Marriage and Divorce in Japan

Entering into marriage ( Japanese 結婚 , kekkon , or 婚姻 , kon'in ) has historically always been a covenant in Japan that supports the continuation of the family (line), i.e. H. the production of family members. The individual needs of the married couple played a subordinate role. Therefore, the divorce ( 離婚 , rikon ) of this alliance, which essentially represents a contract for the mutual benefit of families, was and is comparatively easy and frequent. The idea that marriage is a divine institution is completely alien to Japanese tradition. Before 1898, the state had hardly any interest in intervening in the formalities. Since the mid-1960s, free choice of partner has become the norm.

General

Types of marriage

According to custom and law, three types of marriage have been distinguished since the Middle Ages, based on the position of newlyweds to their families of origin:

• Normal ( 普通 婚姻 , futsū kon'in ): The bride marries into the groom's family,
• Nyūfu ( 入 夫 ): The groom marries a bride who is the head of the household,
• Muko yōshi ( 婿 養子 ): The groom marries into the bride's family and at the same time is adopted as ancestor into this family and takes their name.

The latter two forms, which had comprised 20-25% of all marriages in the Edo period, became practically insignificant by the Second World War . They were no longer provided for in the reformed BGB in 1948. The divorce of a muko-yōshi marriage also required the cancellation of the adoption ( 離別 , ribetsu ).

polygamy

Polygyny , i.e. the marriage of a man with several women, seems to have been common throughout the people in the early Japanese period, from the Nara period the custom was limited to the upper classes, although cohabitation was quite common until 1900.

Within the imperial family it was customary for each of the imperial wives to be raised to the rank of empress only after she had given birth to a male child. The first-born as a potential heir to the throne was then given the title … no Oe. This ensured that the existence of several candidates (each from different women) ensured the succession to the throne. Since the Heian period, one of the imperial women traditionally came from the Fujiwara clan . The Shōwa-Tennō was the first monogamous ruler (from his grandfather, the Meiji-Tennō , a “stud book” is known in which the dates of the respective cohabitant were recorded).

In the “100 laws” ( Buke-hyakkajō ) of the Tokugawa period the following provision is found: “The emperor ( tenshi ) has twelve co-sleepers, the princes have eight, the typhoon five and the warriors two. People of lower standing have only one legitimate wife. "

In the Edo period, the officially registered cohabitation is therefore limited to the upper class. A distinction was made between main woman ( 本 妻 , honsai or 妻 , tsuma ) and secondary woman (s) ( 権 妻 , gonsai or 妾 , mekake ). However, it also happened in the common people, often also because the man gave a certain prostitute his special favor (this could then again be the reason for a divorce petition on the part of the woman's family).

Marriage initiation and conclusion

Traditionally, the selection of the spouse was seen as a task of the family ( 家 , ie ) or the (village) community. Heads of families were in control of their younger members. So that a marriage could come about, the consent of both families (heads) and the involvement of a mediator ( 媒妁 人 / 媒 酌 人 , baishakunin or 仲 人 , nakōdo - often a relative) were necessary. In some cases there were professional intermediaries who were paid. Many marriages took place within the village communities, so that one knew about the partners. Since the 19th century it has been customary for the mediator to organize “randomly” arranged meetings ( miai ) of potential marriage candidates. At least for the Edo period, it can be assumed that almost every adult Japanese was married.

There were regional differences in the view of when a marriage was (finally) valid. This could be the exchange of written agreements between the families involved, a sake drinking ceremony or the birth of the first child together. In individual communities, the external signs of a wife (certain hair style, blackened teeth , plucked eyebrows) were important.

The bride brought a dowry ( kashi or kagu ) dependent on the family's assets , which usually consisted of a chest of drawers ( 箪 笥 , tansu ) with clothes and tools ( 手 道具 , tedōgu ). A dowry that also included land ( 化粧 田 , keshō-den , also: 化粧 料 , keshō-ryō ) and money ( 持 参 金 , jisan-kin ) was rare. She was considered disreputable because it was suspected that the bride was unattractive or the groom's family was in financial difficulties. Sometimes an engagement fee ( 結 納 金 , yuinōkin ) was also paid. In the event of divorce, this dowry was to be returned, but only if the woman was not divorced “guilty” ( 罪過 , zaika ). Requests for restitution were often a point of contention in the divorce negotiations.

Men marrying out as yōshi ( 養子 , adopted sons) usually brought money or land, but no clothing, into their bride's household.

divorce

Divorce is commonly understood to be the legal dissolution of a marriage. Divorce is therefore not possible without an official marriage. What seems theoretically clear is rather ambivalent for the past, since the ideas and rules of what a marriage is changed over time and also differed from region to region.

Formally, the divorce took place by issuing a corresponding letter from the husband. These were called rienjō ( 離 縁 状 ) or mikudari-han ( 三行 半 ) d. H. "Three and a half liner", according to their usual length. Their issuance was not completely arbitrary by the man, but often at the request of the woman or her family. If there was no amicable divorce ( 和解 , wakai ) , pressure was often put on the man by the board of directors of the guilds or five-household group ( 五 人 組 , goningumi ). These letters of divorce usually also contained an approval for remarriage ( 再 縁 , saien or 再嫁 , saika ), which could take place immediately. The letters went out of use in the 1880s (the last known is from 1917).

As far as premodern data is available, it can be shown that divorces were significantly more common in eastern Japan and Tōhoku than in the west and Kyūshū . Furthermore, it can be seen that divorces were more frequent the lower the number of participants within society.

Reasons for divorce

For the first time, reasons for divorce - or better said reasons why a man could send his wife back to their parents' family ( 本家 , honke ) - were laid down in the Taihō Code (702). These were essentially those inherited from China with the Confucian system of family organization :

• Childlessness (infertility)
• infidelity
• Disobedience to the in-laws
• Gossip
• theft
• jealousy
• serious illness

An early example of how this was interpreted and applied can be found in the Nihon Ryōiki (around 800). In general, a marriage was considered dissolved even if the two partners were separated for three years. These regulations remained practically unchanged until the introduction of a civil code in 1898. Infidelity on the part of the man has been a recognized reason for divorce since 1927.

In today's BGB, only infidelity, malicious abandonment, incurable mental illness, absence of at least three years and other serious reasons are recognized as judicial grounds for divorce that make a divorce possible against the will of the other.

Child care

Around 1300 the principle emerged that child care was assigned to the respective partner depending on the gender of the children. On the other hand, there was the principle that the children stayed in the household in which they grew up. The latter became the more commonly used after 1750. Since around 1965, custody has passed to the mother in almost all cases. Regular child support payments are not customary (and difficult to collect in court); a corresponding amount is negotiated as a one-off severance payment in the context of the divorce.

Widows

Remarriage of widows was not welcomed. In some provinces it was common for women to shave their hair (like nuns) at the funeral of their husbands. If a widow did want to marry again (or was forced to marry for economic reasons), it was often necessary that she divorced the husband's family ( rikon ).

Historical development

Heian period

Anthropologists have classified marriage models in ancient Japan according to various factors, such as the couple's place of residence:

• viri- / patrilocal : the woman moved close to or directly into her husband's parents' house.
• uxori / matrilocal : the man moved into his wife's parents' house.
• neolokal : The couple moved into a completely new residence.
• Duo / natolocal : Both spouses lived separately from each other, the man visited his (second) wife occasionally ( visiting marriage ).

In the Heian period there were mainly uxorilocal, neolocal and - since polygamy was the rule, especially among the court aristocracy - natolocal rules for living sequence , virilocal were rare. Usually the man moved into the woman's household. The upbringing of the children was the task of the mother, but since she was often still very young, she was strongly supported by her parents. In the 12th century, when uxorilocal marriages became less and less common, men took on more financial obligations, along with the worsening social position of women.

Edo period

The state only intervened in the formalities of the marriage if reasons of state reasons made this necessary.

samurai

Within the class of samurai, which made up about 6-8% of the total population, the entering into marriage by vassals was dependent on the approval of the respective master if they had an income of over 100 koku , since the resulting family ties could be of political importance. The divorce rate was around 10–11% but was lower in the higher ranks.

Temple Register

Family registers for the people had already been introduced in the Nara period, but these had mostly been used to collect taxes and were no longer kept regularly with the collapse of central power. From 1670 an annual census of religious affiliation was mandatory. Every family and all its members had to be registered in a family register at their home temple ( 寺 請 制度 , terauke seido ). One daughter who was married left her family and was placed on the husband's family register.

Trial marriage

In western Japan in particular, it was common to postpone the official marriage announcement until a relationship was found to be stable (e.g. until pregnancy or the birth of the first child). Most of the divorces in Kantō and Tōhoku occurred in the first year and the more frequently the younger the partners were.

Divorce stamp

The few divorce stamps ( kakekomi-dera ( 駆 け 込 み 寺 ) or enkiri-dera ( 縁 切 り 寺 )) that enabled women to initiate a divorce of their own accord existed as such until 1875. As curiosities, they have received excessive attention in literature found. The best known are the Tōkei-ji in Kamakura (founded in the 13th century) and Mantoku-ji , which remained after 1762 . A woman who fled there was divorced after two years there. Usually, however, the temple office acted as an additional mediator to receive the "three and a half liner" from the husband (possibly head of the family). In fact, analysis of traditional temple registers from the 19th century has shown that almost all of the women came from nearby counties and that they accounted for only about 1% of the total number of temple divorces.

Divorce in court

There was the possibility to call the city magistrate ( machi bugyō ) or temple and shrine commissioner ( jisha bugyō ) in family matters . However, this usually worked towards an amicable settlement in the sense of maintaining the family system, or returned the case to the appropriate guilds or village communities. In addition, if a court decision was inevitable, both parties ran the risk of being arbitrarily punished by the judge for their behavior.

Meiji reforms

1871

With the introduction of the regulations on the family register in 1871 ( koseki ), which were now kept by the state, the beginning of a marriage was defined as the date of entry at the office. Until 1898 the head of the household could register, after which the explicit declaration of both spouses was necessary.

The implementation of this provision, which still applies today, was not immediately accepted by the people. Especially in the lower classes ( chūtō ika ) it was still common in the Taishō era to live together according to traditional ideas (without registration) as a "relationship" ( 内 縁 婚 , naienkon ), but this was viewed by the environment as a marriage. The proportion of naienkon is given in the statistics for 1920 as 16%, in 1940 7%, to almost disappear in the 1950s.

On the part of the state, certain hurdles have been set for professional soldiers and civil servants. B. built up the deposit of high security deposits before marriage. The proportion of divorces pronounced by courts was 0.002%. Even after 1898 the proportion remained below 1% until 1940.

BGB 1898

The Japanese Civil Code was introduced in 1898. After that, the minimum age at marriage was set at 17 for men and 15 for women, and bigamy (i.e. also the previously recognized cohabitation) was prohibited. Men under 30 and women under 25 needed parental consent.

The provisions of divorce have been standardized. The reasons for divorce were now: bigamy, adultery, culpable abandonment, mistreatment, defamation and conviction for certain offenses. The old principle that marriages can be dissolved by mutual consent, without grounds for divorce and without going to court, remained. Parents had to agree if one of the participants was under 25 years old.

Foreign observers of the early Meiji period often expressed surprise and - since many were missionaries in the country in terms of their puritanical background - often disapproving of the high divorce rate in Japan (1872: 3.39 / 1000 pop.) With the introduction of the Civil Code In 1898, the number of registered divorces halved within two years (from 2.87 / 1000 inh. To 1.50 / 1000 in.). The value continued to fall to 0.64 until the end of the war.

present

The post-war constitution brought not only equal rights for women, but also the introduction of special family courts that are also responsible for divorces. Men can marry from the age of 18 and women from the age of 16. Minors (under 20) need parental consent. For women, the restriction applies that remarriage ( 再婚 , saikon ) is prohibited for a period of six months after the dissolution of a previous marriage, in order to rule out an overlap of the periods for which a presumption of marital status of a child applies. The Japanese Supreme Court ruled this regulation constitutional, but in 2015 the court ruled otherwise that the law is unconstitutional but a waiting period of 100 days is appropriate. At the same time, the court ruled that there is no right to double names. "Beginning of marriage" is defined as registering the same with the competent authority. This can also be done by post. There is no formal ceremony required by the registry office.

Love marriage

The love marriage that emerged from the early 20th century, i.e. the free choice of partners by individuals, was the exception before 1945 and was sometimes ridiculed. Regarding the type of marriage initiation can be determined for the time Taishō era and 1936–45: love marriage 3 and 11 percent, meai marriage 38 and 51 percent, and arranged weddings without the partners having seen each other 40 and 24 percent. Nowadays the free choice of partner is the rule, but the more or less “random” arranged meeting of potential marriage candidates is still widespread.

The proportion of illegitimate children is low compared to Europe.

divorce

In Japan today, the law provides for three types of divorce:

1. Divorce by mutual agreement: It is done by making a joint declaration to the local authority, which must be confirmed by two adult witnesses.
2. Divorce through mediation in the family court: The parties agree to the proposed terms (e.g. on custody issues).
3. Divorce by court order or judgment: If no agreement can be reached, a corresponding court decision is made. An appeal against this person is permitted within two weeks. The next instance grants divorce if the legal conditions (infidelity, malicious abandonment, three years of missing a partner, etc.) are met.

In over 90 percent of the cases, the separation takes place amicably. The majority of divorces these days are initiated by wives. By 1999 the divorce rate rose to around 2 per 1,000 people.

Maintenance payments

Particularly in childless marriages, it is not common for the economically weaker party (i.e. almost always the woman) to be given permanent support. Normally a one-off severance payment is made, the amount of which is negotiable and depends on the length of the marriage and income.

Studies in 1992 showed that the household income of single mothers is around a third, for single widows almost half of the average.

On April 1, 2007, an amendment to the pension law came into force, which grants women a right to pension adjustment and puts them in a significantly better economic position. Especially among older and retired husbands, this sparked fears of a wave of divorce among the elderly.

See also

• Getting married in Japan
• Narita Rikon ("Narita Divorce")

literature

• Harald Fuess: Divorce in Japan. Family, Gender and the State 1600-2000. Stanford University Press, Stanford 2004, ISBN 0-8047-4357-6 (English).
• Harald Fuess: When Japan led the world. “The Land of Quick Marriage and Quick Divorce”, 1870–1940. In: News of the OAG . Year 2002, issue 171–172, pp. 75–92 ( PDF file; 176 kB; 18 pages on uni-hamburg.de).
• Wolfgang Humbert-Droz: Divorce law in Japan. Heymanns, Cologne 1985.
• Kojiro Iwasaki: Japanese Marriage Law. Roßberg, Leipzig 1904.
• Kikuchi Kan : love marriage custom. In news of the OAG. Volume 45–46, Tokyo 1938 (novella, translated by Hermann Bohner ).
• J. Kohler: Comparative Law Studies. About Chinese law (Japan). Appendix II: On Japanese marriage law. Berlin 1889.
• Yoko Tokuhiro: Marriage in Contemporary Japan. Routledge, London 2008 (English).
• Tanizaki Jun'ichirō : love and sensuality. Manesse, Zurich 2011, ISBN 978-3-7175-4080-9 (essay, translated and commented by Eduard Klopfenstein).

Individual evidence

1. ↑ Toby, R .; Why leave Nara? ; in Monumenta Nipponica Vol. 40 (1985), pp. 331-47
2. ^ Ramming; Japan manual; 1940, p. 130.
3. ↑ whole section: Fuess, Harald; Divorce in Japan , p. 12ff.
4. ↑ Fuess, p. 81.
5. ↑ Fuess, pp. 19ff, 58f
6. ↑ Charles Holcombe: Ritsuryō Confuzianism. In: Harvard Jnl Asian Stud. Volume 57, No. 2, 1997.
7. ^ II, 27 in the translation by Hermann Bohner .
8. ↑ jBGB (2006) § 770 (1).
9. ↑ Fuess, pp 91f, 156-63
10. ^ William H. McCullough: Japanese Marriage Institutions in the Heian Period. In: Harvard Journal of Asiatic Studies. Volume 27, 1967, pp. 103-167.
11. ↑ Fuess, p. 19.
12. ^ Ritsuryo
13. ↑ Fuess, chap. 3
14. ^ Wright, Diane: Severing the karmic ties that bind ... ; in: Monumenta Nipponica Vol. 52 (1997), No. 3
15. ↑ Fuess, p. 39ff.
16. ↑ Fuess, p. 29ff, citing the court files received.
17. ↑ valid today as Family Registration Act No. 224 of 1947
18. ↑ Fuess, p. 5, 11
19. ↑ Ōsugi Sakae
20. ↑ jBGB (1898) §765f
21. ↑ jBGB (1898) § 808-19
22. ↑ Fuess, p.3, Yuzawa Yasuhiko; Rikonritsu no suii to sono haikei in: Kōza kazoku Vol 4 1974, quoting
23. ↑ jBGB (2006) § 733; Supreme Court of December 5, 1995, Hanrei Jihō 1563m p. 81
24. ↑ Spiegel (2015): Court decision: Japanese women lose the fight against antiquated naming rights, http://www.spiegel.de/panorama/justiz/japanerinnen-verlieren-kampf-gegen-antiquierter-namensrecht-a-1068146.html
25. ↑ See the play by Kikuchi Kan : Love marriage custom. In news of the OAG. Volume 45–46, Tokyo 1938 (translated by Hermann Bohner ).
26. ^ Sepp Linhart in: H. Hammitzsch : Japan-Handbuch. Wiesbaden 1981, keyword family.
27. ↑ jBGB in the version of 2006: §§ 731 ff - marriage; §§ 763 ff - Divorce.
28. ↑ Kodansha Encyclopedia of Japan. Tokyo 1983, keyword divorce .
29. ↑ Fuess, Chapter 7.
30. ↑ DIJ Japan Studies 2007, p. 169.