Photo/Illutration The Justice Ministry (Asahi Shimbun file photo)

A controversial legal provision for determining paternity, which has remained on the books for more than a century, is about to be changed after hundreds of children went unregistered with their local governments.

An advisory panel to the justice minister on Feb. 1 recommended revising the presumed paternity clause from the 1898 Civil Law because the old rule had increasingly grown out of synch with the reality of modern marriages.

A subcommittee of the Legislative Council said that a new marriage partner should be recognized as the father of a child born after the mother’s remarriage, even if she gave birth within 300 days of getting divorced.

The proposal would create an exception to what is known as the 300-day rule, under which a child born within 300 days of the mother’s divorce is presumed to be from her previous husband.

The panel also suggested removing the clause that prohibits women from remarrying within 100 days of a divorce.

While the 300-day rule itself will be retained, an exception to the rule would be added to the Civil Law that would make it much easier for women struggling with getting their new babies officially recognized under the right father.

The Justice Ministry plans to submit the Civil Law revision bill to the Diet shortly after the Legislative Council meets on Feb. 14 to formally recommend the revisions.

The system of presumed paternity of a child was established under the Civil Law to stabilize the legal status of a child by granting swift recognition of paternal relations without relying on genetic relations.

It presumes that the father of any child conceived by a married woman is her husband and that a child born 200 days after marriage or within 300 days after divorce was conceived by the woman while she was still married.

But the rule has created problems for women suffering from abuse by their husbands in modern society.

Many women opt out of registering their babies born with their new partners while they were separated from their abusive husbands.

The women do not want their children to be officially recognized as the offspring of their former spouses as the 300-day rule stipulates.

As of January, the number of children in the country without family registration totaled 825. Of these, 591 children were not registered due to reasons related to presumed paternity.

Being absent from local family registers could put these children at a great disadvantage, resulting in them being unable to receive various services from their local governments.

The panel’s recommendation is expected to resolve the problem of undocumented children.

Under the current law, if a woman remarries right after her divorce and gives birth to a child between the 201st day of her remarriage and 300th day of her divorce, both her current and former spouses can be presumed to be the father of the child.

To resolve the overlap, the current law prohibits women from remarrying for 100 days after getting divorced. But the panel suggested scrapping the clause because a child born after the woman’s remarriage would be recognized as the offspring of her current spouse by creating the exception to the 300-day rule. 

In addition, the right to deny paternity would be granted to the child and the mother, ensuring she can register her child under her new spouse instead of the former one.

Under the current system, the only party that holds the right to deny paternity is the woman’s husband.

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