Recent news out of Japan reveals interesting aspects of their family law system, in particular relating to determining legal paternity. The Japanese Government is currently proposing scrapping a 100-day remarriage ban for Japanese women getting divorced. Critics have argued the laws are discriminatory and antiquated, having been established way back in 1898. Now it looks as if the Japanese Government is set to modernise the law as it tweaks the provisions of its Civil Code, which deals with family law matters.
The reason Japanese women currently still face a 100 day waiting time before being able to remarry is due to the rules over legal paternity. It’s pretty much a mathematical equation involving the term of a woman’s pregnancy and the time of her divorce. If a woman divorces and has a child born within 300 days of the divorce, that child is presumed to be the former husband child. On the other hand, a baby born within 200 days of a new marriage will be presumed to be the child of the new husband.
The justification for the provision is that it protects a child’s welfare by quickly deciding who is their legal father. In Japan, children receive a range of health and other services when they are registered with the family registry. In around 70% of cases of individuals with no family registry in 2022, the mothers did not submit birth notifications because of the legal paternity rule. This is argued to be putting those children at risk as they will not be able to access services.
So why do women opt not to notify the family registry of the birth of a child with their current partner? Because they don’t wish their former husband to be automatically recognised as the legal father of the child. At the moment, women don’t have the right to file for court arbitration in order to deny the presumed legal paternity—only husbands may do so. And getting a former husband to cooperate (particularly if family violence is a factor) in that regard is often arduous. Amending the Civil Code in this regard is also argued to be necessary.
Now the Japanese government intends to pass proposed landmark changes to the Civil Code this year. The 100 day remarriage ban for women is to be scrapped. The provision “within 300 days of divorce” is to remain intact, but the proposed changes will give an exemption to women who have remarried at the time of giving birth. In those cases, the child would be recognised as the child of the current husband. However, critics say this does not help women who do not marry their new partners after getting divorced, as the exception would not apply to them. But establishing DNA through testing means it’s easy to determine blood relations nowadays, so critics query why there is even a need for the 300 day rule anymore.
How is paternity determined in Australia?
By contrast, in Australia, paternity is determined very differently. Under our Family Law Act 1975, a man is presumed to be the child’s father if the man:
- was married to and living with the child’s mother at the time of the child’s birth;
- has signed a document acknowledging he is the child’s father;
- has cohabited with the child’s mother in the ten months before the child was born; or
- is acknowledged on the child’s birth certificate as the father.
If there is a dispute over paternity, either party can ask the court for a declaration of paternity, if they are able to satisfy the court that the relationship exists. If a man wishes to deny the presumption of parentage, he must prove on the balance of probabilities that he is not the child’s biological father. DNA testing is able to establish paternity, either if contesting or asserting paternity. DNA testing is only ordered by a court as part of a parenting application.
You might also like to read: Can you refuse to take a DNA test to determine paternity?
Do you need assistance with a parenting or other family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
Source: Japan Times