International Marriages in Japan: Part One -
Visa status of non-Japanese spouses in 2002
J. Sean Curtin (Professor, Japanese Red Cross University)
A full list of articles in this series can be found here.
This is the first in a series of articles on various aspects of "international marriage" (a union in which initially one of the spouses is a non-Japanese citizen).
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 (International Marriages in Japan: 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 (International Marriages in Japan: Part Two).
* 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.