Civil Code (Part IV) selected provisions

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1 Civil Code (Part IV) selected provisions (English translation is from the Japanese government s Japanese Law Translation website ( except provisions in square brackets (which have been translated by speaker and reflect 2011 amendments to the Civil Code) Part IV Relatives Chapter I General Provisions (Range of Relatives) Article 725 The following persons shall be relatives (i) a relative by blood within the sixth degree (ii) A spouse; and (iii) a relative by affinity within the third degree. (Relationship through Adoption) Article 727 From the time of adoption, the relationship between an adopted child and an adoptive parent (and his/her relative by blood) shall be deemed to be the same as that between relatives by blood. Chapter II Marriage (Notification of Marriage) Article 739 (1) Marriage shall take effect upon notification pursuant to the Family Register Act (Act No. 224 of 1947). (2) The notification in the preceding paragraph shall be given by document with the signatures of both parties and not less than two adult witnesses, or given orally by these persons. (Marriage between Japanese Nationals in Foreign Country) Article 741 Two Japanese nationals in a foreign country who intend to marry may give notification to the Japanese ambassador a minister of legation or consul stationed in that country. In this case, the provisions of the preceding two Articles shall apply mutatis mutandis. (Surname of Husband and Wife) Article 750 A husband and wife shall adopt the surname of the husband or wife in accordance with that which is decided at the time of marriage. (Duty to Live Together, Cooperate, and Provide Mutual Assistance) Article 752 A husband and wife shall live together and provide mutual 1

2 cooperation and assistance. (Right to Rescind Contract between Husband and Wife) Article 754 Either husband or wife may at any time during marriage rescind a contract between husband and wife; provided, however, that this may not harm the rights of a third party. (Sharing of Living Expenses) Article 760 A husband and wife shall share the expenses that arise from the marriage taking into account their property, income, and all other circumstances. (Joint and Several Liability for Debts incurred for Household Necessities) Article 761 If one party to a marriage engages in a juristic act with a third party regarding everyday household matters, the other party shall be jointly and severally liable for debts that arise from that act; provided that this shall not apply if prior notice is given to the third party to the effect that the other party will not assume such liability. (Ownership of Property between Husband and Wife) Article 762 (1) Property owned by one party before marriage and property obtained in the name of that party during marriage shall be separate property (property owned singularly by one party to a marriage). (2) Property that does not clearly belong to either husband or wife shall be presumed to be held in co-ownership. Section 4 Divorce Subsection 1 Divorce by Agreement (Divorce by Agreement) Article 763 A husband and wife may divorce by agreement. (Application Mutatis Mutandis of Marriage Provisions) Article 764 The provisions of Articles 738, 739, and 747 shall apply mutatis mutandis to divorce by agreement. (Determination of Matters regarding Custody of Child after Divorce etc.) Article 766 (1) If parents divorce by agreement, the matter of who will have custody over a child[, visitation and other forms of contact between the father or mother and the child, the allocation of expenses of custody,] and any other necessary matters regarding custody shall be determined by that agreement. 2

3 [In such an instance, the best interests of the child must be the primary consideration.] (2) If agreement [pursuant to the preceding paragraph] has not been made, or cannot be made, this shall be determined by the family court. (3) If the family court finds it necessary for the child's interests, it may change who will take custody over the child and order any other proper disposition regarding custody. (4) The rights and duties of parents beyond the scope of custody may not be altered by the provisions of the preceding [three] paragraphs. (Distribution of Property) Article 768 (1) One party to a divorce by agreement may claim a distribution of property from the other party. (2) If the parties do not, or cannot, settle on agreement with regard to the distribution of property pursuant to the provision of the preceding paragraph, either party may make a claim to the family court for a disposition in lieu of agreement; provided that this claim for distribution of property shall be extinguished at the expiration of two years from the day of divorce. (3) In the case referred to in the preceding paragraph, the family court shall determine whether to make a distribution, and the amount and method of that distribution, taking into account the amount of property obtained through the cooperation of both parties and all other circumstances. Subsection 2 Judicial Divorce (Judicial Divorce) Article 770 (1) Only in the cases stated in the following items may either husband or wife file a suit for divorce: (i) if a spouse has committed an act of unchastity; (ii) if abandoned by a spouse in bad faith; (iii) if it is not clear whether a spouse is dead or alive for not less than three years; (iv) if a spouse is suffering from severe mental illness and there is no prospect of recovery; or (v) if there is any other grave cause making it difficult to continue the marriage. (2) A court may dismiss a suit for divorce if it finds continuing the marriage reasonable taking into account all circumstances, even in the case where there is a cause listed in items (i) to (iv) inclusive of the preceding paragraph. (Application Mutatis Mutandis of Divorce by Agreement Provisions) 3

4 Article 771 The provisions of Articles 766 to 769 inclusive shall apply mutatis mutandis to the case of judicial divorce. Chapter III Parent and Child (Presumption of Child in Wedlock) Article 772 (1) A child conceived by a wife during marriage shall be presumed to be a child of her husband. (2) A child born after 200 days from the formation of marriage or within 300 days of the day of the dissolution or rescission of marriage shall be presumed to have been conceived during marriage. (Child's Surname) Article 790 (1) A child in wedlock shall take the surname of his/her parents; provided that if the parents divorce before the child is born, the child shall take the surname of his/her parents at the time of divorce. (2) A child out of wedlock shall take the surname of his/her mother. Section 2 Adoption Subsection 1 Requirements for Adoption (Age of Adoptive Parent) Article 792 A person who has attained the age of majority may adopt another as his/her child. (Adoption of Minor) Article 798 Where a person to be adopted is a minor, the permission of the family court shall be obtained; provided that this shall not apply in the cases where the person to be adopted is a lineal descendant of either the adoptive parent or the adoptive parent's spouse. (Application Mutatis Mutandis of Marriage Provisions) Article 799 The provisions of Article 738 and Article 739 shall apply mutatis mutandis to adoption. (Formalities for Adoption between Japanese Nationals in Foreign Country) Article 801 If a Japanese national in a foreign country intends to adopt, or to be adopted by, another Japanese national in that country, notification of adoption may be made to the Japanese ambassador, minister or consul acting in that country. In this case, the provisions of Article 739 applied mutatis mutandis to Article 799 and the provision of the preceding Article shall apply mutatis mutandis. 4

5 (Acquisition of Status of Child in wedlock) Article 809 An adopted child acquires the status of a child in wedlock of his/her adoptive parent(s) from the time of adoption. (Surname of Adopted Child) Article 810 An adopted child shall take the surname of his/her adoptive parent(s); provided that this shall not apply to an adopted child who has changed his/her surname by marriage and continues to use the surname determined at the time of marriage. Chapter IV Parental Authority Section 1 General Provisions (Person Who Has Parental Authority) Article 818 (1) A child who has not attained the age of majority shall be subject to the parental authority of his/her parents. (2) If a child is an adopted child, he/she shall be subject to the parental authority of his/her adoptive parents. (3) Parental authority shall be exercised jointly by married parents; provided that if either parent is incapable of exercising parental authority, the other parent shall do so. (Person Who Has Parental Authority in the Case of Divorce or Recognition) Article 819 (1) If parents divorce by agreement, they may agree upon which parent shall have parental authority in relation to a child. (2) In the case of judicial divorce, the court shall determine which parent shall have parental authority. (3) In the case where parents divorce before the birth of a child, the mother shall exercise parental rights and duties; provided that the parties may agree that the father shall have parental authority after the child is born. (4) A father shall only exercise parental authority with regard to a child of his that he has affiliated if both parents agree that he shall have parental authority. (5) When the parents do not, or cannot, make the agreements referred to in paragraph (1), paragraph (3), and the preceding paragraph, the family court may, on the application of the father or the mother, make a ruling in lieu of agreement. (6) The family court may, on the application of any relative of the child, rule that the other parent shall have parental authority in relation to the child if it finds it necessary for the interests of the child. 5

6 Section 2 Effect of Parental Authority (Right and Duty of Care and Education) Article 820 A person who exercises parental authority holds the right, and bears the duty, to care for and educate the child [in the interest of the child]. (Determination of Residence) Article 821 Residence of a child shall be determined by a person who exercises parental authority. (Permission for Occupation) Article 823 (1) A child may not have an occupation without the permission of a person who exercises parental authority. (2) A person who exercises parental authority may revoke or limit the permission referred to in the preceding paragraph in the case referred to in paragraph (2) of Article 6. (Administration and Representation over Property) Article 824 A person who exercises parental authority shall administer the property of the child and represent the child in any legal juristic act in respect of the child's property; provided, however, that if an obligation requiring an act of the child is to be created, the consent of the child shall be obtained. (Effect of Acts Done by One Parent in the Name of Both Parents) Article 825 Where parents exercise parental authority jointly and one parent, in the name of both parents, performs a juristic act on behalf of a child, or give his/her consent for the child to perform a juristic act, the effect of that act shall not be prevented, even if it is contrary to the intention of the other parent; provided, however, that this shall not apply if the other party has knowledge. Family Register Act selected provisions (source of translation: same as above) Chapter I General Provisions Article 1 (1) Clerical work related to family registers shall be administered by the mayor of the municipality. (2) {omitted} 6

7 Article 3 (1) The Ministry of Justice may set standards with which the mayors of municipalities must comply in the course of processing any clerical work related to family registers. (2) When the head of the Legal Affairs Bureau or District Legal Affairs Bureau with jurisdiction over the location of a city office or town/village office finds it necessary to the processing of clerical work related to family registers, he/she may request reports from or give advice or make recommendations to the mayor of a municipality. In this case, the head of such bureau may give instructions to the mayor of a municipality when he/she finds it particularly necessary to ensure proper processing of clerical work related to family registers. (3) {omitted} Chapter II Family Register Book Article 6 A family register shall be created for each unit consisting of a husband and wife, and any children thereof with the same surname, who have their registered domicile within the area of a municipality; provided, however, that when a new family register is created for a person who has entered into marriage with a person who is not a Japanese national (hereinafter referred to as a "foreign national"), or for a person who does not have a spouse, it shall be created for each unit consisting of such person and any children thereof with the same surname. Chapter III Entries in a Family Register Article 13 In addition to the registered domicile, the following matters shall be entered in a family register for each person in the family register: (i) his/her name; (ii) his/her date of birth; (iii) the cause and date of his/her entry in the family register; (iv) the names of his/her natural parents and his/her relationship with his/her natural parents; (v) in the case of an adopted child, the name(s) of his/her adoptive parent(s) and his/her relationship with his/her adoptive parent(s); (vi) for a husband and wife, a statement that they are husband and wife; (vii) for a person whose name has been moved from another family register, reference to the former family register; and (viii) other matters specified by Ordinance of the Ministry of Justice. Article 14 (1) Names shall be entered in the following order: First: the name of the husband when the husband and wife take the husband's surname, or the name of the wife when they take the wife's surname; 7

8 Second: the name of the spouse; Third: the name(s) of any child(ren). (2) The names of any children shall be entered in the order of their birth. (3) The name of a person for whom the cause of entry in a family register has occurred after the family register was created shall be entered at the end of the family register. Article 15 Entries in a family register shall be made based on a notification, a report, an application, a request or commission, a certified copy of a certificate or of a logbook, or a judicial decision. Article 16 (1) When a notification of marriage is made, a new family register shall be created for the husband and wife; provided, however, that this shall not apply where the husband and wife take the husband's surname and the husband's name is entered at the head of his family register, or where they take the wife's surname and the wife's name is entered at the head of her family register. (2) In the case referred to in the proviso to the preceding paragraph, the name of the wife who takes her husband's surname shall be entered in the husband's family register, and the name of the husband who takes his wife's surname shall be entered in the wife's family register. (3) When a notification of marriage between a Japanese national and a foreign national is made, a new family register shall be created for the Japanese national; provided, however, that this shall not apply where the Japanese national is entered at the head of his/her family register. Article 17 When a person other than the person entered at the head of a family register and his/her spouse comes to have a child or adopted child who takes the same surname as his/her, a new family register shall be created for that person. Article 18 (1) The name of a child who takes the surname of his/her parents shall be entered in the parents' family register. (2) Except for the case referred to in the preceding paragraph, the name of a child who takes the surname of his/her father shall be entered in the father's family register, and the name of a child who takes the surname of his/her mother shall be entered in the mother's family register. (3) The name of an adopted child shall be entered in the family register of his/her adoptive parent(s). Article 21 (1) A person who has attained the age of majority may separate from his/her family register; provided, however, that this shall not apply to the person entered at the head of a family register and his/her spouse. (2) When a notification of separation from a family register has been submitted, a new 8

9 family register shall be created. Article 40 A Japanese national who is living in a foreign country may submit a notification to the Japanese ambassador, minister, or consul stationed in that country, in accordance with the provisions of this Act. Article 41 (1) When a Japanese national who is living in a foreign country has, in accordance with the formalities of that country, caused a certificate to be made with regard to an event under notification, he/she shall submit a copy of said certificate to the Japanese ambassador, minister, or consul stationed in that country within three months. (2) Where there is no ambassador, minister or consul stationed in that country, the Japanese national shall send a copy of the certificate to the mayor of the municipality in the locality of his/her registered domicile within three months. Section 6 Marriage Article 74 Persons who wish to marry shall submit a notification to that effect, entering the following matters in the written notification: (i) the surname that the husband and wife will take; and (ii) other matters specified by Ordinance of the Ministry of Justice. Section 7 Divorce Article 76 Persons who wish to divorce shall submit a notification to that effect, entering the following matters in the written notification: (i) the name of the party who will have parental authority, and the name of the child(ren) who will be subject to that party's parental authority; and (ii) other matters specified by Ordinance of the Ministry of Justice. Article 77 (1) The provisions of Article 63 shall apply mutatis mutandis to the case where a judicial decision of divorce or annulment of a divorce has become final and binding. (2) The following matters shall also be entered in a written notification regarding a divorce as set forth in the preceding paragraph: (i) the name of the party who will have parental authority, and the name of the child(ren) who will be subject to that party's parental authority; and (ii) other matters specified by Ordinance of the Ministry of Justice. Section 8 Parental Authority and Guardianship over Minors Article 78 Persons who intend to determine the party who will have parental authority by agreement pursuant to the proviso to Article 819, paragraph (3) or paragraph (4) of said 9

10 Article of the Civil Code shall submit a notification to that effect. Article 79 The provisions of Article 63, paragraph (1) shall apply mutatis mutandis to the person who has parental authority in the case where a judicial decision in lieu of an agreement as set forth in the proviso to Article 819, paragraph (3) or paragraph (4) of said Article of the Civil Code has become final and binding or where a judicial decision changing the party who has parental authority has become final and binding, or in the case where either of the parents has been issued an adjudication of loss of parental authority or loss of the right to administer property and the other parent has been vested with such authority or right, and shall apply mutatis mutandis to the person who demanded the judicial decision in the case where a judicial decision revoking an adjudication of loss of parental authority or loss of the right to administer property has become final and binding. Section 14 Acquisition or Loss of Japanese Nationality Article 103 (1) A notification of the loss of Japanese nationality shall be submitted by the party to the event under notification, or his/her spouse or relative within the fourth degree of kinship, within one month from the day on which such person became aware of the fact of loss of Japanese nationality (when the person who should submit the notification was abroad on the day on which he/she became aware of the fact, within three months from that day). (2) The following matters shall be entered in a written notification, and a document certifying the loss of Japanese nationality shall be attached thereto: (i) the cause and date of the loss of Japanese nationality; and (ii) when the person has newly acquired nationality in a foreign country, such nationality. 10