Divorce, Japanese Style

By Julia Caranci

When "I do" becomes "I don't, and I'll take half that pension too"

Thousands of Japanese women are eagerly waiting to pull off their wedding rings on April 1.

Or so it would seem as a major law reform is set to take place in Japan beginning next year - a landmark amendment that is causing some controversy. While some say it is a change that will bring fairness to a system traditionally weighted in favour of men, critics say it will take money from hard-working men and hand it over to undeserving women.

As of April 1, 2007, divorced women in Japan will be entitled to up to half of the benefits from their ex-husband's Employees' Pension, a scheme to which most workers belong and which operates in tandem with the mandatory National Pension.

The pension system was introduced in Japan when most wives of salaried workers were filling more traditional roles as homemakers and did not work outside of the home. At that time, divorce was much less common than it is today.

Under current law, if a Japanese couple divorces, the ex-husband receives his entire Employees' Pension, in addition to his National Pension. However, his ex-wife can qualify only to receive her own National Pension. This causes tremendous difficulties for divorced women in Japan, who tend to come out of divorces with less resources and fewer options.

Divorce Fact

Submitting the single form required for divorce by mutual consent does not require both spouses to show up in person, nor does it require proof that the other party actually signed or stamped (with an inkan/hanko) the application, making forgery of divorce forms which also give sole child custody to the forger, very easy.

Mothers retain custody of the children after divorce in the vast majority of cases, while the non-custodial parent (usually the man) often has little or no contact with the children after the split as joint custody is generally regarded as undesirable in Japan. (One famous case of recent years was ex-prime minister Koizumi Junichiro, who has three sons. After he split with his wife in 1982, he had custody of the elder two sons, who were raised by his sister and have not since seen their mother. She retained custody of the youngest, who was born after the breakup and has never met his father.)

"It's the Japanese general understanding that if they divorce, the noncustodial parent won't be able to see the kid again," says Tokyo divorce lawyer Hiroshi Shibuya, who handles some of the rare cases that are contested. "It's as if the child loses a parent in an accident, as if that parent just dies."

Child support is not normally provided to the ex-wife, meaning she must take on the expense of raising the children herself. This lack of financial support, coupled with little job experience, forces many divorced mothers to move back in with their parents. The result has been an increasing number of divorced Japanese mothers living in poverty regardless of their ex-husband's financial status.

Recent cuts to Japan's social welfare system are also taking their toll on single-parent families in Japan. Divorced elderly women struggle financially as well, as they often lack the employability and skills to earn a decent living and must survive on the National Pension.

While women are entering the work force in Japan in greater numbers than ever before, the glass ceiling still exists. Japanese women do not occupy the power seats of most large corporations in Japan, although the system is slowly changing.

Shigenori Matsui, an expert on Japanese Law at the University of British Columbia, explained that in Japan, divorced women face tremendous economic challenges because all assets belonging to the husband are his alone and divorced women can only claim for division of these assets during divorce proceedings. It is often very difficult for a woman to receive a settlement that is sufficient to support her life after divorce, he said.

Matsui believes the fundamental problem may be the absence of a shared property system among couples when marriages end. The pension amendment is part of the move towards a system that offers more security and options to women and children.

So how will the new system work?

Matsui said the amendment will allow divorced women to receive up to half of their ex-husbands' Employee Pension paid in during the period of their marriage, if the divorce takes place after April 1 and if there is agreement regarding how the funds will be split. Where there is no agreement, there will be the option of taking the case to the courts, he said.