Legal experts said Wednesday’s landmark decision by the Supreme Court that the Civil Code provision denying full inheritance rights to heirs born out of wedlock is unconstitutional was welcome but late in coming.
The fact that the justices reached the decision unanimously, they say, will put lawmakers under heavy pressure to revise the controversial clause as soon as possible.
“I am overjoyed that I have been able to recover my value as a person, and I am overwhelmed that we have finally moved forward,” said one of the plaintiffs in Wakahama Prefecture after the ruling.
“I hope that the law will be revised as soon as possible, and I am hopeful that we will be able to build a society free of discrimination.”
The decision was the latest in a series of victories by people born out of legal wedlock, who have for years cleared hurdles, step by step, to secure fair treatment and their full human rights.
For example, in 1995 a discriminatory column was removed from residence certificates that made public their “illegitimate” origin of birth. Then in 2008 the top court ruled a law unconstitutional that stipulated half-Japanese children could not obtain Japanese citizenship unless their parents were legally married.
But the Civil Code clause that people born out of wedlock are legally entitled to only half of what their “legitimate” siblings inherit from an estate has long remained unaddressed.
The reason, according to Waseda University law professor Masayuki Tanamura, has partly been due to the conservative belief that has prevailed among some politicians that granting illegitimate children a full share of an inheritance risks toppling Japan’s “conventional family values.”
“The reality is that if you try to change the status quo of family laws in Japan, you always encounter staunch opposition from people who say doing so will harm the legitimacy of legal marriage and (in the case of protecting the rights of out-of-wedlock children) encourage adultery,” Tanamura said.
This mindset partly comes from their political ambitions, he said. In a country where the turnout by young voters is unusually low, many politicians view seniors as their main constituency and thus tend to prioritize their needs.
A survey conducted by the Cabinet Office in 2012 found that the percentage of people opposed to discrimination against illegitimate children stood at 70.7 percent among respondents in their 20s, but the rate fell to 51.7 percent among those in their 70s.
But the Supreme Court acknowledged that Japanese families are growing more diverse in nature.
“There are more couples now who are divorced and not legally married. The number of those who raise their kids alone is also on the rise,” Tanamura said.
Indeed, the number of out-of-wedlock children has increased over the years, coming to about 23,000 in 2011 compared with 14,000 in 1995, according to a survey by the Health, Labor and Welfare Ministry.
In the case of Sumiko Tanaka, 66, a supporter of the plaintiffs in the cases before the Supreme Court, she and her male partner have cohabited for 40 years without registering a marriage. The couple decided not to get officially married because they “wanted to keep their relationship as equal as possible,” Tanaka told The Japan Times on Thursday.
She noted that she considers the idea of women abandoning their family name upon marriage a revolting sign of subordination to their husband, or vice versa.
Another tailwind to the top court’s decision was the international pressure on Japan to do something about its discrimination against children born out of wedlock, according to lawyer Fujiko Sakakibara.
The trend among developed countries began to shift toward rooting out discrimination against illegitimate children in the 1960s. The move gained momentum with the United Nations’ 1989 adoption of the Rights of the Child, leading to widespread acknowledgement of full heirship for such children.
The situation has left Japan one of the few nations with a clause widely considered obsolete. Repeated requests by human rights groups worldwide, such as the U.N. Human Rights Committee, to rectify the law also played a part, she said.
“Japan is often known for its tendency to neglect human rights treaties,” Sakakibara said, but years of strident international pressure finally “made it ashamed of its attitude,” and “take the warnings seriously.”
The top court’s decision was in response to two court cases on inheritance disputes, in Tokyo and Wakayama Prefecture, both initiated by out-of-wedlock parties seeking equal inheritance rights.
The fathers of the plaintiffs died in 2001 in both cases. With this in mind, the Supreme Court concluded Wednesday the controversial clause was already unconstitutional in 2001.
But the court also said the ruling is not retroactive, meaning illegitimate heirs who have already accepted a limited inheritance will not benefit from the decision.
Sakakibara still lauded this provision as “wise,” as allowing it to be retroactive would have dredged up a torrent of disputes and would have been a source of great turmoil.
Several ruling bloc lawmakers indicated Wednesday that they may submit a bill to the Diet to delete the unconstitutional clause of the Civil Code as early as the extraordinary session this fall.
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