Upon the consummation of marriage, the wife is obliged to live with her husband, who is required by the Civil Code to make her cohabit with him. Thus, cohabitation is in the eyes of the law an indispensable condition of matrimony; and therefore, such a thing as judicial separation is unknown in Japan, and there is no middle course between cohabitation and divorce. The wife usually takes her husband’s surname; but if she is the head of the family or the heiress to it, the husband by adoption assumes her surname.
If the wife is under age or judicially pronounced incapable of managing her own affairs, the husband becomes her guardian for the time being; but if the husband is pronounced incapable in a similar manner, the wife becomes his guardian and takes charge of his affairs. The wife, however, in ordinary circumstances is under the husband’s control. Her disabilities arise not from her sex as such, but from her status of feme-covert; for though political rights are still denied to women, no discrimination is made in the private rights of the two sexes. It is only when she marries that she cedes to her husband many of her rights as feme-sole. There are certain acts, for instance, for which she is required by the Civil Code to obtain her husband’s permission, such as the receipt and use of a capital sum, contracting of debts, bringing of actions at court, carrying on of a trade or business on her own account, and making of contracts binding herself to service for a specific term; but the permission may be dispensed with if her husband’s whereabouts are unknown, or he has wilfully deserted her, is pronounced incapable, is under restraint for lunacy, or is serving a term of imprisonment exceeding one year, or if his interests clash with hers.
The wife may have separate property. She is at liberty to make any arrangement with her husband for its management and disposal; but such arrangement must be registered not later than the registration of the marriage itself, or it cannot be upheld before her heirs or set up against third parties. In fact, all contracts between husband and wife may by mutual consent be altered or cancelled at any time; but such alteration or cancellation cannot be upheld to the prejudice of a third party. This right to hold property in her own name is a great concession to the wife, for such rights were formerly utterly ignored. In the old days, everything belonged to the husband as head of the family, not only any property that the wife might bring or inherit, but also any estate, real or personal, that might be acquired by any other member of the family. All its members were supposed to work for the benefit of the family, and the head as its sole representative had absolute control of the property so acquired. But now in recognition of the rights of the individual as against those of the family as a whole, the Civil Code permits the separate registration of property by its subordinate members.
Where no special arrangements have been made between husband and wife with respect to either party’s property the law directs a certain course to be followed in its use and disposal. In the first place, while the owner of any property is naturally deemed to possess absolute right to the interest or profit arising therefrom, any property which has been acquired but cannot be definitely credited to either party, is to be taken, pending production of proof to the contrary, as belonging to the head of the family. The head has also the right to put to use the other party’s property and derive profit therefrom, provided the character of such property remains unaltered. Thus, the head may cultivate the other’s fields or rent them to a tenant and occupy or rent the other’s houses, but may not, for instance, convert a field into building land or a dwelling-house into a godown. This power is given to the head to offset the obligation he or she is under to bear all expenses resulting from the marriage, that is, to defray all household expenses, support the family, and pay for the bringing up of the children. If, however, the head is in needy circumstances, the other party, if possessed of separate property, must support the family.
The husband, whether head of the family or not, has the management of his wife’s property. He may make improvements in it; but he cannot without her consent rent her land for more than five years running or her house for more than three. And if the wife is afraid of her husband’s abusing this discretionary power, she may request the judicial authorities to order him to deposit security against any loss that the estate might suffer through his mismanagement. The wife is to be considered as her husband’s agent in household matters, such as the provision of food and raiment. The husband may, however, reserve the right to repudiate partially or wholly her acts as his proxy; but he cannot thereby cancel his obligations to those persons who have been dealing with her in good faith, believing her to possess the powers usually delegated to the wife.
Having thus given an outline of woman’s legal position in matrimony, we may now pass on to the conditions of divorce. The laxity of the custom in regard to divorce was, as we have already observed, partially remedied by the new Civil Code, which is based on European laws and modified by existing Japanese usages. In the matter of divorce, it makes many concessions to the customs hitherto prevailing in Japan, as a strict adhesion to the European laws on the subject would call for a too drastic change in the habits of the people who have for the most part been accustomed to think lightly of divorce. In the old times it was sufficient to give the wife a declaration of divorce, which, from its shortness, came to be known as “the three lines and a half.”
In these days, however, when the supremacy of law is universally recognised, such an informal process cannot be tolerated; and formalities as full as at marriage must be gone through. For divorce in its simplest form judicial intervention is not needed. It is enough that the parties agree to separate. All that is necessary is to make a declaration attested by two reputable witnesses at the local office that the divorce takes place by mutual consent. If there is sufficient cause which would be recognised by a court of justice, the offending party would readily consent to this form of divorce, for few people would care to wash their soiled linen in public when the same end could be gained more quietly in private. Hence, judicial divorces are comparatively rare. The attestation of two witnesses is of considerable use in preventing rash divorces made in a moment of passion and repented immediately after, as the witnesses who may be expected to be cooler-headed than the principals, would do their best to patch up the quarrel or difference before finally setting their seal and signature to the deed of divorce. Moreover, if the parties are under twenty-five years of age, they must obtain the consent of those persons, that is, parents, guardians, or family councils, whose consent would be necessary for a marriage in which the bride is under twenty-five years of age and the bridegroom under thirty. In a divorce the domicile of the wife or the adopted husband is re-transferred from the domicile of the family into which they were married to that of their original family; the process is reverse of that required upon marriage. In a divorce by mutual consent the request for re-transfer is voluntarily made by the parties concerned, while in a judicial divorce, since the appeal to law is made in consequence of the refusal of one of the parties to sign the request to the local office, the re-transfer is made by order of the court.
Judicial divorces are granted on several grounds. First, for bigamy. Bigamy is punishable with penal servitude for a term not exceeding two years, and the second marriage is annulled; but the offence may also be made the ground for the dissolution of the first. Thus, the bigamist may, when he has served his term, find himself single and be ready for a third marriage. Secondly, the wife may be divorced for adultery, but not the husband. He may be divorced if he is convicted of adultery with a married woman. The unfaithful wife and her paramour are liable to penal servitude for a term not exceeding two years if the charge is brought by the outraged husband. The lover cannot be punished alone; the woman must share his fate; and only such a lover’s wife can bring a divorce suit for adultery against her husband. But it is very seldom that the husband applies for divorce from his wife on the score of infidelity; such divorces are generally effected by mutual consent unless the husband is ready to expose his family affairs for the mere gratification of wreaking vengeance. The delinquent wife, if brought before court, is, as has already been stated, both punished and debarred from marrying her paramour. Besides infidelity with a married woman, the husband, may be divorced for immoral crimes. Divorce may also be sought if the other party is guilty of forgery, theft, burglary, fraud, embezzlement, and other heinous crimes. As the guilty party is usually the husband, the wife may refuse to live any longer with one who has brought dishonour upon the family. She may also bring an action for divorce if her husband is imprisoned for three years or more for offences other than those mentioned above or if she has been so ill treated or grossly insulted by him as to make cohabitation intolerable.
The common custom in Japan of the couple living under one roof with the parents of either party is doubtless responsible for two other grounds for divorce, which are that an action for divorce lies if either party ill-treats or grossly insults the ascendants of the other or is ill treated or grossly insulted by them. Thus, without there being any strained relations between the couple themselves, either of them may seek divorce if ill treated or grossly insulted by the parents or grand-parents of the other, or be sued for it if similar treatment is offered to them. Mothers-in-law are proverbially hard to please, and once a quarrel takes place, it is always easy to detect insult in the high words that may pass between them and their children’s spouses or ill-treatment in their subsequent behaviour to each other. If they lived apart, such occurrences would be rare. Though the wife may keep her temper and submit as far as possible, adopted husbands are not so amenable to parental authority, and their divorce is not unfrequent.
Wilful desertion is a valid ground for divorce. The term of absence justifying such action is three years. An adopted son who severs his connection with the family is divorced from his wife if she is the daughter of the house; but if she is not, she may leave it with her husband. If she is the head of the family, the divorce of her adopted husband dissolves both family and marital relations at the same time; and if she wishes to follow him, she must give up her position as head of the family and be married to him afresh.