JAPAN: Top court rules children born out of wedlock entitled to equal inheritance

[4 September 2013] - 

In a landmark decision over an issue that has drawn international criticism, Japan’s top court on Sept. 4 reversed its earlier interpretation, ruling that a Civil Law clause designating a lesser inheritance to a child born out of wedlock than a legitimate sibling is unconstitutional.

“(The provision) runs counter to the Constitution, which guarantees equality for all under the law, and therefore is void,” said Hironobu Takesaki, chief justice of the Supreme Court, who presided over the grand bench of all the justices at the court.

The ruling of a law as unconstitutional is the ninth rendered by the top court and is the first such decision for a Civil Law provision.

The decision is expected to prompt the Diet to overhaul the Civil Law in the near future.

What is at issue is paragraph 4 of the Civil Law’s Article 900, which stipulates that a child born out of wedlock is entitled to inherit half of the worth of the estate that a legitimate child is eligible to.

In a 1995 ruling, the Supreme Court’s grand bench defended the provision as constitutional. The justices decided that the paragraph does not represent discrimination without reasonable grounds as it respects the position of a legitimate child, while protecting a child born out of wedlock.

The provision was established in the old Civil Law, which went into force in 1898. The current Civil Law, adopted in postwar years, retained the clause. But it has been a source of criticism as “discrimination by birth.”

In 1996, the Legislative Council, an advisory panel to the justice minister, made a proposal for overhauling the Civil Law to stipulate that the value of inheritance should be equal for a child, regardless of being born in or out of wedlock.

Successive Cabinets, however, have failed to submit a revised bill in the face of opposition from conservative Diet members who contend that a revised Civil Law could encourage extramarital affairs. The United States and many European and Asian nations have moved to end discrimination against illegitimate children.

The United Nations has issued an advisory 10 times for Japan to eliminate discrimination since the 1995 ruling by the court’s grand bench.

The Supreme Court’s latest decision was delivered in connection with two disputes over an estate: one involving a man in Tokyo who died in July 2001, and the other concerning a man in Wakayama Prefecture who passed away in November 2001.

The side representing illegitimate children made a special appeal to the top court after lower courts held the Civil Law provision constitutional.

The Supreme Court usually convenes the grand bench of all justices, instead of a five-member petty bench, when it rules that a law is unconstitutional.

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