Speed Revision of Civil Code to Ensure Children Appear in Family Registers

A situation must be avoided in which children, through no fault of their own, are subjected to disadvantages because the registration of their birth has not been submitted at the parents’ convenience. Necessary legal revisions must be accelerated, to prevent more instances of such children not appearing in family registers.

A subcommittee of the Justice Ministry’s Legislative Council has compiled a draft interim proposal for a review of the system in the Civil Code on the “presumption of child in wedlock.” The government is expected to submit a bill to revise a provision in the system to the ordinary Diet session next year after receiving the proposal from the council.

Under the current Civil Code, a child conceived during marriage is presumed to be the child of the husband, while a child born “within 300 days” after a divorce is also presumed to be the child of the former husband. Only husbands can exercise the right to rebut the presumption of legitimacy in such cases. This provision has not changed since the Meiji era (1868-1912).

The provision was established to determine children’s fathers at an early stage and protect children’s right to receive support. However, there are cases in which a woman immediately after divorce does not submit the registration of the birth of a child conceived with a new partner in order to avoid the child being registered as the offspring of her previous husband in the family register.

As the existence of this provision causes many children to be unregistered, it is only natural to review it.

The draft interim proposal keeps unchanged the provision regarding the 300 days after divorce, but calls for an exception stating that if a woman has remarried at the time of childbirth, that child is presumed to be the offspring of the woman’s current spouse.

In addition, the draft interim proposal says that not only husbands but also children should be granted the right to rebut the presumption of legitimacy to deny a father-child relationship. When the child is young, the mother can sue on behalf of the child.

If father-child relationships are recognized in line with the actual situation, mothers will no longer need to hesitate to submit the registration of their children’s birth. It is important to link the current review to ending the practice of not registering such children.

In recent years, divorce and remarriage are not uncommon. Advances in DNA testing technology have made it easier to identify the blood relationship between parents and children. Changes in the times must be taken into consideration fully when revising the law.

In principle, people who are not in family registers cannot create a resident registration nor obtain a passport. Among the various difficulties in their daily lives, unregistered people have to go through much trouble to get a marriage registration accepted and suffer disadvantages when trying to be employed.

They tend to be easily isolated from society. In autumn last year, an unregistered elderly woman in Osaka Prefecture starved to death. Her son who lived with her also did not have a family register and was said to be unable to ask those around him for help.

Since 2014, about 3,400 people have been confirmed as not being in any family register. Although some of them have created new family registers, about 900 remain unregistered. In many of these cases, birth registration was not submitted because of the Civil Code provision.

Private organizations supporting unregistered people have said that there are actually more than 10,000 people who are not in family registers. Legal affairs bureau offices and local governments need to make efforts to ascertain the actual situation surrounding unregistered people and improve measures such as strengthening consultation systems for them.

— The original Japanese article appeared in The Yomiuri Shimbun on Feb. 18, 2021.