The restorative justice toward the era of decreasing birthrate and aging populationSupport and Promotion of Resolution through Parental Consensus in Divorce by Mutual Agreement: Post-divorce Child Welfare
Children and divorce
Because people who want a divorce become psychologically unstable and focused exclusively on dissolving their relationship with their partner, they agree to divorce without deciding things such as post-divorce support payments for children who are still minors and rules for interaction between children and the parent with whom they are not living. Only once people are divorced do they turn their attention to their children, and then conflicts over custody, beginning with who will care for the children, and sometimes including struggles over who the children will live with and conflicts over the allotment/non-payment of child support and interactions between children and parents with whom they are not living begin. When parents cannot come to an agreement through dialogue these conflicts can become fierce. Children who are exposed to their parents’ fierce arguments and conflicts over them suffer painful thoughts and fall into an unstable mental state. The reason that children are placed in this situation is because of the Japanese mutual agreement divorce system, in which everything related to the custody of children who are still minors, including how discussions are held, how an agreement is formulated, and how the contents of an agreement are put into practice, is left up to the parents.
The Japanese mutual agreement divorce system prioritizes parental rights and does not adequately attend to the welfare of children
The Japanese mutual agreement divorce process is extremely simple compared to other countries. Various European countries only require an adjudicated divorce, and South Korea uses a process of confirmation of intent to divorce and arrangements concerning the custody and raising of children must be conducted by a family court. When it comes to mutual agreement divorces, which constitute roughly 90% of all divorces in Japan, a divorce is finalized simply by submitting a divorce notice with the agreement of both parties and without the intervention of a court. When there is a child who is still a minor, a mutual agreement divorce can be obtained if parental rights are established (a transition from joint parental rights to sole parental rights through the divorce). With the 2011 revision of article 766 of the civil code, a field for allotment of child support payments and visitation arrangements was added to the divorce notification form, but a divorce can be completed even if it is not filled in. This has made it easy for problems such as lapses in the payment of child support by the parent not living with the child and struggles over child custody to arise. In cases in which there has been domestic violence between the parents it is even more difficult to reach an agreement and secure post-divorce compliance. In other words, the situation is such that the interests of children are greatly affected by the wishes of their parents and are not necessarily protected. It has been noted that in mutual agreement divorce, as it currently exists, there is neither a means of confirming both parties’ intention to divorce nor a mechanism for securing post-divorce arrangements for children who are still minors.
Support for reaching a consensus for the sake of the children: Learning from the South Korean mutual agreement divorce system
South Korea, which, like Japan, has a mutual agreement divorce system, introduced a system for confirming the intention of the parties to divorce outside of the courts in order to prevent unilateral divorce in 1977, and on December 21st, 2007, established a three-month consideration period (in cases in which there are children who are still minors) and introduced a system including divorce information and guidance as a premise of agreement, support from specialists, and confirmation of mutual agreement documents. In addition, in March of 2015 the national government established the Child Support Agency and has attempted to ensure the reliable fulfillment of child support obligations. For the application for confirmation of intent for a mutual agreement divorce as mentioned above, both parties must appear in family court. As part of this process they must receive divorce guidance that addresses legal issues pertaining to divorce and parental education (child rearing guidance) covering topics such as the effects of divorce on children before submitting a mutual agreement document that concretely spells out the determination of possession of parental rights and custody, child support payment obligations, whether visitation will occur, and if visitation occurs how it will be carried out (effective June 22nd, 2008). In addition, in the case of parties who cannot come to an agreement even after receiving divorce guidance and explanation of the agreement documents, the family court may also recommend counseling with a specialist. In such cases the couple in question is able to receive counseling from a specialist counseling organization affiliated with the family court. In March of 2015 the government established the Child Support Agency as a national policy, and has attempted to ensure that child support payments are actually being made. With regard to people who have committed acts of domestic violence, in cases in which it is determined their reform is possible a judge may order counseling at a counseling center, and agreement between parents regarding child rearing is supported through reform/treatment programs.
As stated above, South Korea has strengthened support for parties considering divorce in reaching an agreement, and, with the family court serving as a hub, has promoted its affiliation with external specialists and specialist organizations. The involvement of specialists in psychology plays a particularly large role. In Japanese divorce by mutual agreement a system in which the interests of children are given priority is needed, and the Korean system can perhaps serve as a model when thinking about our direction moving forward. In fact, Akashi city in Hyogo has already taken the Korean system (particularly the Seoul family court system) as its model and implemented information guidance and counseling responses for divorce by mutual agreement.
- Shuhei Ninomiya & Sungeun Kim, “Mandatory interview, visitation centers and the Child Support Agency – new developments in South Korea regarding the entrances and exits of resolving divorce conflicts”. ''Kosekijiho'', No.741(2016.6), 11-12.
- Shuhei Ninomiya & Satosi Watanabe (eds.), ''Resolving divorce disputes through mutual agreement and emphasizing the will of the child.'' Sungeun Kim, “Initiative to guarantee care of children and cases of domestic violence in South Korea.” Japan kajo Publication Company, 2014, 338-350.
- The restorative justice toward the era of decreasing birthrate and aging population