DIVORCE.
Frequency of divorces—The new Civil Code on marriage
and divorce—Conditions of a valid marriage—Invalid
marriages—Cohabitation—The wife’s legal position—Her
separate property—The rights of the head of the family—Care
of the wife’s property—Forms of divorce—Grounds for divorce—Custody
of children—No damages against the co-respondent—Breaches of
promise of marriage—Few mercenary marriages—Widow-hunting also rare.
In the old days divorces took place on the slightest pretext. Among
the higher classes, it is true, the family connections which a
marriage brought into existence could not be dissolved without more
or less serious consequences, and the parties were, as in other
countries, expected to sacrifice their personal happiness to family
considerations; but among the other classes which were not influenced,
as a rule, by such worldly motives in their marriages, divorces were
of pretty frequent occurrence. And moreover, as they often took place
from no fault of the persons divorced, they came to lose to some
extent the stigma which usually attaches to them. Still, those women
who had been brought up with a strict, old-world sense of honour,
looked upon divorce as a stain upon their reputation; for if it did
not necessarily imply misconduct, it was attributable to want of tact
on the part of the _divorcée_, and although it arose not unfrequently
from the husband’s caprice, she was not, until that could be proved,
held altogether free from blame. As she was from the first supposed to
be prepared for a wilful, cross-tempered mother-in-law, it signified
a certain defect in her character that she should have failed to get
into her good graces; and the girl, therefore, ashamed to be exposed
to the ignominy of divorce, did her best to please her husband’s
family and would put up with almost anything rather than be sent away.
But the family relations sometimes became so strained that she
ran away or was packed home. Divorce was, moreover, easy to effect;
it needed nothing more than the re-transfer of the divorced wife’s
domicile from her husband’s home to her father’s. There was no
official inquiry, and a remarriage could take place at any time.
This unsatisfactory state of affairs was to a certain extent remedied
by the new Civil Code which came into operation in 1898, though it is
too early yet to say what permanent reform it has brought about in our
system of marriage and divorce; and it may be well, before entering
into the grounds on which a divorce may be sought under the new law,
to consider the conditions requisite for a valid marriage as they will
give some idea of the position taken by the legislature in regard
to matrimonial relations and so help us to understand its attitude
towards divorce.
A marriage, in the first place, is valid only if the parties are
married of their own will. This condition may at first sight appear
superfluous; but it is formulated to enable the parties concerned to
nullify a marriage contracted through mistaken identity and to prevent
unions with persons who have lost control of their will or are
otherwise in a disordered state of mind. Only such marriages are valid
as are contracted between those who are not deceived in making their
choice and are in full possession of their faculties. The object of
this condition is then to protect those persons who are joined in
wedlock against their will; but, as a matter of fact, many marriages
are arranged by the parents before their children are old enough to
know their own minds, and the betrothed, upon coming of age, acquiesce
in the engagement which they would consider unfilial to refuse to
carry out. So that in many cases free will in marriage is merely
formal. The second condition of a valid marriage is that it must be
reported and registered at the local district office. The bride’s
father reports to the local office of his district that she has ceased
to be a member of his family and requests her name to be struck off
and transferred to the local office of the district in which her
husband lives. This is accordingly done, and at the same time the
husband’s report confirms the father’s request and the girl’s name
is registered as that of his wife. This transfer of the domicile
constitutes the official act of marriage.
A defect in either of these two conditions naturally renders a
marriage void, for it cannot then be recognised as a lawful union. But
a marriage may subsequently to its registration be annulled in various
ways. Such annulment is not, however, a divorce, because the marriage
was not complete and cannot be said to have been consummated. In the
first place, the parties must be of the legal age for marriage, which
is for the male seventeen years and fifteen for the female. This is a
great advance on the old limit which was fourteen years for the male
and twelve for the female. The right of annulling a marriage in which
either party is under the legal age expires in three months after the
marriage or when the age-limit is reached. Marriages contracted by
force or fraud may be annulled upon application by the victim. The
application must be made to a court of justice within three months
after the discovery of the fraud or removal of the force; the right
of application is forfeited by condonation. A marriage is naturally
invalidated by a previous marriage; the right of application for its
annulment is vested in the aggrieved party, the head of that party’s
family, the relatives, and the public procurator, and also in the
first wife or husband; and as bigamy is a criminal offence, there
is no time-limit for the application. One who has been judicially
divorced for adultery cannot marry the other party to the offence;
that is, marriage is forbidden between the respondent and the
co-respondent. It may appear somewhat unjust that a man whose conduct
has led to the divorce of a married woman should be disqualified from
making to her the only reparation in his power for her loss of home
and honour; but the idea is, as in the Scots law, that the ability to
marry each other would rather encourage such illicit connections and
make the offenders brave the ignominy of judicial divorce for the
prospective pleasure of a lawful union. The prohibition is therefore
intended to be a deterrent against infidelity. Marriage is also
forbidden between ascendants and descendants in the direct line
and between those down to the third degree of consanguinity in the
collateral line, that is, it is prohibited with one’s parents,
grand-parents, children, and grandchildren, and between brother and
sister, uncle and niece, and aunt and nephew, but permitted between
cousins-german and more distant blood-relations. It is also
prohibited between similar relations of affinity in the direct line,
but not between those in the collateral line, so that while one cannot
marry a parent or a child of one’s deceased spouse, there is no
impediment to a marriage with the deceased wife’s sister or the
deceased husband’s brother, or their uncle, aunt, nephew, or niece.
A son up to thirty years of age and a daughter up to twenty-five years
cannot marry without the consent of their parents. If either parent is
dead, irresponsible, or has left the house, the consent of the other
is deemed sufficient; but if both parents are dead or of unsound mind,
or if their whereabouts are unknown, only those parties who have not
yet reached the majority-age of twenty need ask for the consent of
their guardians or appeal to the family council for approval. If the
parties are afflicted with a stepfather or stepmother who refuses to
consent to their marriage, the approval of the family council will
suffice as these persons cannot always be presumed to have at heart
the interests of their step-children. A woman cannot for obvious
reasons remarry until after the lapse of six months from the annulment
or dissolution of her first marriage; but if in the interval she gives
birth to a child, there is no hindrance to the second marriage taking
place immediately after. Lastly, in the case of a man who has been
adopted as husband to the daughter, the severance of his connection as
adopted son may be brought forward as a ground for the avoidance of
the marriage. As he has twofold relations as son and husband, the
dissolution of either relation would lead to that of the other, for
the only alternative would be for the daughter to leave her family at
the same time as her husband; but as it was to keep her in the family
that the husband was adopted, her father would not consent to such a
step. The usual procedure is to adopt for her another husband.
Upon the consummation of marriage, the wife is obliged to live
with her husband, who is required by the Civil Code to make her
cohabit with him. Thus, cohabitation is in the eyes of the law an
indispensable condition of matrimony; and therefore, such a thing as
judicial separation is unknown in Japan, and there is no middle course
between cohabitation and divorce. The wife usually takes her
husband’s surname; but if she is the head of the family or the
heiress to it, the husband by adoption assumes her surname.
If the wife is under age or judicially pronounced incapable of
managing her own affairs, the husband becomes her guardian for the
time being; but if the husband is pronounced incapable in a similar
manner, the wife becomes his guardian and takes charge of his affairs.
The wife, however, in ordinary circumstances is under the husband’s
control. Her disabilities arise not from her sex as such, but from her
status of _feme-covert_; for though political rights are still denied
to women, no discrimination is made in the private rights of the two
sexes. It is only when she marries that she cedes to her husband many
of her rights as _feme-sole_. There are certain acts, for instance,
for which she is required by the Civil Code to obtain her husband’s
permission, such as the receipt and use of a capital sum, contracting
of debts, bringing of actions at court, carrying on of a trade or
business on her own account, and making of contracts binding herself
to service for a specific term; but the permission may be dispensed
with if her husband’s whereabouts are unknown, or he has wilfully
deserted her, is pronounced incapable, is under restraint for lunacy,
or is serving a term of imprisonment exceeding one year, or if his
interests clash with hers.
The wife may have separate property. She is at liberty to make any
arrangement with her husband for its management and disposal; but such
arrangement must be registered not later than the registration of the
marriage itself, or it cannot be upheld before her heirs or set up
against third parties. In fact, all contracts between husband and wife
may by mutual consent be altered or cancelled at any time; but such
alteration or cancellation cannot be upheld to the prejudice of a
third party. This right to hold property in her own name is a great
concession to the wife, for such rights were formerly utterly ignored.
In the old days, everything belonged to the husband as head of the
family, not only any property that the wife might bring or inherit,
but also any estate, real or personal, that might be acquired by any
other member of the family. All its members were supposed to work for
the benefit of the family, and the head as its sole representative
had absolute control of the property so acquired. But now in
recognition of the rights of the individual as against those of the
family as a whole, the Civil Code permits the separate registration
of property by its subordinate members.
Where no special arrangements have been made between husband and wife
with respect to either party’s property the law directs a certain
course to be followed in its use and disposal. In the first place,
while the owner of any property is naturally deemed to possess
absolute right to the interest or profit arising therefrom, any
property which has been acquired but cannot be definitely credited
to either party, is to be taken, pending production of proof to the
contrary, as belonging to the head of the family. The head has also
the right to put to use the other party’s property and derive profit
therefrom, provided the character of such property remains unaltered.
Thus, the head may cultivate the other’s fields or rent them to
a tenant and occupy or rent the other’s houses, but may not, for
instance, convert a field into building land or a dwelling-house into
a godown. This power is given to the head to offset the obligation he
or she is under to bear all expenses resulting from the marriage, that
is, to defray all household expenses, support the family, and pay for
the bringing up of the children. If, however, the head is in needy
circumstances, the other party, if possessed of separate property,
must support the family.
The husband, whether head of the family or not, has the management of
his wife’s property. He may make improvements in it; but he cannot
without her consent rent her land for more than five years running
or her house for more than three. And if the wife is afraid of her
husband’s abusing this discretionary power, she may request the
judicial authorities to order him to deposit security against any loss
that the estate might suffer through his mismanagement. The wife is to
be considered as her husband’s agent in household matters, such as the
provision of food and raiment. The husband may, however, reserve the
right to repudiate partially or wholly her acts as his proxy; but he
cannot thereby cancel his obligations to those persons who have been
dealing with her in good faith, believing her to possess the powers
usually delegated to the wife.
Having thus given an outline of woman’s legal position in matrimony,
we may now pass on to the conditions of divorce. The laxity of
the custom in regard to divorce was, as we have already observed,
partially remedied by the new Civil Code, which is based on European
laws and modified by existing Japanese usages. In the matter of
divorce, it makes many concessions to the customs hitherto prevailing
in Japan, as a strict adhesion to the European laws on the subject
would call for a too drastic change in the habits of the people who
have for the most part been accustomed to think lightly of divorce.
In the old times it was sufficient to give the wife a declaration of
divorce, which, from its shortness, came to be known as “the three
lines and a half.”
In these days, however, when the supremacy of law is universally
recognised, such an informal process cannot be tolerated; and
formalities as full as at marriage must be gone through. For divorce
in its simplest form judicial intervention is not needed. It is enough
that the parties agree to separate. All that is necessary is to make
a declaration attested by two reputable witnesses at the local office
that the divorce takes place by mutual consent. If there is sufficient
cause which would be recognised by a court of justice, the offending
party would readily consent to this form of divorce, for few people
would care to wash their soiled linen in public when the same end
could be gained more quietly in private. Hence, judicial divorces
are comparatively rare. The attestation of two witnesses is of
considerable use in preventing rash divorces made in a moment of
passion and repented immediately after, as the witnesses who may be
expected to be cooler-headed than the principals, would do their best
to patch up the quarrel or difference before finally setting their
seal and signature to the deed of divorce. Moreover, if the parties
are under twenty-five years of age, they must obtain the consent of
those persons, that is, parents, guardians, or family councils, whose
consent would be necessary for a marriage in which the bride is under
twenty-five years of age and the bridegroom under thirty. In a divorce
the domicile of the wife or the adopted husband is re-transferred from
the domicile of the family into which they were married to that
of their original family; the process is reverse of that required upon
marriage. In a divorce by mutual consent the request for re-transfer
is voluntarily made by the parties concerned, while in a judicial
divorce, since the appeal to law is made in consequence of the refusal
of one of the parties to sign the request to the local office, the
re-transfer is made by order of the court.
Judicial divorces are granted on several grounds. First, for bigamy.
Bigamy is punishable with penal servitude for a term not exceeding two
years, and the second marriage is annulled; but the offence may
also be made the ground for the dissolution of the first. Thus, the
bigamist may, when he has served his term, find himself single and be
ready for a third marriage. Secondly, the wife may be divorced for
adultery, but not the husband. He may be divorced if he is convicted
of adultery with a married woman. The unfaithful wife and her paramour
are liable to penal servitude for a term not exceeding two years if
the charge is brought by the outraged husband. The lover cannot be
punished alone; the woman must share his fate; and only such a lover’s
wife can bring a divorce suit for adultery against her husband. But it
is very seldom that the husband applies for divorce from his wife
on the score of infidelity; such divorces are generally effected
by mutual consent unless the husband is ready to expose his family
affairs for the mere gratification of wreaking vengeance. The
delinquent wife, if brought before court, is, as has already been
stated, both punished and debarred from marrying her paramour. Besides
infidelity with a married woman, the husband, may be divorced for
immoral crimes. Divorce may also be sought if the other party is
guilty of forgery, theft, burglary, fraud, embezzlement, and other
heinous crimes. As the guilty party is usually the husband, the wife
may refuse to live any longer with one who has brought dishonour upon
the family. She may also bring an action for divorce if her husband
is imprisoned for three years or more for offences other than those
mentioned above or if she has been so ill treated or grossly insulted
by him as to make cohabitation intolerable.
The common custom in Japan of the couple living under one roof
with the parents of either party is doubtless responsible for two
other grounds for divorce, which are that an action for divorce lies
if either party ill-treats or grossly insults the ascendants of the
other or is ill treated or grossly insulted by them. Thus, without
there being any strained relations between the couple themselves,
either of them may seek divorce if ill treated or grossly insulted
by the parents or grand-parents of the other, or be sued for it if
similar treatment is offered to them. Mothers-in-law are proverbially
hard to please, and once a quarrel takes place, it is always easy to
detect insult in the high words that may pass between them and their
children’s spouses or ill-treatment in their subsequent behaviour
to each other. If they lived apart, such occurrences would be rare.
Though the wife may keep her temper and submit as far as possible,
adopted husbands are not so amenable to parental authority, and their
divorce is not unfrequent.
Wilful desertion is a valid ground for divorce. The term of absence
justifying such action is three years. An adopted son who severs his
connection with the family is divorced from his wife if she is the
daughter of the house; but if she is not, she may leave it with her
husband. If she is the head of the family, the divorce of her adopted
husband dissolves both family and marital relations at the same time;
and if she wishes to follow him, she must give up her position as head
of the family and be married to him afresh.
Any arrangements may be made for the custody of the children after
divorce; but in the absence of special agreement, the principle
followed is that the children belong to the family in which they
were born. Thus, they belong as a rule to the father; but if he has
been adopted as husband, they fall to the care of their mother.
Judicial divorces are, as already stated, seldom applied for. There
have been a few cases of divorce for adultery, which, where proved,
always ended in the imprisonment of the unfaithful wife and her
paramour. These criminal suits have not so far been accompanied
by civil actions; the Japanese husband is satisfied with the
incarceration of the destroyer of his domestic happiness. Seeing that
his wife is party to the ruin of his home, he would not dream of being
indemnified for it, as a woman who is capable of infidelity is
in his opinion bound sooner or later to dishonour her husband. To the
Japanese there is something repugnantly mercenary in claiming damages
for his wife’s forfeiture of chastity in the same way as he might for
the loss of any piece of property.
Pecuniary considerations enter as little into actions for breach of
promise of marriage. Since the new Civil Code came into operation,
there has been only one such case brought into court. It was decided
in favour of the plaintiff; but the court merely ordered the promise
of marriage to be carried out and did not enter into consideration of
any pecuniary compensation for the breach. But then there is really
nothing to assess when an engagement is broken off in Japan. All that
is necessary when the other party consents to its being broken off,
is to return in kind or value the betrothal presents. As the engaged
couple, if they ever do write to each other, only send formal letters
with the compliments of the season or inquiries after each other’s
health, these epistles afford no means of measuring the suffering
entailed by the breach of faith. Neither do the lovers go out
together; and on the very rare occasions when they walk with each
other, they are accompanied, not by a conniving gooseberry, but by an
Argus-eyed chaperon who frowns upon the least departure from strict
propriety. So that their behaviour in each other’s company gives as
little guidance as the letters in the assessment of the damage done to
the jilted lover’s heart.
In a similar manner mercenary marriages are not so numerous with us as
in other countries. Many men marry, it is true, with ulterior motives
daughters of wealthy or influential families; and these latter
naturally do their best to promote the interests of their sons-in-law.
By judicious marriages young men have risen to high and influential
positions in official and commercial circles. But marriages that are
crudely, unblushingly mercenary are rare for the simple reason that it
is not the common custom to give away daughters with large dowries.
The wives bring with them plenty of dresses and personal articles,
but seldom money, though their fathers may give them something
to start with when they marry. There is still a strong prejudice
against dowries; and a man who marries a woman with a _dot_ is often
considered very mercenary and, still worse, even suspected of
having taken the money as an offset against some personal defect in
his wife. There is of course the possibility that the wealthy parent
would help his daughter in difficulties and when the worst came to the
worst, keep her and her family from starvation. But the most effectual
way in which a man may make money by marriage is to get adopted as
a husband by a wealthy family; it is indeed the only means a poor
man has of acquiring wealth without any exertion on his part; the
difficulty is to find a well-to-do family willing to adopt him. If he
has nothing to expect from his father, he need not hope for a legacy
from an uncle, aunt, or any other relative, as an estate is seldom
allowed to go out of the family. A bachelor or a childless person
adopts some one to succeed to his name and property.
In the same way a settlement is seldom made on the wife. A widow
is, as long as she remains in the family, maintained by her son or
daughter’s husband. Until recently she had, if she wished to remarry,
first to return to her own family and become a spinster again, so to
speak, by re-assuming her maiden name; but the new Civil Code allows
her to marry direct from the family in which she has become a widow;
this is merely to save her the trouble of needlessly removing to her
old home. She must, however, secure the consent of the heads of her
own family and her late husband’s to her second marriage. As the widow
brings from her husband’s home only her clothes and other personal
property, she is not courted by fortune-hunters. A girl does not
in Japan give her hand to a dotard with the object of enjoying his
property after his death with a husband more suited to her age.