Statement Concerning the Revision of the Civil Code on the Statutory Shares in Inheritance of Children Born Out of Wedlock
On September 4, 2013, the Grand Bench of the Supreme Court ruled that the first half of proviso of Article 900 (iv) of the Civil Code (the “Proviso”), which provides that “the share in inheritance of a child born out of wedlock shall be one half of the share in inheritance of a child born in wedlock,” was unconstitutional and nullified as the Proviso violated Article 14-1 of the Constitution, which guarantees equality under the law.
Upon receiving the decision, the House of Councillors in a plenary session passed and enacted the “bill of revising a part of the Civil Code” which deleted the Proviso and eliminated the discrimination concerning the statutory share in inheritance of a child born outside of marriage. Although the revision was realized as a matter of course complying with the judgment made by the Supreme Court that the Proviso was unconstitutional, the JFBA welcomes the realization of the revision since that was what the JFBA had long been seeking after.
In addition to the above revision of the Civil Code, a “bill to revise a part of the Family Register Act (Census Registration Act),” which is to delete the clause of Article 49-2 (i) of the Family Register Act, making it obligatory to enter whether a child is born in or out of wedlock in the written notification of birth when having the birth of a child registered, was submitted to the Upper House as lawmaker-initiated legislation. However, the bill was voted down by just a single vote by 118 votes to 117 votes in the plenary session of the House of Councillors, and not enacted. It has been explained that the reason why there was such a clause stipulating the obligation to enter whether a child is born in or out of wedlock was that since there was a difference in the shares in inheritance of children born in and out of wedlock, there was a certain rationality in setting a section in the notification differentiating children born in and out of wedlock. Therefore, if the Civil Code on the statutory share in inheritance was revised, which is the precondition for differentiating between children born in and out of wedlock in the notification of birth, Article 49-2 (i) should be revised. Also, the JFBA has been advocating that as there is no rationality in discriminating against the shares in inheritance of out-of-wedlock children, Article 49-2 (i) of the Family Register Act should be revised. It is truly regrettable that the House of Councillors failed to take advantage of the opportunity to revise the Family Register Act.
Furthermore, there are still a number of discriminatory provisions in the Civil Code, including, Article 750, which prescribes that married couples shall have the same surnames, and does not allow couples to have separate surnames, as “a husband and wife shall adopt the surname of the husband or wife in accordance with that which is decided at the time of marriage”; Article 733, which prescribes that only “a woman may not remarry unless six months have passed since the day of dissolution or rescission of her previous marriage”; and Article 731, which stipulates that marriageable age for men and women is different, as “a man who has attained 18 years of age, and a woman who has attained 16 years of age may enter into marriage.” Concerning such provisions, the United Nations Human Rights Committee and the Committee on the Elimination of Discrimination against Women (CEDAW) have repeatedly expressed their concerns and advised the Japanese government to take immediate measures towards revising the discriminatory provisions of the Civil Code.
As stated above, the JFBA strongly urges the Diet and the Japanese government to revise Article 49-2 (i) of the Family Register Act as well as to immediately revise the discriminatory provisions of Articles 750, 733, and 731 of the Civil Code.
December 6, 2013
Japan Federation of Bar Associations