Marriage and Divorce Laws of the World Part 16

Before filing the formal pet.i.tion the complainant must personally attend before the district judge and state the facts, after which it is the duty of the judge to attempt a reconciliation of the parties. The complainant must appear without counsel or relatives. The judge next orders both parties to appear before him without counsel or relatives in the further endeavour to effect a reconciliation.

If a reconciliation appears to be impossible the formal pet.i.tion for divorce is then filed with the court.

All suits for divorce are heard _in camera_, and the public prosecutor must attend.

EFFECTS OF DIVORCE.--In so far as the innocent party is not able to support himself or herself out of his or her income the guilty party is bound, if able, to provide support.

Except when it appears to the court that justice otherwise requires, the custody of the children is given to the successful suitor.

The innocent party retains all gifts made to him or her by the other and the guilty party loses them all.

Both parties are free to contract a new marriage.

JUDICIAL SEPARATION.--A separation from bed and board may be granted on the same grounds as ent.i.tle a party to an absolute divorce. Such a separation may also be judicially granted by consent of both spouses.

After a judicial separation has existed for five years either of the parties may pet.i.tion the court to enlarge the decree of separation into a decree of absolute divorce.

CHAPTER XVII.

THE j.a.pANESE CIVIL CODE.

The East and the West, the Past and the Present, meet in the j.a.panese Civil Code, which became law in January, 1893.

It is the first codification of private law that j.a.pan ever had in her long history. Up to that time the basis of j.a.panese laws and inst.i.tutions was Chinese moral philosophy, ancestor wors.h.i.+p and the old feudal system.

The Criminal Code of j.a.pan (_s.h.i.+n-ritsu-koryo_), enacted in 1870, was the last legal code founded on Chinese philosophy, customs and traditions, and the Revised Criminal Code (_Kaitei-Ritsurei_) is the first group of j.a.panese laws based upon European jurisprudence and civilization.

Three periods may be marked in the history of j.a.pan with regard to the legal aspect of the marriage relation. The first was the ancient j.a.panese period, the second the Chinese period, and the third, the present, that of modern j.a.pan.

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 j.a.pan 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 j.a.panese law.

Under the Civil Code husband and wife are now on an equal footing, except when consideration for their common domestic life requires some modifications.

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 j.a.panese 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 husband.

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 j.a.pan is divided into five books, but it is only with Book IV., which deals with the "Family," that we are at present concerned.

A summary of the present marriage and divorce law of j.a.pan, 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 delivery.

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 relations.h.i.+p 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 relations.h.i.+p 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 doc.u.ment.

If a j.a.panese couple in a foreign country contract a marriage between themselves they may give the notification of their marriage to the j.a.panese minister or consul stationed in such country.