Japanese inheritance law under review again

Japan has a growing proportion of children born out of wedlock. They totaled around 23,000 in 2011, accounting for 2.2 percent of all births. Currently in Japan a child born to unmarried parents is treated differently in inheritance law. being only entitled to half the inheritance of a child born in wedlock. In 1995, when illegitimate births only accounted for 1.2 percent the Japan Supreme Court rejected an appeal to overturn  this civil code provision and give illegitimate children equal inheritance rights.

In 2010 the Justice Ministry drafted  legislation to revise the Civil Code to ensure equal patrimonial inheritance between children born in and out of wedlock, but it was never revised because lawmakers could not reach an agreement on another key issue in the legislation — whether separate surnames should be allowed for married couples.

The United Nations has recommended that Japan redresses discriminatory treatment of such children.  There is a possibility this may now happen as on Wednesday the Japanese Supreme Court‘s Grand Bench stated it will review two cases questioning the codes constitutionality, raising the possibility that the 1995 decision may finally be overturned.

In the two cases, legitimate children in Tokyo and Wakayama Prefecture initially filed suits, claiming that their out-of-wedlock siblings were entitled to only half the amount of their own inheritances. In both cases, family and high courts ruled in favor of the plaintiffs, in accordance with the Civil Code provision.

However, their out-of-wedlock siblings then appealed to the top court, demanding equal inheritance. As defendants, they have argued that the lower court rulings are invalid because the stipulation violates the Constitution.

The Grand Bench, typically comprising all 15 Supreme Court justices, is convened for a case when the ruling may require changes to its interpretation of the Constitution and legal precedents.

In July 1995, the Grand Bench made its first decision on the provision in question, saying as the Civil Code serves to protect the status of legitimate marriage it does not discriminate unreasonably against out-of-wedlock children. It therefore ruled the stipulation did not violate the Constitution, which guarantees equality for all under the law.

But more recently, a series of cases has seen the stipulation ruled unconstitutional by lower courts. In an August 2011 ruling, the Osaka High Court said there are a growing number of circumstances that call for equality of inheritance, including changes in public perceptions of marriage and family relationships.

One justice who believes the Civil code should be changed is Isao Imai, “It is not compatible with the idea of respecting an individual’s dignity if a child is discriminated against when he has no power over choosing whether to be (born) in or out of wedlock.”

Sourced from The Yomiuri Shimbun, The Japan Times

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