“It’s not my fault to be born out of wedlock!”

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“It’s not my fault to be born out of wedlock!”

Post by Admin on Tue Oct 05, 2010 11:17 am

“It’s not my fault to be born out of wedlock!”

We should not to and we don’t need to distinguish them – whether they are born from married or unmarried parents. This was the idea to abandon using the term “illegitimate child” (Hi-chakushutsushi in Japanese) publicly from political correctness point of view for long by now. However, family lawyers still encounter a need to describe a child born out of legal marriage that there is the matter requiring us to call them as “a child who is not legitimate” (chakushutsu denai ko) because it says in the law.

Art. 900 of the Civil Code regulate a clear distinction of succession rights between a legitimate child and “a child who is not legitimate” that the latter receives only a half of legitimate children’s portion. The provision which states inequality of legal heritable portion has been questioned as a breach of the Constitution Art. 14 providing for equality for all and has been challenged at the Supreme Court for a number of times since the decree of 5th July 1995. Despite the once and only remarkable judgment made at the Tokyo High Court in 1993 where it admitted its unconstitutionality, the Supreme Court remained in a position to rationalize the distinction mainly for the reason because it justifies the relevance of marriage as an institution, up until the decree of 30th September 2009. Two out of Five judges in this recent case even so showed dissenting opinions (there is five judges in each Petty Bench at the Supreme Court).

On the other hand, the Supreme Court decided the other distinction between legitimate child and “a child who is not legitimate” under Nationality Act unconstitutional on 4th June 2008. Art. 3-1 of the Act stated that “a child who is not legitimate” born between Japanese father and non-Japanese mother will acquire Japanese nationality only if the child acquire legitimacy, as a consequence of acknowledgement of the father and the parents’ marriage. The Court did not consider that a provision under the Nationality Act which makes difference between a legitimate child and “a child who is not legitimate” in acquisition of nationality as rational for the first time. The decree then derived a revision of the Act later in the same year.

Suddenly in early July this year, the germ of a new step forward to eliminate the above inequality of legal heritable portion was announced. It was reported that the Supreme Court has decided to sit in the Grand Bench in dealing with the very issue for the first time since the 1995 trial where 5 judges out of 15 dissented. A special appeal was made by “a child who is not legitimate” in Wakayama prefecture this time that he has claimed for providing equally portion to legitimate child and “a child who is not legitimate” in response to the decrees of Wakayama Family Court and Osaka High Court because the both courts decided in conformity with the current regulation.

The news means a lot that no doubt the Supreme Court is serious to tackle with the issue of inequality of children’s succession rights at last and therefore it is probable to derive different interpretation and conclusion. If it resulted to eliminate the discrimination, it might affect many phases of family lives such as the birth rate of children born out of wedlock which has long been extremely low at around 2%. It is utmost importance for us all to approve the truth finally that every child is legitimate.

Chocoholic (tamatei@jura.niigata-u.ac.jp)

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