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Japan: New Instructions Allow Women to Remarry 100 Days After Divorce

(Feb. 26, 2016) Currently, article 733 of Japan’s Civil Code states that women cannot remarry until six months after a divorce. (Civil Code (Part IV and Part V) (tentative translation), Act No. 89 of 1896, art. 733, Japanese Law Translation website.) This provision aims to avoid uncertainty regarding the identity of the legally presumed father of any child born in that time period. (Kyoko Okuyama, Article 733 in Kihonho Konmentaru, Shinzoku [Basic Law Commentary, Family And Inheritance] (Ichiro Shimazu et al. eds. 4th ed. 2001).)  This provision relates to another provision, article 772, that presumes that the previous husband is the father of any child born within 300 days of a divorce.

In a ruling issued on December 16, 2015, the Supreme Court of Japan stated that there is no confusion related to paternity 100 days after a divorce because if a child is born after 200 days of marriage, the husband is presumed to be the father under the same article 772, and there is no overlapping presumption of paternity of a child whose mother remarries 100 days after a divorce. The Supreme Court held that the six-month waiting period for remarriage is too long. (2013 (o) No. 1079 (Dec. 16, 2015), COURTS.GO.JP (in Japanese).)

Subsequent Developments

On the day of the judgment, the Ministry of Justice (MOJ) sent a notice to municipal governments and instructed them to accept marriage reports, and register them in the family register, from couples that include recently divorced women if at least 100 days have passed since their divorces. (After 100 Days from Divorce, Marriage Reports Should Be Accepted; Following the Judgment, the Ministry of Justice Sent Notices Nationwide, MAINICHI NEWSPAPER (Dec. 16, 2015) (in Japanese).)

It was reported that since December 15, 2015, there have been 202 marriage reports from couples that include women who who had divorced between 100 days and six months prior to the new marriage. (202 Cases of Remarriage Within 6 Months … One and a Half Months After Supreme Court Judgment, YOMIURI NEWSPAPER (Feb. 21, 2016) (in Japanese).)

Article 733 of the Civil Code was not automatically nullified by the judgment because a judgment has direct effect only on the parties involved in a particular case. However, soon after the decision was issued, the government expressed its intention to amend the provision. The government is planning to submit the amending legislation during the current Diet session. (Id.)

The MOJ revealed the outline of the draft legislation to amend the Civil Code on February 18, 2016.  According to that text, the remarriage waiting period will be shortened to 100 days and a divorced woman who is not pregnant at the time of divorce can marry immediately after divorce. (Divorced Woman, Can Remarry Immediately If Not Pregnant … Civil Code Amendment Plan, YOMIURI NEWSPAPER (Feb. 19, 2016) (on file with author) (in Japanese).)