"The study of Divorce Law of "the principle of breakdown of marriage" in Japan -The analysis of decisions in Tokyo district court after the enforcement of Old Civil Law-"

• Project/Area Number: 05620007
• Research Category: Grant-in-Aid for General Scientific Research (C)
• Allocation Type: Single-year Grants
• Research Field: Fundamental law
• Research Institution: KUMAMOTO UNIVERSITY
• Principal Investigator: YAMANAKA Itaru Kumamoto University, Faculty of Law, Professor, 法学部, 教授 (90167718)
• Project Period (FY): 1993 – 1994
• Project Status: Completed (Fiscal Year 1994)
• Budget Amount: ¥1,900,000 (Direct Cost: ¥1,900,000); Fiscal Year 1994: ¥700,000 (Direct Cost: ¥700,000); Fiscal Year 1993: ¥1,200,000 (Direct Cost: ¥1,200,000)
• Keywords: Judicial divorce / Cause of divorce / Principle of breakdown of marriage / District court in Tokyo / Art.813 of Old Civil Law / Principle of fault divorce

Research Abstract

I examined about 1300 decisons bearing on divorce of the district court in Tokyo from 1899 to 1949. The cases submitted by wife are 967, and the probability of wife's winning is 87.7%. Many of the causes of divorce submitted by wife are (1) Desapperance more than three years (2) Desertion (3) Cruelty and insult (4) Punishment. When husband is a plaintiff, the causes are (1) Desertion (2) Disappearance more than three years (3)Adulty (4) Cruelty and insult. Those decisons are very noticeable, which were judged from the viewpoint of "the principle of breakdown of marriage". The principle was evolved concerning the construction on Art.813, sec.5 of Old Civil Law. (1) Adultery of husband : Tokyo district court found "the serious insult for wife". Those cases are that husband cohabited his mistress (including after separation) or admitted her into his house and they eloped, futher wife was unregarded from husband who kept having a relation with his mistress. While the court amended the inequality of Old Civil Law which provided only adultery of wife for a cause of divorce, admitted the divorce as marital relations have already broken down by adultery of husband. But the claims of divorce by adulterate husband weren't permitted. (2) Violence of husband : There are cases which were applicable to "Curelty with an unbearable living together" because of harshness and repetition of violence. On the other hand, the court attched importance to whether marital relations have broken down by adultery of husband or not. As examples of such cases, unconscious violent deeds by insane fits, negative insults without nursing wife's illness, and violences with the background of husband's adultery.
As is stated above, we can find out the unfolding of the leagal principle on "the principle of breakdown of marriage" as to concrete decisions of Tokyo district court before existing Civil Law adopts the principle for the first time.