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Hayabusa Asuka

Tokyo, Japan

1. Supreme Court Ruling

In early September of 2013, the Supreme Court of Japan held that the long-standing law that children born out of wedlock are legally entitled to only half the inheritance of that of a “legitimate” child violates the Constitution of Japan (in particular the constitutional principal of equality under the law). In its decision, the court said that a child should not be at a disadvantage just because he or she has unmarried parents, which is of course something that a child has no choice about. The court further indicated that, in coming to its decision, changes in attitudes toward family arrangements and the global trend to eliminate discrimination were taken into account. More specifically, Chief Justice Takesaki said, “...children themselves have no control whatsoever over their parents’ non-legal marital status,” and added that it is unforgivable that children suffer because of the marital status of their parents.

The decision was unanimous among the 14 justices (one did not join due to a conflict of interest). Although the law apparently violated the Constitution as far back as 2001, the court said that inheritance claims will not be retroactive for cases already settled. It appears that the court was concerned about confusion arising from invalidating settlements of inheritance disputes that have already been decided. One can imagine, however, that such a position on the retroactive effect of the decision is extremely hard to accept for many “illegitimate”children who have already resolved legal disputes over inheritance based on the law to date.

The unanimous decision by the top court was in response to two separate claims filed by people in Tokyo and Wakayama Prefecture who were born out of wedlock whose fathers died in 2001. They argued that being deprived of full inheritance rights amounts to an infringement of the principle of unconditional legal equality.

2. Prior History

This was the first time the law in question had been changed since it took effect in 1898. Although the law did come under scrutiny in 1995, the law was voted constitutional (by a vote of 10 to 5) on the basis that “its acknowledgement of half heir-ship for illegitimate children rather means their rights are protected.”

Thereafter, the law was examined several times, but each time it was found to be constitutional. The votes, however, were getting closer and, in fact, in 1996 a legislative council under the Justice Ministry concluded that inheritance rights must be made equal regardless of the situation surrounding one’s birth. Unfortunately, the recommendations of the council were dismissed by the conservative Liberal Democratic Party, which was concerned about undermining the nation’s traditional family values and possibly encouraging adultery.

3. Enactment of Bill

As a result of the above-noted Supreme Court decision, in early December 2013, a bill was enacted to repeal Article 900 of the Civil Code, which had limited the inheritance to which an out-of-wedlock child was entitled to half that of an “in-wedlock” child. The change significantly improves the rights of children born out of wedlock, and ends years and years of what was viewed as discrimination against such children. Nevertheless, some conservative members of the ruling Liberal Democratic Party voiced opposition to the change, saying it would “destroy the traditional family system.”

4. Did the Bill go far enough?

Even with this significant improvement, some civic groups and experts are still not totally satisfied because the bill fails to strike from the family registration law a clause stipulating
the need to register a child’s “legitimacy” at the time of birth. It is felt that having to indicate on a birth registration that a child is “illegitimate” is not fair and brings about undue emotional
pain to both the parent and the child. In a sense, it can be argued that the registration requirement continues a form of discrimination against such children. The bill to repeal the
registration provision was rejected as the LDP and Nippon Ishin no Kai (Japan Restoration Party) voted against it.

5. Conclusion

Other industrial nations with similar discriminatory provisions long ago changed to guarantee equality in inheritance rights between legitimate and illegitimate children. Although this recent change in the law in Japan has come far too late for many, and perhaps does not go far enough (both in terms of the family registration issue and the lack of retroactive effect), it still represents a very significant step in the right direction.

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