Parental authority
QUESTION #1:
Good evening!
Please be patient with me because I don’t know enough of the Japanese language. I have been here in Japan for two years and 3 months and have just delivered a child four months ago.
My Japanese husband calls me “Baka” because he says I don’t know anything except “Wakaranai”. I would like to work or get a job because my husband has given me only my visa and food, and nothing else. I married him even if I did not love him (he is already 60 years old) and I wanted to become pregnant to make sure about the visa. He denies me almost everything and does not give me anything else.
That is why I would like to divorce him, but he says that I have no right to my baby if I divorce him. If I divorce him, am I automatically sent home to the Philippines? My visa expires in August 2021. Can I have my baby’s passport made even without the permission of my husband, and even if he will not agree to it? Can I bring my baby to the Philippines so that I could work here in Japan even for 6 months only, and then I will bring my baby back to Japan again?
Please reply and help me solve my problems.
I am sorry but I don’t have any money to pay for a personal consultation. Thank you so much!
Rowena in Chiba
ANSWER #1
I sympathize with you deeply. I got to know that you were holding a bad image of Japan or Japanese people by one “Bakana” Japanese’s speech and conduct and I am apprehensive.
Do not worry about your case at all, please. Everybody understands what you and your husband are. Who can say “Baka” as your foolish husband has said, irrespective of that you can write a letter in this way and are also planning the future?
As you are a Japanese spouse now, you have been admitted as the status of residence, “Spouse/Child of Japanese National”. It is one of the statuses of residence permit, which can set to work, of course. If you will divorce from him as you may wish, you must apply for change of status of residence from “Spouse/Child of Japanese National” to “Long Term Resident”. I think this application will be granted if there is no penal record in Japan as you have already born a baby among Japanese husbands and the reason for application is the purpose of supporting this child.
The important thing is that you must obtain your child’s parental authority. In the Civil Law, there are three kinds of divorce such as a divorce by agreement, a divorce by mediation, and a judicial divorce. In divorce, a problem is who parental authority made poses. The case, which fights in order to decide parental authority and results in a judicial divorce, is not new, either. Therefore, you have no basis and the reason to reside in Japan if you lose parental authority.
That is, you can reside in Japan given the status of residence, “Long Term Resident”, because you are taking care of and bringing up your child who is Japanese citizen. So, if parental authority belongs to your husband and he takes care of him instead of you, your residence permit in Japan will be cut out and you are forced to go back to the Philippines.
On the other hand, I am afraid that your residence permit will expire if you continue to deposit your child with a relative of the Philippines over a long period of time even if you acquire parental authority and can be admitted to the residence permit in Japan. It will be OK if it is about six months only.
Therefore, you do not worry about your husband’s threat that makes you automatically return to the Philippines from the time when you divorce from your husband. You can reside in Japan and work from that time.
In addition, you are able to get and obtain your child’s passport freely at the passport center only if you, as a mother of your child, can apply for your child passport, even if your husband does not make any consent and cooperation.
I am praying for your fortune.
QUESTION #2:
I am a Filipino married to a Filipina who has a permanent residence visa, married December in 2017. I am a “Long Term Resident” visa holder. I have been working for this company for almost 10 years. I married my wife with 2 kids from her former husband. We got married in the Philippines and filed the certificate here in Japan. We had a son who is now 3 years old and staying with me since March in 2018. Last June in 2020, she ran away bringing my child with her. Though she ran away without telling me where to go I managed to find her and insist that she cannot stop me from seeing my son, I will only stop if she can show me any court order that I do not have the right to visit my child. My child is 6 years old at that time. She then let me see my son and have my son every Friday night until Sunday evening to stay with me. In March last year, I picked up my son to stay with me. Lately at that time, my son usually cries and does not want to go back to her mother’s place. Last year, I brought my son to Kobe Kodomo Katei center. The center helps me to enroll my son near my place.
Now my story to be short, I have the temporary custody of my son and we are now in a middle of mediation for the visitation rights of the mother because the Akashi family court ordered me to enter the mediation before the final custody is released. The court found her neglect to my son. I also found out that, and she even had a shogen or testimony that she met a Japanese guy when we got bekkyo or separated but not legally separated because even me or she does not file any papers for bekkyo, she had a baby from another man. We are both Filipino citizens living in japan. The Philippines forbids divorce and adultery is a crime. Almost all of the lawyers around my place, which is the Akashi family court, say that in Japan adultery is not a crime, but I think the Japanese law says that if both spouses have the same nationality, Japanese family court has jurisdiction and WILL APPLY the law of their nation.
I am very upset and tired clearing my mind of which law will be applied to us. I will be very thankful if you will give me some advice.
Sincerely yours,
Joshua
ANSWER #2:
I am pleased and grateful for your reading my column on the Philippine Digest. I will also feel pain when I sympathize with your feelings. As you have already known, this is a very legal matter. First, the “adultery” is not provided in the present law of Japan.
For your information, it was specified to Article 183 of the criminal code before 1947, and this crime was to wait for a husband’s accusation and to be punished. However, a part of the criminal code was revised and deleted in 1947. And, regarding to the legal relation between parents and children, whether it shall be applied a national law or law of the child’s habitual residence is specified to “Act on General Rules for Application of Laws”, which is Act No. 78 of June 21, 2006 revised all of laws governing the application of laws (Meiji 31 law No. 10).
According to this law, it is specified as follows.
(Legal Relationship between Parents and Child)
Article 32: The legal relationship between parents and their child shall be governed by the child’s national law if it is the same as the national law of either the father or mother (in cases where one parent has died or is unknown, the national law of the other parent), or in other cases by the law of the child’s habitual residence.
(Other Family Relationships, etc.)
Article 33: Family relationships or rights and obligations arising therefrom other than those provided for in Article 24 to Article 32 shall be governed by the national law of the party concerned.
(Formalities for Juridical Act Regarding Family Relationships)
Article 34: (1) The formalities for a juridical act regarding family relationships provided for in Article 25 to Article 33 shall be governed by the law applicable to the formation of the juridical act.
(2) Notwithstanding the preceding paragraph, the formalities that comply with the law of the place where the act was done shall be valid.
I hope you understand what it means. Anyway, you should wait for the final decision of Family Court through the mediation and judgment by the Court.
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