases, which can be translated into about 1,700 of 2,372 finished cases in 2005.

According to judges who sat in the 234 cases in question, only 10 percent of mothers became pregnant after divorce.

Of the mediation procedures, about 80 percent received confirmation from ex-husbands and roughly 30 percent used DNA tests. But a ministry official said the number of children without family registers cannot be projected as there are no records of their registration.

An increase in remarriages is said to have drawn attention to the 300-day issue, a fact that has been highlighted by the Health, Labor and Welfare Ministry's special report on changes in population.

Of the 714,265 marriages in 2005, one or both partners of 180,767 couples, or 25.3 percent, were remarried, a doubling from 12.7 percent in 1975.

Of them, remarried wives came to 7.1 percent, remarried husbands 9.3 percent, and marriages in which both partners were were previously married at 9 percent.

(May. 2, 2007)

Ministry intervenes to help divorcees

The Asahi Shimbun
May 9, 2007
Source: http://www.asahi.com/english/Herald-asahi/TKY200705080387.html

The Justice Ministry has taken a special step to help clear babies born to recently divorced mothers of family registry problems under a century-old legal stipulation.

But the measure, which requires a doctor's certificate verifying the time of conception, is expected to help only some children.

The problem arises from Article 772 of the Civil Law, which "presumes" a baby born within 300 days of a divorce to be the ex-husband's child.

The child must be registered as such, even if there is no biological connection. Many women and their new spouses are calling for a change.

As a ruling coalition panel failed to hammer out a solution, the ministry on Monday notified municipalities of the special measure.

It says the child can be registered as the new husband's offspring if a doctor certifies the baby was conceived after the mother's divorce.

Doctors will use ultrasound to measure the size of the fetus while the pregnancy is between eight weeks and 11 weeks and six days.

Combined with the timing of ovulation and other factors, the doctor can then give a time frame for when conception occurred.

The margin of error on the basis of the fetus measurement is about a week, according to experts.

The Civil Law stipulation is based on a presumed length of pregnancy of 300 days. But in fact, the average length is between 250 and 290 days.

The stipulation of Article 772, which has not changed since the original Civil Law of 1898, often poses a problem if a woman gets pregnant soon after her divorce is legally finalized or if she gives birth prematurely.

The step, to take effect on May 21, will help about 10 percent of some 3,000 babies born within 300 days of a divorce annually.

But it will not make a difference for women who have difficulty winning a divorce.

Some divorces can be slow to wend their way through the courts, even when the couple is living entirely apart. Others cannot get divorced due to domestic violence and other problems.

The coalition panel has studied new legislation that would employ DNA tests and other steps to determine paternity.

But the panel failed to agree on the relief measure as some staunch critics said it would "approve children from extramarital affairs."

(IHT/Asahi: May 9,2007)

Children born within 300 days of divorce get registration break

The Mainichi Shimbun
May 21, 2007
Source: http://mdn.mainichi-msn.co.jp/national/news/20070521p2a00m0na013000c.html

Local governments across the country began on Monday to accept registrations for children that women gave birth to within 300 days of divorce as the children of their new husbands as long as the women can prove they became pregnant after getting divorced.

The move is in accordance with a Justice Ministry directive that children born within 300 days after divorce should be recognized as the children of the current husbands on condition that doctors can prove that the women became pregnant after divorce.

Article 772 of the Civil Code stipulates that children that women give birth to within 300 days after divorce should be regarded as the children of their former husbands.

At Tokyo's Sumida ward office, a 38-year-old woman who gave birth to a baby boy about two months earlier than expected and 292 days after divorcing her former husband applied to register her son in her current husband's family registry. She attached a doctor's certificate that shows she got pregnant after her divorce.

"We accepted the application form and will ask the local legal affairs bureau for a decision," an official who received the application form told the woman in accordance with the Justice Ministry directive.

The woman said more than 800,000 yen in medical expenses resulting from her premature delivery would have been covered by the ward office if it had accepted the birth notification.

The Adachi and Shinjuku ward offices in Tokyo also received similar applications on Monday, according to an Osaka-based nonprofit organization involved in a campaign to revise Article 772 of the Civil Code. (Mainichi)

The mother files the birth notice at Tokyo's Sumida ward office while holding her baby boy on Monday.

May 21, 2007

A 'baby' step to proper registration

The Asahi Shimbun
May 22, 2007
Source: http://www.asahi.com/english/Herald-asahi/TKY200705220097.html

A 38-year-old woman Monday morning handed in an application to register the birth of the 4-month-old boy she had carried into the Sumida Ward Office in Tokyo.

The name of her 38-year-old husband was written in the section for the baby's father.

"It has been a long time, but he will finally be acknowledged as our child, won't he?" she said.

It seems like a simple procedure, but for the woman, it's been a long and expensive time coming.

However, for many other mothers like her who have divorced and remarried, the wait continues to register their babies as children of their biological fathers because of a century-old legal stipulation.

Under Article 772 of the Civil Law, it has been "presumed" that infants born during the 300-day period after a woman's divorce were the offspring of the mother and her former husband. The article stipulates that the child must be registered as such, even if there is no biological connection.

In a step toward redressing the situation, a Justice Ministry directive took effect Monday that allows municipal governments to accept registration applications for babies born within 300 days of a divorce.

A baby born to a woman and her new spouse within that period will be acknowledged as the offspring of the woman and her current husband--but only if she can prove she became pregnant after the divorce.

Women who became pregnant before they divorced are not covered under the special measure. The ex-husbands are automatically named as the babies' fathers.

The directive calls on the registry applicants to submit a certificate that shows the time of conception. The certificate must be compiled by a doctor who performed an ultrasound or other examination.

Municipal governments will acknowledge the child's father is the woman's current husband after ensuring that the documents submitted to a ministry's legal affairs bureau contain no flaws.

In these cases, a special instruction section of the family registry, known as koseki, will say, "The presumption under Article 772 will not be applied."

The 38-year-old mother, who has been involved in a civic movement calling for revisions to Article 772, said she learned that many women cannot carry through with their divorce procedures.

She said some married women have fled their husbands because of domestic violence, and were afraid of asking their spouses to sign the divorce papers. Others simply cannot locate their spouses.

Many women have lived separately from their spouses for an extended period, and are effectively divorced from their husbands--but not on paper. This makes it difficult for them to carry out judicial procedures to obtain official approval for a divorce.

"The law intended to save fatherless children actually deprives them of their real fathers," said the woman who visited the Sumida Ward Office. "We were saved this time, but I don't want (the government) to bring down the curtain on the issue."

The woman's baby boy was initially due on Feb. 19 this year, at least 340 days after her divorce. She believed that was sufficient time to smoothly register the boy as the son of her current husband.

But two months before the delivery date, her doctor said the baby's life was at risk because of a lack of amniotic fluid in the womb.

She delivered the baby by Cesarean section on Dec. 30, 292 days after her divorce. The baby could not leave the hospital for about two months.

When trying to register her son, the mother explained the situation to officials at another ward office in Tokyo and showed her maternity passbook.

But the officials refused to accept any application that listed her current husband as the baby's father. They said they had no choice but to follow instructions.

She had to pay 700,000 yen in medical fees to the hospital. She was not covered under a financial aid program for infants because her baby was not entered into the family registry.

In Japan, about 3,000 babies are born every year within 300 days after the mother's divorce.

Of them, only about 10 percent of them can have the correct father listed as the father because many were conceived before the divorce.(IHT/Asahi: May 22,2007)

A 38-year-old woman submits a birth certificate of her son, who is 4 months old, to Tokyo's Sumida Ward Office on Monday. The woman also submitted a document from her doctor stating that her husband--not her ex-husband--was the father of the boy.(MARI ENDO/ The Asahi Shimbun)

Registration of children born after divorce begins

The Yomiuri Shimbun
May 22, 2007
Source: http://www.yomiuri.co.jp/dy/national/20070522TDY02006.htm

A new registration system under which municipalities accept babies born within 300 days after a divorce as the child of the mother's new husband started Monday.

The measure, however, requires doctor certification proving conception happened after the divorce.

The Civil Code stipulates a baby born within 300 days of divorce is the former husbands' child without exception. The new system is an exceptional measure based on an instruction by the Justice Ministry.

According to the ministry, there had been 20 cases of birth notification being submitted as of Monday in 13 prefectures, including four in Tokyo and three each in Kanagawa and Hiroshima.

In Sumida Ward, Tokyo, a couple with a baby unregistered since the couple's marriage visited the ward registration counter Monday morning and submitted forms to register the baby's birth.

The baby was born at the end of last year. The mother, 38, said: "I'm relieved because my son can be registered like most other children. I feel I should apologize to him for keeping him waiting to be registered."

According to the ministry, there are at least 2,800 babies born each year within 300 days following a divorce. But 90 percent of such children are believed to be conceived before divorces are official and are not covered under the new measure.

A lawmaker-initiated legislation studied the issue of conception before divorce, but was passed without the consideration due to moral considerations brought up by the Liberal Democratic Party. The ruling parties currently are discussing other measures to address the issue.

===

Doctor certification hard to get

Some have pointed out that obtaining a doctor's certification under the new system is difficult.

A couple in Tokushima Prefecture, who had their eldest son three years ago, had to wait a month to submit divorce papers the woman's former husband had filled out. The child was conceived shortly after the divorce was made official, but the woman said it could be deemed as happening before the divorce because the assumed period of pregnancy in doctor's certification was short.

Her husband, 33, said, "I hope the government becomes more flexible on pregnancies following divorces."

A man in Kobe whose situation is not covered by the new system said: "It's too bad we can't still register our baby. I'm waiting for the whole system to change, but this is a start."

(May. 22, 2007)