Over the past decade there has been
an enormous rise in the number of registered marriages in which one of the
spouses is a non-Japanese national. Statistics for 2000 show that in about 80%
of these unions the husband was Japanese. The majority of brides were from
neighboring Asian countries such as China, Korea, the Philippines or Thailand.
When the wife was Japanese, Koreans were the most popular grooms. In Japan,
these kinds of marriages are usually referred to as "international
marriages" (Kokusai kekkon). In 2000, 36,263 such couples tied the
marital knot, which was a record high.* The
current trend shows a clear upward trajectory. These figures also indicate
that Japan is slowly becoming a more multi-ethnic society. International
marriages offer a myriad of socio-economic benefits to Japan and are enriching
many local communities around the country.** Despite the very positive
aspects of this development, the sharp increase in these kinds of unions is
also exposing a number of serious legal flaws in the marriage and divorce laws
when they apply to foreign spouses.
While many international marriages
are successful, those that are unlucky enough to end in divorce are currently
poorly served by the existing legal framework. Despite a series of amendments
during the eighties and nineties, foreign spouses still face formidable
hurdles if their marriage ends in divorce.
The
termination of such a union represents a very different set of dynamics from
divorces in which both parties are Japanese.***
Some aspects of the law are
particularly vague, which creates many serious problems. On 17 October 2002,
the Supreme Court issued its first decision on the visa status of a
non-Japanese spouse married to a Japanese citizen. This ruling highlighted
many of the current flaws which are outlined below and this particular case
will be examined in depth in the next article in this series (Part
Two – Impact of
17 October 2002 Supreme Court decision on International
Marriages).
Residency status of divorcing foreign
spouses
In divorce suits involving a
foreign spouse, residency status is probably the number one issue in most
cases. The residency status of the spouse at the time of divorce is the
critical factor in the entire equation. The Immigration Control Act of Japan
recognizes 27 types of visas, which include various categories such as Spouse
Visa, Instructor Visa, Student Visa, Professor Visa, inter alia. Whether
divorce will affect the residency status of the individual depends on the visa
held at the time of marital dissolution. For example, if the foreign spouse
applied for and obtained either Permanent Residency (eijuusha or eijuuken)
or Japanese Citizenship (nihon-kokuseki) during the marriage, then they
can remain in Japan after the divorce as their residency status is not
dependent on their marital status. Basically, any kind of visa which is not
reliant on being married will not be affected by divorce and can be renewed as
long as the criteria under which it was issued remain valid.
Divorce and spouse visas
If an individual holds a Spouse
Visa (nihonjin-no-haiguusha), divorce means that this status will be
revoked and this particular type of visa cannot be renewed. A Spouse Visa is
valid for either a one or three year period and can be used after divorce
until it expires. If the individual wishes to stay in Japan, the visa status
must be changed. For those holding a Spouse Visa, the presence or absence of
children is a key element in deterring the new residency status.
Divorces involving children
When the relationship has produced
offspring and the foreign spouse gets custody of the children, then a Long
Term Resident Visa (teijuusha) can be applied for, which is renewable
indefinitely. To be eligible for this visa, the couple does not actually have
to have been legally married, but the Japanese parent must have legally
acknowledged their offspring. A child
qualifies for Japanese nationality, if at the time of birth either of the
parents is a Japanese citizen.****
In most of these types of divorce
cases, the foreign wife gets custody of the children and generally there is
little conflict regarding this particular aspect. In those cases where
complications do arise on this issue, they often involve the Japanese
husband's mother disputing custody. Where there is a legal dispute over the
children, Japanese courts tend to almost always rule in favour of the mother
when the children are young.
According to a Justice Ministry
directive issued on 30 July 1996, foreigners who have custody of their
legitimate children with Japanese nationality, and who are actually taking
care of the children in Japan, are entitled to receive a Long Term Resident
Visa (teijuusha) or Permanent Resident Status (eijuusha). There
are virtually no exceptions to this directive. Illegitimate children born to a
foreign woman and Japanese father, who is already married, also have a chance
of receiving residency status under the 30 July 1996 directive, which allows
for a special residency status under these circumstances.
In all cases, the Justice Ministry
has discretionary power over how soon the visa is granted. At present, the
procedure can take one or two years, which causes some mothers severe stress
and hardship. The residency status is decided on a case-by-case basis
according to the specific circumstances. Generally, the financial situation of
the individual is examined and it is determined whether the stated purpose of
the visa matches the applicant's situation.
Divorce and visa problems involving
children
Currently, there is a serious gray
area in the present legislation with regard to cases where the mother has
children from a previous relationship with a non-Japanese national and these
children do not have Japanese citizenship. For example, a Chinese woman with
two children from a previous relationship with a Chinese partner who marries a
Japanese man. She and her children could find themselves deported were she to
divorce, if the children had not acquired Japanese nationality. At present,
these kinds of cases are the most problematic and likely to increase in number
as the Japanese economy becomes more globalized.
Divorces involving no children
For those holding a Spouse Visa,
but having no children, remaining in Japan after the divorce may be much more
difficult than for those who have children. After divorcing, those with a
Spouse Visa and no children will only be able to stay in Japan until the visa
expires. If an individual wishes to remain in Japan after this period, it will
be necessary to change the visa status. For example, someone who holds a
Spouse Visa and is working as a language instructor might be able to change
their status to that of Instructor Visa.
A serious problem arises for many
foreign women who have only been housewives. Language difficulties often
prevent foreign spouses from engaging in paid employment during their initial
first few years in Japan. This makes it difficult for them to be self
supporting after a divorce and even harder for them to change their residency
status. Divorce for these women often means that they will have to return to
their home country, even if they were not at all responsible for the divorce
in any way.
Current position of some divorcing
foreign spouses is unfair
The current situation is obviously
grossly unjust as it means that a husband can abuse his foreign wife in
various ways, safe in the knowledge that if the wife files for divorce she may
have to leave Japan. Research conducted at centres for battered women
indicates that many foreign wives tolerate abusive treatment for long periods
out of fear of loosing their residency status.
Regardless of the circumstances of
the divorce, the Immigration Bureau will not renew the Spouse Visa unless a
couple are actually living together as husband and wife. The stringent renewal
process requires proof that the wife is living with her husband. A letter of
guarantee written by the spouse is also needed as well as evidence of the
spouse's employment, and a certificate of tax payment.
In many cases, the husband utilizes
the wife's weak position as a bargaining chip if he wants a divorce. Often he
allows the wife to renew the Spouse Visa on a one time basis on the
understanding that she will then agree to a divorce afterwards.
International marriages and the global
community
The current situation is highly
unsatisfactory for some foreign spouses as it means they can be mistreated
almost with impunity. If they attempt to alleviate the situation, they face
the very real prospect of deportation. Even if the wife has adjusted well to
life in Japan and invested a lot of her life's energy in building up friends
and relationships, she faces possible ejection from Japan due to her husband’s
misdeeds and no wrong doing on her part. This situation is incompatible with
the aims of creating a fair and equitable global society.
As the number of international
marriages increases yearly, Japan's position as an integral part of the new
global community is growing. If the nation wishes to become a successful and
mature multi-ethnic society, it urgently needs to satisfactorily resolve the
grave shortcomings in divorces involving non-Japanese nationals.
In the next
article in this series, the 17 October 2002 Supreme Court decision on
Spouse Visa status and its implications for international marriage will be
analyzed.
References
* On
International Marriages in Japan
J. Sean Curtin, Debates, GLOCOM Platform, 14 March 2002
http://www.glocom.org/debates/200203_curtin_inter/
** Foreign
brides fill the gap in rural Japan
Takuya Asakura, Japan Times, 8 January 2002
http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?nn20020108b9.htm
Making Japan a More
Multi-ethnic Society is an Investment in the Future
J. Sean Curtin, Debates, GLOCOM Platform, 25 September 2002
http://www.glocom.org/debates/20020925_curtin_making/
*** On
Divorces Involving a Non-Japanese Spouse
J. Sean Curtin, Debates, GLOCOM Platform, 15 March 2002
http://www.glocom.org/debates/200203_curtin_div/
**** The
Law concerning Nationality (as amended in 1984)
Article 2. A child shall be a Japanese national if:
(1) at the time of birth, either of the parents is a Japanese national;
(2) the father who died prior to the birth of the child was a Japanese
national; or
(3) the child was born in Japan and both parents are unknown, or are without
nationality.
Part Two – Impact of 17 October 2002 Supreme Court decision on
international marriages
On 17 October 2002, the Supreme
Court issued its first ever decision on the visa status of a non-Japanese
spouse married to a Japanese citizen. This ruling highlights many of the
problems facing foreign wives with a Spouse Visa, but whose marriage has
produced no children. This is a significant ruling as it is the first case
that has made its way up to the nation's highest court. The verdict exposes
the inadequacies in the current system and shows that Japanese law on this
issue is not up to a global standard.
In 1983, Peancai Midchid, a Thai
national, came to Japan for the first time on a Tourist Visa. She was aged 24
at the time. In 1988, she married a Japanese man in Thailand, returning to
Japan in April 1989 on a Spouse Visa. In 1990, her husband left the couple's
home after having admitted to fathering two children with another woman. Even
though separated from her husband, she managed to get her visa renewed every
year until 1993. In total, she lived separately from her husband for a period
of four years and eight months before the renewal of her visa was denied.
In April 1994, the local
immigration bureau rejected her renewal application on the grounds that her
marriage was void as she and her husband were living apart. This decision
prompted her to file a lawsuit at the Osaka District Court to overturn the
immigration bureau's decision. Peancai Midchid's lawyers argued that it was
illegal for the government to deny the renewal of her visa in April 1994 as
the couple are still legally married, even if living separately. Furthermore,
the separation was not due to any fault on her part and it would be grossly
unfair to uproot Midchid from Japan because of the adulterous actions of her
husband. Additionally, Midchid hoped that the relationship with her husband
could be repaired.
In December 1996, the Osaka
District Court rejected her lawsuit on the straightforward grounds that her
marriage had broken down and reconciliation was unlikely. In rejecting her
claim for a new Spouse Visa, the court noted the following: "The couple's
relationship has lost its significance and is unlikely to be restored."
They ignored the argument of her lawyer that non-renewal was unjust because
her husband's behaviour was responsible for the breakup and Midchid was
completely blameless.
Peancai Midchid immediately
appealed the decision, taking her claim to the Osaka High Court. Two years
later in December 1998, the high court ruled in her favour, overturning the
decision of the lower court. This was a highly significant ruling as the Osaka
High Court clearly recognized that the current legal position of some foreign
spouses is unequal and accepted the arguments presented by Midchid's lawyer.
In part of its opinion, the court noted: "It goes against justice to be
forced to leave the country because of the extramarital affair committed by
the plaintiff's husband." In another passage, the court acknowledged the
global dimension of the case: "The husband is responsible for the
marriage breakup. Unless the status of a wife is legally protected, the system
will be considerably unjust in today's world, in which an increasing number of
foreign people are married to Japanese citizens." The government
immediately appealed the ruling.
On 17 October 2002, the Supreme
Court overturned the Osaka High Court ruling which had both granted Midchid
the right to stay in Japan as well as recognizing the unjust situation some
foreign spouses currently face. The Supreme Court presiding judge, Masao
Fujii, basically adopted the line of reasoning taken in the original 1996
Osaka District Court decision. Part of the new judgment read: "Foreigners
cannot satisfy the requirements for a Spouse Visa even if they are legally
married to a Japanese, but not in an actual relationship." Another
passage stated: "Even when a foreigner is legally in a marital
relationship with a Japanese, that person has not satisfied the requirements
for legal residency if their relationship has lost the material base for
leading a social life." Noting that the husband now had two children from
another relationship, the ruling also noted: "The marital relationship
has no prospect of being mended."
Peancai Midchid, who is now 43 and
living in Wakayama, signaled her intention to apply for special permission to
be granted for Permanent Residency status. Having lost her case, this is now
the only legal avenue open to her. She also expressed anger and frustration at
the decision.
The Supreme Court clearly rejected
the Osaka High Court argument that looked beyond the simple regulations of the
immigration authority to the wider injustice of the situation. The Supreme
Court's interpretation of the law now confirms that a foreign spouse with no
children can risk deportation from Japan if their marriage has breakdown
through no fault of their own.
The ruling implies that if a
foreign spouse with no children wants to avoid the threat of deportation,
their marriage must have both a legal and tangible shared-living basis. This
ruling validates the current criteria the Immigration Bureau adopt when
assessing the renewal of a Spouse Visa. Regardless of the circumstances of the
divorce, the Spouse Visa will not be renewed unless a couple is actually
living together as husband and wife. After divorce, once a Spouse Visa has
expired, if the former spouse wishes to stay in Japan, they must seek to
change their visa status or risk deportation.
The ruling now clarifies the
unequal status of foreign husbands and wives holding a Spouse Visa without any
Japanese children. Japanese spouses can breakup a marriage by committing a
misdeed and as a result the guiltless foreign spouse faces the prospect of
deportation through no wrongdoing on their part. This situation is clearly
unjust and gives a carte blanche to irresponsible Japanese spouses. This
decision will be particularly bad news for foreign wives who are subjected to
domestic violence, since they risk deportation if they attempt to flee
physical abuse.
Hopefully, the government will
consider issuing new guidelines to the Immigration Bureau to treat foreign
spouses in these circumstances leniently when it comes to changing their visa
status after a divorce. The government should seriously reflect on the Osaka
High Court judgment which clearly encapsulated the unfairness of the current
situation. The opinion also clearly identified the global perspective on the
issue, when it stated: "Unless the status of a wife is legally protected,
the system will be considerably unjust in today's world, in which an
increasing number of foreign people are married to Japanese citizens."
In the next article in this series,
the focus will be on the poverty of Amerasian children in Okinawa.
Part
Three –Amerasian children in Okinawa
In Okinawa, a Japanese-American
union is the most common type of international marriage. These kinds of
marriages have a major impact on the social fabric of the island prefecture.
In 1998, Okinawa was slightly above the national average for international
marriages with 4.6% of all unions there involving a non-Japanese spouse. What
distinguished these matches from the rest of Japan was that the vast
majorities were between a Japanese bride and an American groom. Nationally, in
about 80% of international marriages, the husband is Japanese and wife is from
a neighboring Asian country. When one considers that in 2001 Americans only
made up 0.026% of the total population of Japan, the number of
Japanese-American marriages in Okinawa is quite astounding. Many of these
unions produce offspring. According to Okinawan government estimates, each
year about two hundred Amerasian children are born in the prefecture.
Okinawa enjoys a strong overall
marriage rate, but it also suffers from an equally high divorce rate. For
example, in 1999, the Okinawan divorce rate was 2.78 per thousand people. This
was well above the national average of 2.00 and was higher than the divorce
rates of many European countries. The high divorce rate also partially
explains why the prefecture has the highest ratio of mother-headed households
in the country. While quite a number of international marriages in Okinawa are
very successful, these unions are not immune from the strong regional divorce
trend.
Unlike the marriage statistics,
published divorce figures do not record the nationality of the divorcees, but
research shows that separation rates for couples of mixed nationality in the
prefecture are extremely high. This has led to one of Okinawa's the most
disturbing and normally concealed social problems. Over the past decade,
American servicemen have deserted thousands of children and returned to their
home country.
Local authorities and researchers
have compiled figures for the number of abandoned Amerasian children. It is
estimated that there are between 3,900 to 4,000 such children in Okinawa. The
figure probably underestimates the true scale of the problem.
Calculations are mainly based on
children abandoned by American fathers in Okinawa and not in the United
States. Okinawan women returning with children after a divorce in America are
sometimes missed by the statisticians and researchers. Another problem with
compiling data is that some women are abandoned by their American partners
before giving birth. These mothers are often reluctant to name the father in
official documents.
The breathtaking tropical beauty of
the islands that make up the Okinawa territory are deceptive, concealing a
host of deep-seated socio-economic woes. Social scientists believe that the
weak and undeveloped regional economy is a major contributing factor behind
the high rate of marital breakdown in the prefecture.
Okinawa has one of the weakest
regional economies in Japan, which creates a unique set of social problems.
The prefecture's economic disparity can be clearly seen in its high
unemployment rate, which stood at a record 9.4% in September 2002. This was
the highest in the country and nearly double the national average of 5.4% for
the same month. Okinawa also has the highest rate of unemployment for high
school and university graduates. Furthermore, those in employment have the
lowest wage levels in the country.
Many of Okinawa's complex social
problems stem from the overwhelming presence of American forces based on the
islands, which dominate and distort the economy
of the prefecture.* While Okinawa accounts for just 0.7% of Japan's total
land mass, Okinawa provides about 75% of the land used exclusively by the
United States military forces based in Japan. There are about 20,000 to 22,000
United States military personnel stationed in Okinawa. To put this figure in
perspective, there were 46,244 Americans living in Japan in 2001. Thus, tiny
Okinawa accounted for just under half of all American citizens living in the
country. This massive concentration of Americans in such a tiny corner of the
country has inevitably created some unique social situations, such as the high
ratio of Japanese-American marriages.
Children from lone-mother
households in Okinawa are among the most economically deprived in the country.
Besides the obvious disadvantages of poverty, abandoned Amerasian children
often have to face various forms of discrimination. One of the major problems
confronting these children is school bullying, which many encounter in Japan's
conformist education system. Amerasian children born in the United States and
unable to fluently speak Japanese usually face
even greater difficulties.**
Sending such children to
international schools is seen as a solution. However, for the vast majority of
cash-strapped lone-mothers, this is not a viable option. The fees of such
schools are normally beyond their budgetary means. As a result, many
underprivileged Amerasian children end up in regular schools where they have
high dropout rates. This compounds their economic woes, making the lives of
already disadvantage children even worse. Since Okinawa already has the
highest rates of lone-mother poverty in the country, it should come as no
surprise to learn that the abandoned offspring of U.S. servicemen account for
some of the poorest children in the whole of Japan.
Nearly all Japanese lone-mother
households struggle to make ends meet. However, the poverty levels of Okinawan
mothers represent some of the most severe in the country. According to a 1999
study, more than seventy percent of Okinawan lone-mother households had an
income of less than 150,000 yen per month, equivalent to an annual income of
1.8 million yen. To put this into perspective, the income of the average
Japanese household for 2000 was about 6.17 million yen. The national average
annual income of a lone-mother household was just 2.52 million yen, which was
not even a third of the average household income. Most Okinawan lone-mothers
have incomes that fall well below even this meagre figure, trapping them in
severe poverty. Poverty is often defined at the individual level by
calculating if the person lives in a household with a size-adjusted disposable
income that is less than half the median for
the average household in the nation.***
One of the primary reasons for
lone-mother poverty in Japan is that fathers do not financially support their
children. This is largely due to Japan lacking a system for the collection of
child support payments from non-compliant fathers. According to a 1999
Okinawan study, ninety percent of mothers did
not receive any child support payments.****
If a Japanese father refuses to pay
child support, no real action is taken against him. This is even more of a
problem when the father is a U.S. serviceman. This is because once he returns
home, the family usually lose all contact with him. Case studies show that
some military personnel especially arrange to be transferred before their
children are born, making it easier to abandon them. Until the late nineties,
such behavior by deadbeat American fathers would lead to no reprisal in the
United States.
In recent years, a few American
military fathers have actually had to face up to their responsibilities. This
is thanks to the work of some crusading lawyers in Okinawa. At present, if a
serviceman moves back to the United States, it is now possible to take action
against him for child maintenance in Okinawa. By contacting child support
centres in the United States, court orders demanding DNA-paternity tests can
be issued and child support payments deducted from delinquent fathers. Some
Amerasian children have also used the Internet to try to track down their
fathers.*****
Even though delinquent American
fathers now face the prospect of being prosecuted in family courts, the
process takes a lot of time. This is because there is no treaty between Japan
and America on the issue. Germany, Sweden and Britain all have individual
agreements with America to cooperate in matters of child support involving the
servicemen of their respective countries. However, despite talk of inserting a
clause in the Status of Forces Agreement between the U.S. military and Japan,
nothing has been done to date. The blame for this lies squarely with Japan,
which lacks a system for tracking down non-compliant fathers, conducting
DNA-paternity tests and deducing money from the delinquent father's salary. At
the moment a bilateral treaty would not be viable, as Japan could not
reciprocate for claims made in the United States. Japan needs to establish an
effective system for making its own non-compliant fathers pay child support.
The current tragedy of thousands of
abandoned Amerasian children living in abject poverty is not something that is
going to be addressed without some serious political effort from both
countries. Proper safeguards are needed to ensure these children do not end up
in legal limbo between the two states. A bilateral treaty would certainly help
alleviate some of the unfortunate social problems. If the United States
military genuinely wants to improve relations with the people of Okinawa, then
it needs to ensure its servicemen take responsibility for their offspring. The
fact that children born in Okinawa of parents from the world's two richest
nations are some of the poorest in Japan is a shameful matter for both
countries.
References
