The Japanese Civil Code

: Japanese Fairy Tales

The East and the West, the Past and the Present, meet in the Japanese

Civil Code, which became law in January, 1893.

It is the first codification of private law that Japan ever had in her

long history. Up to that time the basis of Japanese laws and institutions

was Chinese moral philosophy, ancestor worship and the old feudal system.

The Criminal Code of Japan (Shin-ritsu-koryo), enacted in 1870, was the
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last legal code founded on Chinese philosophy, customs and traditions, and

the Revised Criminal Code (Kaitei-Ritsurei) is the first group of

Japanese laws based upon European jurisprudence and civilization.

Three periods may be marked in the history of Japan with regard to the

legal aspect of the marriage relation. The first was the ancient Japanese

period, the second the Chinese period, and the third, the present, that of

modern Japan.

The Chinese doctrine of the perpetual obedience of woman to man is

expressed in the "Three Obediences": Obedience, while yet unmarried, to

the father; obedience, when married, to the husband; obedience, when

widowed, to the son.

Buddhism regards woman as an unclean creature, a temptation, and an

obstacle to peace and holiness.

The great revolution in the legal position of woman in Japan which the new

Civil Code has brought about is as impressive as all the other changes for

the better which have of late years taken place in the land of the Cherry

Blossoms. The Chinese and Buddhistic theories concerning womankind have

but little influence on modern Japanese law.

Under the Civil Code husband and wife are now on an equal footing, except

when consideration for their common domestic life requires some


Persons who are about to marry are permitted to make any contract with

regard to their individual property, and a woman is capable of owning and

controlling her separate property all during marriage.

When Japanese law belonged to the Chinese system of jurisprudence there

were seven causes for divorce, namely:

1. Sterility.

2. Lewdness.

3. Disobedience to father-in-law or mother-in-law.

4. Loquacity.

5. Larceny.

6. Jealousy.

7. Bad disease.

As under the Mosaic law, these causes were invented only for the advantage

of the husband. A wife had no right even to desire a divorce from her


An examination of the seven causes shows that a woman could be divorced

practically at her husband's pleasure. The New Civil Code has changed all

this. A wife has equal rights with her husband to the benefits of the

divorce law.

The New Civil Code of Japan is divided into five books, but it is only

with Book IV., which deals with the "Family," that we are at present


A summary of the present marriage and divorce law of Japan, as translated

from Book IV., follows:

REQUISITES OF MARRIAGE.--A man cannot marry before the completion of his

seventeenth year or a woman before the completion of her fifteenth year.

A person already married cannot contract another marriage.

A woman cannot contract another marriage within six months from the

dissolution or cancellation of her former marriage.

If a woman is pregnant at the time of the dissolution or cancellation of

her former marriage this provision does not apply after the day of her


A person who is judicially divorced or punished because of adultery cannot

contract a marriage with the other party to the adultery.

Lineal relatives by blood or collateral relatives by blood up to the third

degree cannot intermarry; but this does not apply as between an adopted

child and his collateral relatives by adoption.

Lineal relatives by affinity cannot intermarry. This applies even after

the relationship by affinity has ceased because of marriage or divorce.

An adopted child, his or her husband or wife, his descendants and the

husband or wife of one of his descendants on the one hand, and the adopter

and his ascendants on the other hand, cannot intermarry, even after the

relationship has ceased.

For contracting a marriage a child must have the consent of his parents,

being in the same house. This, however, does not apply if the man has

completed his thirtieth year or the woman her twenty-fifth year.

If one of the parents is unknown, is dead, has quit the house, or is

unable to express consent, the consent of the other parent is sufficient.

If both parents are unknown, dead, have quit the house, or are unable to

express consent, a minor must obtain the consent of his guardian and of

the family council.

This by way of parenthesis: The members of a house comprise such relatives

of the head of the house as are in his house and the husbands and wives of

such relatives.

The head and the members of a house bear the name of the house.

The head of the house is bound to support its members. A marriage takes

effect upon its notification to the registrar. A wedding ceremony is not

legally essential.

The notification of marriage must be made by the parties concerned and at

least two witnesses of full age, either orally or by a signed document.

If a Japanese couple in a foreign country contract a marriage between

themselves they may give the notification of their marriage to the

Japanese minister or consul stationed in such country.

EFFECT OF MARRIAGE.--By marriage the wife enters the house of the husband.

A man who marries a woman who is head of a house, or a mukoyoshi, enters

the house of his wife.

A mukoyoshi is a person who is adopted by another and at the same time

marries the daughter of the house who would be the heir to the headship of

the house.

A wife is bound to live with her husband. A husband must permit his wife

to live with him.

A husband and wife are bound to support each other. When the wife is a

minor the husband, if of full age, exercises the functions of a guardian.

A contract made between husband and wife may be cancelled at any time

during the marriage by either party, but without prejudice to the rights

of third persons.

DIVORCE BY MUTUAL CONSENT.--The husband and wife may effect a divorce by

mutual consent. No court procedure is necessary. Just as in giving notice

of marriage, the parties consenting to be divorced give notice of such

agreement to the registrar, and they are ipso facto divorced.

A person who has not reached the age of twenty-five years, in order to

effect a divorce by mutual consent, must obtain the consent of the person

or persons whose consent was necessary for the marriage.

If a husband and wife have effected a divorce by mutual consent without

arranging as to whom the custody of the children shall belong, it belongs

to the husband.

JUDICIAL DIVORCE.--A husband or wife, as the case may be, can bring an

action for divorce for the following causes:

1. If the other party contracts a second marriage.

2. If the wife commits adultery.

3. If the husband is sentenced to punishment for an offence specified in

Article 348 et seq. of the Criminal Code; such offences involving

criminal carnal sexuality.

4. If the other party is sentenced to punishment for an offence greater

than misdemeanor, involving forgery, bribery, gross sexual immorality,

theft, robbery, obtaining property by false pretences, embezzlement of

goods deposited, receiving knowingly stolen goods, or any of the offences

specified in Articles 175 and 260 of the Criminal Code, or is sentenced to

a major imprisonment or more.

5. If one party is so ill-treated or grossly insulted by the other that it

makes further living together of the spouses impracticable.

6. If one party is deserted by the other.

7. If one party is ill-treated or grossly insulted by an ascendant of the

other party.

8. If an ascendant of one party is ill-treated or grossly insulted by the

other party.

9. If it has been uncertain for three years or more whether or not the

other party is alive or dead.

10. In the case of the adoption of a mukoyoshi, if the adoption is

dissolved, or in the case of a marriage of an adopted son with a daughter

of the house, if the adoption is dissolved or cancelled.