Part One - Visa status of non-Japanese spouses in 2002
Over the past decade there has been an enormous rise in the number of registered marriages in which one of the spouses is a non-Japanese national. Statistics for 2000 show that in about 80% of these unions the husband was Japanese. The majority of brides were from neighboring Asian countries such as China, Korea, the Philippines or Thailand. When the wife was Japanese, Koreans were the most popular grooms. In Japan, these kinds of marriages are usually referred to as "international marriages" (kokusai kekkon). In 2000, 36,263 such couples tied the marital knot, which was a record high.* The current trend shows a clear upward trajectory. These figures also indicate that Japan is slowly becoming a more multi-ethnic society. International marriages offer a myriad of socio-economic benefits to Japan and are enriching many local communities around the country.** Despite the very positive aspects of this development, the sharp increase in these kinds of unions is also exposing a number of serious legal flaws in the marriage and divorce laws when they apply to foreign spouses.
While many international marriages are successful, those that are unlucky enough to end in divorce are currently poorly served by the existing legal framework. Despite a series of amendments during the eighties and nineties, foreign spouses still face formidable hurdles if their marriage ends in divorce. The termination of such a union represents a very different set of dynamics from divorces in which both parties are Japanese.***
Some aspects of the law are particularly vague, which creates many serious problems. On 17 October 2002, the Supreme Court issued its first decision on the visa status of a non-Japanese spouse married to a Japanese citizen. This ruling highlighted many of the current flaws which are outlined below and this particular case will be examined in depth in the next article in this series (Part Two – Impact of 17 October 2002 Supreme Court decision on International Marriages).
Residency status of divorcing foreign spouses
In divorce suits involving a foreign spouse, residency status is probably the number one issue in most cases. The residency status of the spouse at the time of divorce is the critical factor in the entire equation. The Immigration Control Act of Japan recognizes 27 types of visas, which include various categories such as Spouse Visa, Instructor Visa, Student Visa, Professor Visa, inter alia. Whether divorce will affect the residency status of the individual depends on the visa held at the time of marital dissolution. For example, if the foreign spouse applied for and obtained either Permanent Residency (eijuusha or eijuuken) or Japanese Citizenship (nihon-kokuseki) during the marriage, then they can remain in Japan after the divorce as their residency status is not dependent on their marital status. Basically, any kind of visa which is not reliant on being married will not be affected by divorce and can be renewed as long as the criteria under which it was issued remain valid.
Divorce and spouse visas
If an individual holds a Spouse Visa (nihonjin-no-haiguusha), divorce means that this status will be revoked and this particular type of visa cannot be renewed. A Spouse Visa is valid for either a one or three year period and can be used after divorce until it expires. If the individual wishes to stay in Japan, the visa status must be changed. For those holding a Spouse Visa, the presence or absence of children is a key element in deterring the new residency status.
Divorces involving children
When the relationship has produced offspring and the foreign spouse gets custody of the children, then a Long Term Resident Visa (teijuusha) can be applied for, which is renewable indefinitely. To be eligible for this visa, the couple does not actually have to have been legally married, but the Japanese parent must have legally acknowledged their offspring. A child qualifies for Japanese nationality, if at the time of birth either of the parents is a Japanese citizen.****
In most of these types of divorce cases, the foreign wife gets custody of the children and generally there is little conflict regarding this particular aspect. In those cases where complications do arise on this issue, they often involve the Japanese husband's mother disputing custody. Where there is a legal dispute over the children, Japanese courts tend to almost always rule in favour of the mother when the children are young.
According to a Justice Ministry directive issued on 30 July 1996, foreigners who have custody of their legitimate children with Japanese nationality, and who are actually taking care of the children in Japan, are entitled to receive a Long Term Resident Visa (teijuusha) or Permanent Resident Status (eijuusha). There are virtually no exceptions to this directive. Illegitimate children born to a foreign woman and Japanese father, who is already married, also have a chance of receiving residency status under the 30 July 1996 directive, which allows for a special residency status under these circumstances.
In all cases, the Justice Ministry has discretionary power over how soon the visa is granted. At present, the procedure can take one or two years, which causes some mothers severe stress and hardship. The residency status is decided on a case-by-case basis according to the specific circumstances. Generally, the financial situation of the individual is examined and it is determined whether the stated purpose of the visa matches the applicant's situation.
Divorce and visa problems involving children
Currently, there is a serious gray area in the present legislation with regard to cases where the mother has children from a previous relationship with a non-Japanese national and these children do not have Japanese citizenship. For example, a Chinese woman with two children from a previous relationship with a Chinese partner who marries a Japanese man. She and her children could find themselves deported were she to divorce, if the children had not acquired Japanese nationality. At present, these kinds of cases are the most problematic and likely to increase in number as the Japanese economy becomes more globalized.
Divorces involving no children
For those holding a Spouse Visa, but having no children, remaining in Japan after the divorce may be much more difficult than for those who have children. After divorcing, those with a Spouse Visa and no children will only be able to stay in Japan until the visa expires. If an individual wishes to remain in Japan after this period, it will be necessary to change the visa status. For example, someone who holds a Spouse Visa and is working as a language instructor might be able to change their status to that of Instructor Visa.
A serious problem arises for many foreign women who have only been housewives. Language difficulties often prevent foreign spouses from engaging in paid employment during their initial first few years in Japan. This makes it difficult for them to be self supporting after a divorce and even harder for them to change their residency status. Divorce for these women often means that they will have to return to their home country, even if they were not at all responsible for the divorce in any way.
Current position of some divorcing foreign spouses is unfair
The current situation is obviously grossly unjust as it means that a husband can abuse his foreign wife in various ways, safe in the knowledge that if the wife files for divorce she may have to leave Japan. Research conducted at centres for battered women indicates that many foreign wives tolerate abusive treatment for long periods out of fear of loosing their residency status.
Regardless of the circumstances of the divorce, the Immigration Bureau will not renew the Spouse Visa unless a couple are actually living together as husband and wife. The stringent renewal process requires proof that the wife is living with her husband. A letter of guarantee written by the spouse is also needed as well as evidence of the spouse's employment, and a certificate of tax payment.
In many cases, the husband utilizes the wife's weak position as a bargaining chip if he wants a divorce. Often he allows the wife to renew the Spouse Visa on a one time basis on the understanding that she will then agree to a divorce afterwards.
International marriages and the global community
The current situation is highly unsatisfactory for some foreign spouses as it means they can be mistreated almost with impunity. If they attempt to alleviate the situation, they face the very real prospect of deportation. Even if the wife has adjusted well to life in Japan and invested a lot of her life's energy in building up friends and relationships, she faces possible ejection from Japan due to her husband’s misdeeds and no wrong doing on her part. This situation is incompatible with the aims of creating a fair and equitable global society.
As the number of international marriages increases yearly, Japan's position as an integral part of the new global community is growing. If the nation wishes to become a successful and mature multi-ethnic society, it urgently needs to satisfactorily resolve the grave shortcomings in divorces involving non-Japanese nationals.
In the next article in this series, the 17 October 2002 Supreme Court decision on Spouse Visa status and its implications for international marriage will be analyzed.
* On International Marriages in Japan
J. Sean Curtin, Debates, GLOCOM Platform, 14 March 2002
** Foreign brides fill the gap in rural Japan
Takuya Asakura, Japan Times, 8 January 2002
Making Japan a More Multi-Ethnic Society is an Investment in the Future
J. Sean Curtin, Debates, GLOCOM Platform, 25 September 2002
*** On Divorces Involving a Non-Japanese Spouse
J. Sean Curtin, Debates, GLOCOM Platform, 15 March 2002
**** The Law concerning Nationality (as amended in 1984)
Article 2. A child shall be a Japanese national if:
(1) at the time of birth, either of the parents is a Japanese national;
(2) the father who died prior to the birth of the child was a Japanese national; or
(3) the child was born in Japan and both parents are unknown, or are without nationality.
Part Two – Impact of 17 October 2002 Supreme Court decision on international marriages
On 17 October 2002, the Supreme Court issued its first ever decision on the visa status of a non-Japanese spouse married to a Japanese citizen. This ruling highlights many of the problems facing foreign wives with a Spouse Visa, but whose marriage has produced no children. This is a significant ruling as it is the first case that has made its way up to the nation's highest court. The verdict exposes the inadequacies in the current system and shows that Japanese law on this issue is not up to a global standard.
In 1983, Peancai Midchid, a Thai national, came to Japan for the first time on a Tourist Visa. She was aged 24 at the time. In 1988, she married a Japanese man in Thailand, returning to Japan in April 1989 on a Spouse Visa. In 1990, her husband left the couple's home after having admitted to fathering two children with another woman. Even though separated from her husband, she managed to get her visa renewed every year until 1993. In total, she lived separately from her husband for a period of four years and eight months before the renewal of her visa was denied.
In April 1994, the local immigration bureau rejected her renewal application on the grounds that her marriage was void as she and her husband were living apart. This decision prompted her to file a lawsuit at the Osaka District Court to overturn the immigration bureau's decision. Peancai Midchid's lawyers argued that it was illegal for the government to deny the renewal of her visa in April 1994 as the couple are still legally married, even if living separately. Furthermore, the separation was not due to any fault on her part and it would be grossly unfair to uproot Midchid from Japan because of the adulterous actions of her husband. Additionally, Midchid hoped that the relationship with her husband could be repaired.
In December 1996, the Osaka District Court rejected her lawsuit on the straightforward grounds that her marriage had broken down and reconciliation was unlikely. In rejecting her claim for a new Spouse Visa, the court noted the following: "The couple's relationship has lost its significance and is unlikely to be restored." They ignored the argument of her lawyer that non-renewal was unjust because her husband's behaviour was responsible for the breakup and Midchid was completely blameless.
Peancai Midchid immediately appealed the decision, taking her claim to the Osaka High Court. Two years later in December 1998, the high court ruled in her favour, overturning the decision of the lower court. This was a highly significant ruling as the Osaka High Court clearly recognized that the current legal position of some foreign spouses is unequal and accepted the arguments presented by Midchid's lawyer. In part of its opinion, the court noted: "It goes against justice to be forced to leave the country because of the extramarital affair committed by the plaintiff's husband." In another passage, the court acknowledged the global dimension of the case: "The husband is responsible for the marriage breakup. Unless the status of a wife is legally protected, the system will be considerably unjust in today's world, in which an increasing number of foreign people are married to Japanese citizens." The government immediately appealed the ruling.
On 17 October 2002, the Supreme Court overturned the Osaka High Court ruling which had both granted Midchid the right to stay in Japan as well as recognizing the unjust situation some foreign spouses currently face. The Supreme Court presiding judge, Masao Fujii, basically adopted the line of reasoning taken in the original 1996 Osaka District Court decision. Part of the new judgment read: "Foreigners cannot satisfy the requirements for a Spouse Visa even if they are legally married to a Japanese, but not in an actual relationship." Another passage stated: "Even when a foreigner is legally in a marital relationship with a Japanese, that person has not satisfied the requirements for legal residency if their relationship has lost the material base for leading a social life." Noting that the husband now had two children from another relationship, the ruling also noted: "The marital relationship has no prospect of being mended."
Peancai Midchid, who is now 43 and living in Wakayama, signaled her intention to apply for special permission to be granted for Permanent Residency status. Having lost her case, this is now the only legal avenue open to her. She also expressed anger and frustration at the decision.
The Supreme Court clearly rejected the Osaka High Court argument that looked beyond the simple regulations of the immigration authority to the wider injustice of the situation. The Supreme Court's interpretation of the law now confirms that a foreign spouse with no children can risk deportation from Japan if their marriage has breakdown through no fault of their own.
The ruling implies that if a foreign spouse with no children wants to avoid the threat of deportation, their marriage must have both a legal and tangible shared-living basis. This ruling validates the current criteria the Immigration Bureau adopt when assessing the renewal of a Spouse Visa. Regardless of the circumstances of the divorce, the Spouse Visa will not be renewed unless a couple is actually living together as husband and wife. After divorce, once a Spouse Visa has expired, if the former spouse wishes to stay in Japan, they must seek to change their visa status or risk deportation.
The ruling now clarifies the unequal status of foreign husbands and wives holding a Spouse Visa without any Japanese children. Japanese spouses can breakup a marriage by committing a misdeed and as a result the guiltless foreign spouse faces the prospect of deportation through no wrongdoing on their part. This situation is clearly unjust and gives a carte blanche to irresponsible Japanese spouses. This decision will be particularly bad news for foreign wives who are subjected to domestic violence, since they risk deportation if they attempt to flee physical abuse.
Hopefully, the government will consider issuing new guidelines to the Immigration Bureau to treat foreign spouses in these circumstances leniently when it comes to changing their visa status after a divorce. The government should seriously reflect on the Osaka High Court judgment which clearly encapsulated the unfairness of the current situation. The opinion also clearly identified the global perspective on the issue, when it stated: "Unless the status of a wife is legally protected, the system will be considerably unjust in today's world, in which an increasing number of foreign people are married to Japanese citizens."
In the next article in this series, the focus will be on the poverty of Amerasian children in Okinawa.
Part Three – Amerasian children in Okinawa
In Okinawa, a Japanese-American union is the most common type of international marriage. These kinds of marriages have a major impact on the social fabric of the island prefecture. In 1998, Okinawa was slightly above the national average for international marriages with 4.6% of all unions there involving a non-Japanese spouse. What distinguished these matches from the rest of Japan was that the vast majorities were between a Japanese bride and an American groom. Nationally, in about 80% of international marriages, the husband is Japanese and wife is from a neighboring Asian country. When one considers that in 2001 Americans only made up 0.026% of the total population of Japan, the number of Japanese-American marriages in Okinawa is quite astounding. Many of these unions produce offspring. According to Okinawan government estimates, each year about two hundred Amerasian children are born in the prefecture.
Okinawa enjoys a strong overall marriage rate, but it also suffers from an equally high divorce rate. For example, in 1999, the Okinawan divorce rate was 2.78 per thousand people. This was well above the national average of 2.00 and was higher than the divorce rates of many European countries. The high divorce rate also partially explains why the prefecture has the highest ratio of mother-headed households in the country. While quite a number of international marriages in Okinawa are very successful, these unions are not immune from the strong regional divorce trend.
Unlike the marriage statistics, published divorce figures do not record the nationality of the divorcees, but research shows that separation rates for couples of mixed nationality in the prefecture are extremely high. This has led to one of Okinawa's the most disturbing and normally concealed social problems. Over the past decade, American servicemen have deserted thousands of children and returned to their home country.
Local authorities and researchers have compiled figures for the number of abandoned Amerasian children. It is estimated that there are between 3,900 to 4,000 such children in Okinawa. The figure probably underestimates the true scale of the problem.
Calculations are mainly based on children abandoned by American fathers in Okinawa and not in the United States. Okinawan women returning with children after a divorce in America are sometimes missed by the statisticians and researchers. Another problem with compiling data is that some women are abandoned by their American partners before giving birth. These mothers are often reluctant to name the father in official documents.
The breathtaking tropical beauty of the islands that make up the Okinawa territory are deceptive, concealing a host of deep-seated socio-economic woes. Social scientists believe that the weak and undeveloped regional economy is a major contributing factor behind the high rate of marital breakdown in the prefecture.
Okinawa has one of the weakest regional economies in Japan, which creates a unique set of social problems. The prefecture's economic disparity can be clearly seen in its high unemployment rate, which stood at a record 9.4% in September 2002. This was the highest in the country and nearly double the national average of 5.4% for the same month. Okinawa also has the highest rate of unemployment for high school and university graduates. Furthermore, those in employment have the lowest wage levels in the country.
Many of Okinawa's complex social problems stem from the overwhelming presence of American forces based on the islands, which dominate and distort the economy of the prefecture.* While Okinawa accounts for just 0.7% of Japan's total land mass, Okinawa provides about 75% of the land used exclusively by the United States military forces based in Japan. There are about 20,000 to 22,000 United States military personnel stationed in Okinawa. To put this figure in perspective, there were 46,244 Americans living in Japan in 2001. Thus, tiny Okinawa accounted for just under half of all American citizens living in the country. This massive concentration of Americans in such a tiny corner of the country has inevitably created some unique social situations, such as the high ratio of Japanese-American marriages.
Children from lone-mother households in Okinawa are among the most economically deprived in the country. Besides the obvious disadvantages of poverty, abandoned Amerasian children often have to face various forms of discrimination. One of the major problems confronting these children is school bullying, which many encounter in Japan's conformist education system. Amerasian children born in the United States and unable to fluently speak Japanese usually face even greater difficulties.**
Sending such children to international schools is seen as a solution. However, for the vast majority of cash-strapped lone-mothers, this is not a viable option. The fees of such schools are normally beyond their budgetary means. As a result, many underprivileged Amerasian children end up in regular schools where they have high dropout rates. This compounds their economic woes, making the lives of already disadvantage children even worse. Since Okinawa already has the highest rates of lone-mother poverty in the country, it should come as no surprise to learn that the abandoned offspring of U.S. servicemen account for some of the poorest children in the whole of Japan.
Nearly all Japanese lone-mother households struggle to make ends meet. However, the poverty levels of Okinawan mothers represent some of the most severe in the country. According to a 1999 study, more than seventy percent of Okinawan lone-mother households had an income of less than 150,000 yen per month, equivalent to an annual income of 1.8 million yen. To put this into perspective, the income of the average Japanese household for 2000 was about 6.17 million yen. The national average annual income of a lone-mother household was just 2.52 million yen, which was not even a third of the average household income. Most Okinawan lone-mothers have incomes that fall well below even this meagre figure, trapping them in severe poverty. Poverty is often defined at the individual level by calculating if the person lives in a household with a size-adjusted disposable income that is less than half the median for the average household in the nation.***
One of the primary reasons for lone-mother poverty in Japan is that fathers do not financially support their children. This is largely due to Japan lacking a system for the collection of child support payments from non-compliant fathers. According to a 1999 Okinawan study, ninety percent of mothers did not receive any child support payments.****
If a Japanese father refuses to pay child support, no real action is taken against him. This is even more of a problem when the father is a U.S. serviceman. This is because once he returns home, the family usually lose all contact with him. Case studies show that some military personnel especially arrange to be transferred before their children are born, making it easier to abandon them. Until the late nineties, such behavior by deadbeat American fathers would lead to no reprisal in the United States.
In recent years, a few American military fathers have actually had to face up to their responsibilities. This is thanks to the work of some crusading lawyers in Okinawa. At present, if a serviceman moves back to the United States, it is now possible to take action against him for child maintenance in Okinawa. By contacting child support centres in the United States, court orders demanding DNA-paternity tests can be issued and child support payments deducted from delinquent fathers. Some Amerasian children have also used the Internet to try to track down their fathers.*****
Even though delinquent American fathers now face the prospect of being prosecuted in family courts, the process takes a lot of time. This is because there is no treaty between Japan and America on the issue. Germany, Sweden and Britain all have individual agreements with America to cooperate in matters of child support involving the servicemen of their respective countries. However, despite talk of inserting a clause in the Status of Forces Agreement between the U.S. military and Japan, nothing has been done to date. The blame for this lies squarely with Japan, which lacks a system for tracking down non-compliant fathers, conducting DNA-paternity tests and deducing money from the delinquent father's salary. At the moment a bilateral treaty would not be viable, as Japan could not reciprocate for claims made in the United States. Japan needs to establish an effective system for making its own non-compliant fathers pay child support.
The current tragedy of thousands of abandoned Amerasian children living in abject poverty is not something that is going to be addressed without some serious political effort from both countries. Proper safeguards are needed to ensure these children do not end up in legal limbo between the two states. A bilateral treaty would certainly help alleviate some of the unfortunate social problems. If the United States military genuinely wants to improve relations with the people of Okinawa, then it needs to ensure its servicemen take responsibility for their offspring. The fact that children born in Okinawa of parents from the world's two richest nations are some of the poorest in Japan is a shameful matter for both countries.
* Handover of Okinawa to Japan was prickly issue
Sayuri Daimon, Japan Times, 14 May 2002
Postwar legacy holds key to identity of Okinawans
Mayumi Negishi, Japan Times, 15 August 2002
Okinawa election again boils down to two themes
Yosuke Naito, Japan Times, 31 October 2002
U.S. wants no reductions in Okinawa
Japan Times, 28 April 2002
** Amerasians of Japan, South Korea to meet in Okinawa
Japan Times, 15 August 2002
*** Poorest Japanese Families Getting Poorer
J. Sean Curtin, Social Trends: Series #4, GLOCOM Platform, 28 August 2002
**** Child Support Payments in 2002
J. Sean Curtin, Social Trends: Series #6, GLOCOM Platform, 9 September 2002
***** Amerasian kids get short shrift in divorce capital of Japan
Mayumi Negishi, Japan Times, 20 July 2000
Amerasians get on Net to find GI dads
Japan Times, 22 June 2000
Editor's note: Prof. J. Sean Curtin of the Japanese Red Cross University at Kitami in Hokkaido is a regular contributor to the GLOCOM Platform from Japan — an online global forum where leading Japanese can express opinions and exchange ideas with the international community. I would like to express my thanks to Prof. Curtin and to GLOCOM for kindly allowing me to republish the above articles here in Japan Perspectives.