Solving Legal Matters
QUESTION 1
Good day Atty. Miyoshi!
I just want to ask about my situation. I am a permanent visa holder and my husband is holding a provisional released paper. We are married and have a child. But, I want to have a vacation in the Philippines with my son for a short period of time only then go back again here in Japan. Is it okay if I will just have a vacation in Philippines or wait until he has his visa? He is afraid because he is working as a part time, I can’t work because I’m still pregnant with our 2nd child. Thanks!
Paula
ANSWER 1
I would advice you not to go on that vacation. According to the Japanese Immigration Law, those, who are granted a “Provisional Release Permit” by the Immigration authority, are strictly prohibited to work since this permit is just to release a suspect (your husband) from the Immigration facility and is not a Stay Permit.
That’s why you have to support him economically/financially while he is released from Immigration. It means that you by yourself must always be with him in Japan and you cannot entirely go out from Japan since you have to support him.
Also, if he is caught working illegally without the proper visa he will be deported back to his home country without any question immediately. Now, I presume that he will be granted the Special Permission for Residence from the authority in the near future because you are pregnant with your second child with him.
Please be careful and try not to leave your husband alone here in Japan and just wait until the final decision from the authority is passed.
QUESTION 2
I have some concerns about my baby’s paternity and I can’t find much legal help in here in Spain.
In our case, me (Spanish male) and my girlfriend (Japanese female) are waiting for a baby, which is going to be born sometime in March 2015. She is recently divorced, middle of July 2014. So we have to wait if we want to marry. But the biggest issue that she found is that legally, if the baby is born within 300 days after divorce, it will be considered as her ex-husbands baby, and will get his koseki instead hers.
Because of this, she is considering not going to trial, because it would involve her ex-husband.
My question is there any possibility that this baby is not recognized as his baby? Like through DNA test or similar? Or, would he be asked to testify in any case? Because of this, she is thinking about not going to trial, having the baby with the ex-koseki and raises the baby by herself without me.
I sincerely beg for your help, or anyone that you could refer to me.
Thank you very much.
Yours,
Javier T
ANSWER 2
Please find my answer and comment as follows:
1) Filling to the Family Court and issuing the judgment/ referee/decision
As you pointed out, according to the Paragraph-2, Article-772 of Japanese Civil Code, a child is supposed to be registered and filled in his/her father’s family register (Koseki-Tohon) as a child of husband and wife when the father or mother would submit the birth report to the municipal office or Japanese Embassy/Consulate. Therefore, even if “the child born less than 300 days among marriage or after divorce” was born as a child between the two, this child may be recognized as the child of father on the family register (Koseki-Tohon).
However, when it is clear that a wife cannot conceive her husband’s child since her husband has no chance to have a physical affair with wife, such as a case of the overseas business trip of a long period of time, serving sentence, separation, etc., this child will not accept a presumption that this child was born from his father who was registered on the Koseki-Tohon.
In such a case, this child, registered husband, registered wife (mother of child) and a real father (you) can file it as the case of “Mediation of Child-Parent Relationship Absence Verification” to the Family Court in Japan. In this mediation, the Family Court will decide and issue the judgment to the petitioner finally after both person concerned has agreed saying, “A child is not a husband’s child” and the Court would have investigated the facts, which concerns to these persons, and admitted that their agreement is just.
In the trial at Family Court, DNA identification may be carried out in order to show clearly that there is no relation of husband and child. Anyway, as I mentioned above, a child, parents and a child’s real father can file this petition to the Family Court in Japan.
On the other hand, in the case of which she (your girlfriend) has not yet given birth, registered father, mother (your girlfriend) and you can also file it as the case of recognition of child to the Family Court in Japan before birth of child.
All petitioner must file the petition or allegation to the Family Court located where the other party (in the case of a child, respondent must be the parents. In the case of parents, respondent must be child. And, in the case of real father, respondent must be child and his/her parents.) presently resides or sets by agreement of a person concerned.
The documents required for a petition are as follows:
- Document of petition one copy
- Family register and resident card one copy each
- Birth report of child one copy
- Maternity record book one copy
- Data proving the blood type of a petitioner, the other party, and a child one copy each
2) Revised procedure on and after May 21, 2007
The Legislative Bureau of Ministry of Justice revised the procedure of registration of it on and after May 21, 2007. That is, even if the child is a “child born less than 300 days after dissolution or cancellation of marriage”, the mother can submit the birth notification of her “illegitimate-child” or “legitimate-child” of next husband who got married with her. That is, the presumption of Article 772 of Civil Code will not reach to this child, when they can fulfill the following condition;
- The earliest day of the time of the pregnancy presumed should be after dissolution or cancellation/annulment of marriage day
- Besides, should be attached the document named of “Certificate About Pregnancy Time”
- Registration at municipal office
After authorizing that this petition or allegation of the above “1)” was a fact because of trial, a petitioner (you or your girlfriend) would be issued a judgment/ referee/decision from the Family Court. Then, when a mother (=girlfriend) submits this judgment/referee/decision document to municipal office/Japanese Embassy, it is supposed to be described in the family register that the father of the born child or the child under pregnancy is not a father on a family register, and the real father is a mother’s sweetheart or next husband. Moreover, if the notification of the above “2)” is received, it will be indicated that “presumption of Article 772 of Civil Code does not attain to this child” with the birth matter of child’s identification in child’s column.
I hope you quite understand what I mentioned. By the way, how did you find my name and mail address? Please let me know it for my information, and more information will be given when you would visit our office.
Office name: Miyoshi International Legal Counsel Office
Telephone/Fax (Japanese/English): 042-339-8013(office), 090-14360-4107(Mobile phone)
E-mail: miyoshi@ipcworld.co.jp or joshua-galasha@mvg.biglobe.ne.jp (Japanese/English) OR p-digest@ipcworld.co.jp(English/Tagalog)
Website: www.phildigest.jp
Nearest station: Keio Nagayama by Keio line or Odakyu Nagayama by Odakyu line in Tama-city, Tokyo
Working hour/day: 09:00-18:00/Monday-Saturday (except holidays)