"never Had a Choice and Have No Power to Alter": Illegitimate Children and the Supreme Court of Japan

• Citation: Vol. 44 No. 3
• Publication year: 2016

"Never Had a Choice and Have No Power to Alter": Illegitimate Children and the Supreme Court of Japan

Shigenori Matsui^*

Table of Contents

I. Introduction...............................................................................579

II. Japanese Law Regarding Marriage and Children..............580

A. Marriage and Children............................................................580

1. Legal Marriage..................................................................580
2. Common Law Marriage and De Facto Marriage.............582
3. Legitimate Children and Illegitimate Children.................586

B. Family Registration, Local Residence Registration, and Illegitimate Children................................................................589

1. Family Registration and Local Residence Registration Systems..............................................................................589
2. Family Registration, Local Residence Registration, and Marriage.....................................................................590
3. Family Registration, Local Residence Registration, and Childbirth...................................................................591

C. Discrimination Against Illegitimate Children in Japan...........594

1. Social Discrimination........................................................595
2. Statute-Based Discrimination............................................596

a. Discrimination with Respect to the Grant of Citizenship..................................................................596
b. Discrimination with Respect to Succession.................597

3. Reluctance of the Government to Abandon Discrimination...................................................................599

III. Illegitimate Children and the Supreme Court of Japan..............................................................................................601

A. The Japanese Courts' Reluctance to Eradicate Discrimination.........................................................................601

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1. Discrimination on the Grant of Citizenship......................601
2. Discrimination with Respect to Succession.......................602
3. Changing Society and Changing Public Opinion..............604

B. The Supreme Court of Japan on Illegitimate Children and Citizenship................................................................................606

1. Facts..................................................................................606
2. Discrimination Held Unconstitutional..............................606
3. Granting Japanese Citizenship..........................................608

C. The Supreme Court of Japan on Illegitimate Children and Succession................................................................................609

1. Facts..................................................................................609
2. Article 900(iv) Proviso of the Civil Code Struck Down .... 610
3. Retroactivity......................................................................613

IV. Future Agenda for Reform......................................................614

A. Constitutional Significance of the Rulings...............................614
B. Aftermath of the Rulings..........................................................615
C. Comparison with the United States Supreme Court................617

1. Comparison with United Stated Supreme Court Cases.....617
2. Different Approach Adopted by the Supreme Court of Japan.................................................................................620

a. Analytical Framework.................................................620
b. Applications to the Cases before the Supreme Court of Japan............................................................622

D. Remaining Discrimination in Japan........................................623

1. Obligation to Mark a Child as Illegitimate.......................624
2. Acknowledgment................................................................626

E. Issues Left to Be Addressed......................................................627

1. Changing Families, Presumption of Paternity, and Legitimacy.........................................................................627
2. The Need to Revisit Succession Law: Protecting Abandoned Wives..............................................................630
3. The Need to Revisit Family Registration, Local Residence Registration and Family Name.........................633

V. Conclusion..................................................................................635

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I. Introduction

Many countries in the world once distinguished between legitimate children and illegitimate children and maintained various forms of discrimination against illegitimate children.¹ Gradually, such discrimination came to receive strong criticism and was eventually abandoned in many places to grant equal status to illegitimate children. In Japan, although the number of such children is quite small, illegitimate children are still subjected to social prejudice and various forms of legal discrimination. In the past, Japanese courts had been reluctant to find in favor of constitutional challenges involving discrimination against illegitimate children despite the constitutional guarantees of the equality right in Article 14² and the mandate of sexual equality and individual dignity in family law matters in Article 24 enshrined in the Constitution of Japan.³ However, recently, the Supreme Court of Japan struck down two statutory provisions involving discrimination against illegitimate children—one provision discriminating against illegitimate children with respect to granting Japanese citizenship,⁴ and the other provision discriminating against illegitimate children with respect to succession.⁵ These rulings indicate the emerging willingness of the Supreme Court of Japan to protect illegitimate children.

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This Article intends to analyze these recent developments in Japan to examine the current status of illegitimate children and to explore the future agenda for reform. In Part II, this Article describes the legal status of illegitimate children in Japan—explaining the marriage system, family registration system, and local residence registration system. It also explains the different treatment between legitimate children and illegitimate children and the reluctance of the Japanese government to abandon discrimination. Part III examines two recent rulings of the Supreme Court of Japan on the unconstitutional discrimination against illegitimate children—explaining the background, lower court judgments, and basic reasoning of the rulings. Part IV explores the implications of the rulings of the Supreme Court of Japan and examines the potential future agenda for reform. Although Japan has taken very significant steps in granting equal status to illegitimate children, this Article concludes that there is still a long way to go to achieve equality between legitimate and illegitimate children and to eliminate the concept of illegitimacy.

II. Japanese Law Regarding Marriage and Children

In order to examine discrimination against illegitimate children, it is essential to have a basic understanding of the meaning of legal marriage and its implication for the status of children. It is also important to understand the significance of the family registration and local residence registration system in Japan to know the difference between legitimate children and illegitimate children.

A. Marriage and Children

1. Legal Marriage

In order to become legally married in Japan, a man and a woman must have the intent to get married, satisfy the requirements for marriage stipulated in the Civil Code, and file a marriage registration application in accordance with the Family Register Act at a municipal office.⁶ The requirements for marriage are as follows:

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a. The man is at least eighteen years old and the woman is at least sixteen years old,⁷
b. The man and the woman are not married already,⁸
c. The man and the woman are not in a close family relationship,⁹ and
d. 100 days have passed for the woman after a divorce or rescission of marriage.¹⁰

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Japanese law does not provide for same-sex marriage. Thus, a marriage registration application from a same-sex couple is likely to be rejected by the municipal officer.¹¹ The marriage registration application must be signed by the applicants with additional signatures from two adult witnesses.¹² The municipal officer will review the application and check the couple's personal information to confirm their eligibility and fulfillment of all the requirements.¹³ Once accepted by the municipal officer, the marriage is valid and will be entered on the family register.¹⁴

2. Common Law Marriage and De Facto Marriage

Some couples choose to have a common law marriage rather than a legal marriage. Such couples might want to start living like a married couple before submitting a marriage registration application. Others may be forced to have a common law relationship because legal marriage is not an option. For instance, a couple may be prevented from marrying because one party has a legal spouse, though the legal marriage with that spouse may have totally broken down.¹⁵ In order to have a common law marriage, the couple must have the intent to marry and social circumstances must exist to show

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that the couple is living like a married couple.¹⁶ Merely living together is not enough.¹⁷ The only difference between a legal marriage and a common law marriage is the absence of marriage registration.¹⁸

Moreover, in order to become legally married, a couple must choose the family name of the husband or wife as their common family name.¹⁹ A married couple cannot maintain different family names, and married spouses are generally prevented from adding their birth name as a middle name.²⁰ Before the Pacific War, couples in Japan...