オーストラリアの家族法 : 婚姻の成立と解消を中心として

抄録

In Japan to establish Family Law legal rights, a marriage must be registered. The legislation is a separate formality from the marriage ceremony. The marriage ceremony alone does not constitute marriage in Japan. Property distribution problems and inequalities upon breakdown of the relationships arises from the failure, or, the inability to register the marriage. In the past a couple could not register the marriage unless certain legal requirements were met, for example, one requirement being parental consent. These relationships were called "Naien". The couple's relationships lacked register was not marriage, so they could not be treated as the married couple, but the couple had the intention to register and had been living together as a married couple, so the "Junkon principle" was developed to bring these couple, who could not register the marriage, under the jurisdiction of Family Law. The "Junkon principle" allowed the lack of legislation to be overcome provided the couple met certain requirements. However, De Facto couples are increasing in Japan. In Japan these couples are ones that have no clear intention to register as a married couple, this could be evidenced by their choosing not to register when there was no obstacles preventing them doing so. These relationships are offered no legal protection. This situation would usually work to the women's disadvantage as most property would be held in the man's name. Therefore there is a need to address this problem as the "Junkon principle" can't be extended to Non-"Naien" couples, Problems of this kind are not limited to Japan. In Australia there had been an attempt to address this problem by the creation of De Facto Relationships Act N.S.W..In Australia they have enacted the bases of divorce, which is the creation of Non-Fault Divorce Law. There is only one basis of divorce, called irrecoverable marriage breakdown, proved by 12 months separation. In this paper I will examine the Australian approach, some of which is applicable to Japanese situation and would help to redress existing inequities.