Media watch: Revision of 300-day law isn’t all it’s cracked up to be

As we’ve said here many times before, one of the main purposes of Japan’s family register system (koseki) is to determine paternity for the sake of bureaucratic convenience, which means that it is the authorities who have the last word on who the father of a child is. Over the years this function has caused grief to some families whose circumstances veer from the norm. The most infamous component of this system is the Civil Code statute that states if a child is born to a woman within 300 days after her divorce is finalized, the child’s father is automatically deemed by the government to be the woman’s previous husband, regardless of whether she has remarried or, if she has, any claim of paternity the new husband may want to make. The idea behind this odd rule is simple and almost cynical: Since the authorities can’t prove beyond a reasonable doubt that the child is not the issue of the previous husband, given that it is entirely possible that the couple could have had sex on the eve of their divorce, it’s easier to just assume he is rather than fret over other possibilities. Such arbitrary attention to detail would not be necessary if the family register weren’t so focused on a head-of-household, but that, to the authorities, at least, is the beauty of the family register since it defines a family the way the authorities want it to be defined. 

The problem, of course, is that marriages and families don’t always align with this model, and many women who find themselves giving birth during this 300-day connubial lacuna refuse to register the child because they don’t want their ex to be designated as the father, for various reasons. The Ministry of Justice says that there are 793 people in Japan who do not have family registers (the number sounds quite low to us, but for the sake of this blog post we’ll take their word for it), and 70 percent don’t have them because of this 300-day rule. In Japan, it is difficult to live without a koseki, because you need one to apply for social services and a passport, and many employers require them as well. So while 793 is not a particularly big number, the rule has always proved to be an obstacle, and an unnecessary one because of its aformentioned arbitrary character.

On Oct. 14, the Cabinet submitted a bill to revise the Civil Code so as to eliminate the 300-day rule. However, according to the Asahi Shimbun, the bill will not help all those who don’t have kosekis due to the rule because the revision is “exceptional,” meaning it isn’t technically a true revision of the law. It simply adds a condition. Essentially, it says that if a woman has remarried and given birth within that 300-day period following her divorce, then the father of the child is deemed to be her new husband, not the previous one. This makes sense, but it still privileges the authorities in determining who the father is. The revision also throws out another archaic rule that prohibits a woman from remarrying within 100 days of her divorce, but if the woman does not remarry within that 300-day period, or if the child is born before she remarries within that 300-day period, than the child is still considered the issue of her previous husband, no matter what she may say to the contrary. According to a 2020 survey conducted by the MOJ, the new revision will only rectify matters for 40 percent of the children who don’t have kosekis because of the 300-day rule, since only those children were born after their mother remarried. The rest would remain, for all intents and purposes, stateless, at least in the eyes of the bureaucracy.

A lawyer who often represents children without kosekis told the Asahi that this “redress” is so limited as to be almost useless for most of her potential clients, since it’s premised on the mother being married. Legitimacy is still a circumstance that the government wants to control, and in a sense whatever problems for the authorities that the revision might solve, it officially stigmatizes children born out-of-wedlock. The lawyer has suggested introducing a system wherein the birth report is accompanied by DNA proof of paternity, but that solution still plays by the rules laid out by the government. A more sensible, and fairer, solution would just be for the mother to submit a birth report with the name of the father and then the authorities just take her word for it, since that is basically the system in place in almost every other country in the world. Unless you assign an official to every bedroom in the country to observe the act of procreation there is no way beyond a DNA test to confirm that one particular man is definitely the father of a particular child, but why should you have to? Why can’t the government just let women and their significant others make that determination themselves? Even if they lie for their own convenience’s sake, who does it hurt, except perhaps the child further on down the line? In any case, it’s not the government’s job to determine unilaterally who is or isn’t the father of a child. It’s really none of their business.

Usually, the reason women don’t register their children under such circumstances is because of domestic violence. They have broken off with their ex-husbands, and having them legally connected to their subsequent children might necessitate further contact. For instance, regardless of the revision, if the ex-husband is deemed to be the child’s father because the mother has not remarried, in the event the mother does not want him registered as the father she would have to get him to officially denounce his paternity. She cannot do it by herself (though he can). Otherwise the mother would have to sue, which means she would have to face her ex-husband in court, something she might not want to do if he had been abusive while they were married. 

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