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Japan: Supreme Court Gives Out-of-Wedlock Children Equal Inheritance Rights

(Sept. 24, 2013) Japan’s Supreme Court ruled on September 4, 2013, that a Civil Code provision granting half inheritance to children born out of wedlock, compared with what is inherited by their siblings born in wedlock, is unconstitutional. The Court stated that the article in the Civil Code “violates the principle of equality under the law as stipulated in the Constitution.” (H24(ku) 984, S. Ct., Sept. 4, 2013.)

The Court reached a conclusion that was different from its own, prior decision of 1995. The 1995 decision said that article 900, paragraph 4, of the Civil Code respects the position of children born to married parents, while protecting children born out of wedlock by giving the latter half of the amount of the inheritance awarded to the former. (H3(ku) 143, S. Ct., July 5, 1995.) Similar cases were brought to the Court five times between 2000 and 2009, but the Court followed the 1995 decision. (Kongaishi sozoku kitei: “katsute wagorisei” “ko ni sekinin wa nai” (Out-of-Wedlock Inheritance Provision: “There Were Reasons in the Past,” “Not Accountable for the Child”), MAINICHI NEWSPAPER (July 10, 2013).)

In February 1996, the Legislative Council of the Ministry of Justice recommended a partial amendment of the family and inheritance section of the Civil Code, including the recommendation to allow married couples to keep each family name and to give equal inheritance rights to children born within and outside a marriage. (Summary of Draft Amendment of a Part of the Civil Code [in Japanese], Legislative Council Decision, Feb. 26, 2006.) The recommendations were not taken by the Cabinet. There was strong opposition, especially to the change in the family name system. The opponents believed that allowing a married couple to have different family names would lead to the destruction of the traditional family system. They also believed giving an out-of-wedlock child equal inheritance rights could encourage extramarital affairs. (Japan’s Top Court Voids Controversial Inheritance Clause, GLOBAL POST (Sept. 4, 2013).)

In its recent ruling, the Court reaffirmed that the Japanese people respect the marriage system, as shown by the facts that (1) when an unmarried woman becomes pregnant, the father of the child will often marry her or, at least, try to marry her, to avoid making the child be born out of wedlock; and (2) the proportion of children born out of wedlock in Japan is still very low, 2.2% in 2011. (H24(ku) 984, supra.) By comparison, in the United States, about 41% of children were born out of wedlock in 2011. (Brad E. Hamilton, Joyce A. Martin, & Stephanie J. Ventura, Births: Preliminary Data for 2011, 61:5 NATIONAL VITAL STATISTICS REPORTS (Oct. 3, 2012).)

However, the Court stated that recently more Japanese people have come to think that it is unacceptable to discriminate against children who cannot choose their parents, and there is more focus on individual rights. Taking into account more diversified public views on family and a global trend to eliminate discrimination against out-of-wedlock children, the Civil Code clause has been in violation of the Constitution from as far back as July 2001, the Court stated, when the inheritance in question in the case first became a matter of dispute after the father died. The court noted in the decision that the decision would not affect inheritance cases which were already decided by courts or settled by the parties. (H24(ku) 984, S. Ct., Sept. 4, 2013.)