Written by Jun-ichi Ozaki / Translated to English by Ayşe Haruka Oshima Açıkbaş
I have a British male partner whom I have been with for 18 years. Nine years after I met him, I was transferred to live in a different city.
Same-sex marriage in the UK became legal in 2014, and on his birthday the following year, we discussed, “We should get married one day,” and the next day, we gave each other a ring.
In 2015, the “Same-Sex Partnership System” was established in Shibuya Ward. “How wonderful!” I was overjoyed, but then I found out that the ordinance was limited to Shibuya Ward, making it irrelevant to me, who did not live in Shibuya Ward, and my partner, who did not live in Tokyo. We still became happy as we realized that the day our relationship would be seen as worthy of blessings was drawing nearer.
The number of local governments that accept the partnership system is gradually increasing, but all the regions require the two people to live in the same ward and city.
In 2018, we went through the paperwork for our marriage at the British Embassy in Tokyo. Even with my partner living outside of Tokyo and us living apart, this procedure granted us the officiated relationship of being married to one another and we became family under the British law. And so, his family became a part of mine and my family became a part of his.
Even as I knew that it didn’t mean anything under the Japanese law, I can still say from the bottom of my heart that it was the happiest day of my life.
My company has a same-sex partnership system. So I confirmed with them if we are still allowed to apply for it since we were aware that it is not a relationship recognized under the Japanese law. As they answered, “Of course, it is perfectly fine.” I decided to apply.
The company gave me congratulatory money and a honeymoon vacation, and when I announced the occasion to my colleagues from my department, everyone congratulated me. We had a celebration party and I even received gifts.
I had not dreamt of such a happy event happening to me.
Time has passed since then, and although the fact that we were only strangers under the Japanese law felt awkward, I was satisfied with our visits to each other and days spent together.
I was then transferred again, this time to return to my hometown. Finally, we could live together after our marriage under the British law. Since our new house was rented out by my company, I became the head of the household on documents, and our life as a couple started.
After moving in, we went to the ward office to update my residence card. There was a section on the application form to specify the other resident’s “relationship with the head of household” and I wondered what I should write. When I submitted it without filling in the section, the staff at the desk asked me, “What is the relationship between you two?”
Upon contemplating what to say I decided to go with “We are good friends”, to which the staff said, “Then write it down as a housemate.”
We were telling our close friends that we were married under the British law despite living apart, and I was shocked that a third party could yet again declare that we were not family in Japan, where we were now living together for the first time.
Currently in December 2020, more than 60 local governments in Japan have approved the partnership system. However, because the partnership system in Japan is an ordinance or outline unique to each local government, it is not legally binding and different from common-law and civil marriages of the heterosexual couples.
Image: Survey into the Partnership System by the Shibuya-ward and Nijiiro Diversity
Number of certificates issued (by 30 September 2020): 1301
Number of regional offices that started the Partnership system (by 1 October 2020): 60, covering the 29.6% of the national population.
Legend (from top to bottom)
- Prefectures with no partnership system
- Prefectures which have some cities/wards using the partnership system
- Prefectures where the partnership system covers the whole prefecture
- Prefectoral capitals that have the partnership system
- Prefectoral capitals that do not have the partnership system
And there are various differences seen in the partnership system depending on the local government, with differing services and advantages. Here, I would like to explain a little about the difference between an ordinance and a guideline in the context of the partnership system.
An ordinance is a law that is resolved by the council of a local government, and although it is “weaker” than the national law, it is accepted as a law in its respective area. So if the ordinance is violated, the local government can impose penalties.
On the other hand, a guideline is a manual that can be issued by the authority in power, which summarizes the necessary considerations for ensuring equal treatment of same-sex partners during bureaucratic processes.
The partnership systems of Shibuya Ward, Minato Ward, and Toshima Ward are “ordinances” , while the partnership systems of other local governments take the form of “guidelines”. (2020 December)
|Types as seen in regional offices:||grounds specified||Format of certification||Requirements of cohabitation||Cost||Features|
|Shibuya Ward||Ordinance (the relationship must be proved by notarial deed)||partnership certificate||Both must have residence cards registered in Shibuya Ward||5-80,000yen||Notarized deed that is effective in medical care and inheritance.|
|Setagaya Ward||Guideline (notarial act not required. Guardian contract format)||Partnership affidavit||Both must live at the same address||Free of charge||No legal force due to being a guideline. Could be issued to transgender individuals and their LGBT partners as well.|
|Kumamoto City||Guideline (notarial act not required)||Partnership affidavit||One of them must live in Kumamoto City (or have a future plan to do so)||Free of charge||A guideline with no legal force. Also available for opposite sex partners in case one is a sexual minority.|
The partnership oath system of Kumamoto City which started in April 2019, sets the conditions of place of residence as at least one party living in Kumamoto City (or having a plan to do so), and opposite sex couples can also apply if one party is a sexual minority.
Differences between “legal marriage”, “common-law marriage” between the opposite sexes and “the partnership system”.
Although it is a great development that the partnership system is spreading across Japan, there are daily problems and worries encountered which one would not have to think about had the relationship been between the opposite sexes.
If you and your partner are of the opposite sexes, you can legally get married by submitting a marriage registration at no cost. In addition, even if you do not submit a marriage registration, if the two individuals living together meet a certain set of conditions, they will be systematically recognized as a married couple under the “common-law marriage”.
I summarized the differences between “legal marriage”, “common-law marriage” between the opposite sexes and “the partnership system”.
|Spousal subsidy||Joint custody||Inheritance rights||Survivor’s pension||Mortgage under joint name||Life insurance beneficiary||Residence in a public housing||Rental contract||Permission for treatment and visitation rights at medical facilities||Family services such as mobile phone, mileage, credit, etc.|
* 2: Depends on the local government.
* 3: In addition to corrective guidance and recommendations, the name of the business company can be announced.
* 4: Cooperation requested from companies by the local governments.
It was the first in July 2020 that mortgage loans under joint names became possible in common-law marriage and with a notarial act in the partnership system. But since it is provided by a limited number of financial institutions, the reality is that it is still not possible to build a life plan.
Child custody is yet to be allowed under the common-law marriage between opposite sexes. For same-sex partners who are raising adopted children and live as a family, were the custodial parent to die, the surviving partner and the child may not be able to stay as a family.
While visitation rights at hospitals are handled differently depending on the medical institution, receiving consultation and giving consent for treatment when the hospitalized partner is not conscious still requires one to be legally recognized as a close relative, such as blood relatives in the majority of the cases. (This could be due to fears of lawsuits.)
In case your partner is a foreigner like mine, they cannot even get a spouse visa. Unless the foreign partner gets permanent residence, there is the anxiety that you and your partner may not be able to stay together in Japan if they become ill and consequently unable to work in Japan.
Regarding inheritance, it costs about 150,000 yen to issue a notarial act. Though one might think it would simply suffice to leave a written will which can be made only with a pen and a seal (inkan), it should be kept in mind that the family court will need to approve the inheritance, which will increase the time and effort of the procedure.If certain requirements are not met, the written will may be invalidated as well.
In addition, if one partner cannot live in the area of the local government anymore due to a transfer or any other reasons, the partnership that is effective only in that local government would be dissolved. Meanwhile, heterosexual married couples do not have to break off their marriage even while living apart in case one gets transferred for work.
As such, LGBT same-sex partners like us need to face unnecessary barriers that our heterosexual counterparts do not encounter, because the “partnership system” is not equivalent to legal marriage in many ways.
Can we achieve same-sex marriage in Japan?
In June 2019, the Constitutional Democratic Party, the Communist Party, and the Social Democratic Party jointly submitted to the House of Representatives an amendmenent proposal for the Civil Code to legalize same-sex marriage. This would be the first time in Japanese history that a national political party has submitted such a proposal to allow same-sex marriage.
The amendment proposes to amend the Article 739 of the Civil Code, which stipulates the notification of marriage, to state “A marriage becomes effective by notification thereof in accordance with the provisions of the Family Registration”. In addition, the necessary provisions will be established so that adoptions and plenary adoptions will be possible, and the wording will be revised to become gender-neutral (eg, husband / wife as the parties to the marriage, father / mother as parties for parenthood, etc.).
However, no progress has been made upon this proposal.
Let us now take a look at the Constitution of Japan.
Article 24, Paragraph 1 of the Constitution of Japan states that:
“Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.”
In addition, Article 24, Paragraph 2 states,
“With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.”
Now, are we to interpret “both sexes” here as “only between the opposite sexes” as in “male and female”?
In January 2020, former Prime Minister Abe said at the House of Councilors Budget Committee:
“This problem relates to the fundamental basis of the family unit in Japan and it requires extremely careful consideration.”
“It is not assumed that the current constitution allows same-sex couples to marry.”
The current constitution in question was enacted in 1946, which was more than 70 years ago.
Before World War II, Japan adopted a feudal patriarchal system, and unless the patriarch (for example, father or eldest son) allowed it, marriage was not allowed based on the wills of the parties even if they were in love. However, when the Constitution of Japan was drafted after the war, this patriarchal system was abolished and it was stipulated that marriage was to be solely based on the mutual consent of those who wish to get married. Those who drafted the constitution at the time must not have considered that homosexual individuals would also like to get married.
In other words, “based only on the mutual consent of both sexes” can also be interpreted as “marriage is permitted only by the agreement of both parties.”
In addition, Article 13 of the Constitution of Japan states establishing “respect for the individual” as the fundamental goal of the country, and important matters to ensure respect is clearly stated in the Constitution, which is the supreme law.
The Constitution of Japan does not say anywhere that same-sex marriage is prohibited.
If a governmental body really thought that same-sex marriage should not be allowed, it should be stipulated head-on as “prohibited” or “not allowed”. However, no such thing is written anywhere.
Now that diversity is valued in 2020, can’t we think of “both sexes” as “all sexes”?
Article 11 states:
“The people shall not be prevented from enjoying any of the fundamental human rights. These fundamental human rights guaranteed to the people by this Constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights,”
and advocates respect for human rights as the most basic principle of the constitution.
Article 13 states,
“All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.”
Which confirms that each individual is an irreplaceable existence, and guarantees the right to pursue happiness as an indispensable right for a person to live humanly.
In Article 14, which says:
“All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.”
In addition to respecting and valuing each individual’s human rights, it guarantees that one will not be discriminated against in relationships with others and advocates equality before the law as one of the principles of the Constitution.
It is said that the “new human rights” (human rights that are currently not spelled out in the constitution but argued for treatment as extensions thereof) such as “the right to know,” “right to self-determination,” “right to portrait (rights relating to appearance and images),” “right to good environment (the right to live in a good environment),” and “right to sunshine (right to secure sufficient sunlight for new buildings),” which are now commonplace, are based on the right to pursue happiness as stated by the Article 13 of the Constitution.
This “right to pursue happiness” stated in Article 13 of the Constitution has led to the enactment of various laws in line with the times.
Recently, an organization called Marriage For All Japan filed a lawsuit against the Japanese government in February 2019 asking for “the freedom of marriage for all.” With the argument that the disapproval of same-sex marriage violates the equality and dignity of individuals, which should be protected by the Constitution, five lawsuits are currently taking place in Sapporo, Tokyo, Nagoya, Osaka, and Fukuoka at the same time.
Marriage is an option, a choice, even between the opposite sexes.The same applies for same-sex couples, who are not obligated to get married.
So what changes could the legalization of same-sex marriage in Japan bring for people other than those who have been given the choice?
In Europe and the United States, same-sex couples are called DINKS (Double Income No Kids), and are considered to be a demographic with a large amount of disposable income, have no children, and consume for themselves, making them targets for many LGBT-oriented business marketing and election strategies. There are travel agencies in Japan targeting wealthy LGBT tourists from overseas. The LGBT market, also known as the “pink money,” is said to contribute to various economic activities.
Furthermore, it is said that there are overseas organizations that have been strongly pushing the legalization of same-sex marriage to the Japanese government since around 2019. They are neither human rights organizations nor LGBT NPO, but seem to be chambers of commerce in Western countries centered around that of the United States. The American Chamber of Commerce in Japan (ACCJ) lead chambers of commerce in five countries including Australia, Ireland, and Canada, and submitted an unusual statement calling for urgent legislation in Japan, which is the only country out of the seven major developed countries (G7) where same-sex marriage is not legalized.
The reason for this was that there are cases where foreign businesspeople with advanced skills who could potentially contribute to the business in both countries refuse to move to Japan because they cannot maintain legal relationships with their same-sex partners. In addition, it is said that there are many cases in which companies are burdened financially and administratively in order to retain such human resources who have been assigned to Japan.
The chambers of commerce have also warned that skilled Japanese LGBT leaving the country for overseas to seek equal rights and living conditions will put Japan in a disadvantageous spot in the global competition for human resources, which is anticipated to intensify in the future due to the declining birthrate and aging population.
That is indeed true.
What could possibly be the disadvantages of legalizing the marriage between two people in love, even if they are of the same sex?
There would be no effect on the birth rate. Rather, the fertility rate may actually increase if an environment in which same-sex partners can easily raise children as parents is created.
While the partnership system is spreading among local governments, it is difficult to grasp the domestic introduction status and the number of users because there is no government agency in charge of the system where each local government has its own regulations and guidelines. Supporters are calling for the active involvement of the country, awareness and understanding of sexual minorities including LGBT people, and the creation of a basic law to promote the prohibition of discrimination.
In July 2018, the designated city mayors’ association requested the government to comprehensively coordinate the regulations related to sexual minorities and clarify the central organization that will manage them.
Now that discussions on same-sex marriage have begun in the Diet and there is a global wave of promoting diversity and inclusion, it is crucial to continue discussions on the realization of same-sex marriage in the Japanese society, right now.
I would like to look back at the speech made by the former MP Maurice Williamson upon the final examinations and passage of the 2013 bill to allow same-sex marriage in New Zealand:
“Let me repeat to them now that all we are doing with this bill is allowing two people who love each other to have that love recognized by way of marriage. That is all we are doing.” “The sun will still rise tomorrow. … The world will just carry on. So do not make this into a big deal. This bill is fantastic for the people it affects, but for the rest of us, life will go on.”
I hope that the day when the LGBT couples are given the right to and the option of marriage and feel that they have the right to exist as they are will come as soon as possible.
And I will never give up on speaking out in order to achieve same-sex marriage in Japan.
–The2020/01/15 (LGBTQ + / Palette)Common-law
Common-law marriage @ Frequently Asked Questions ④ (Salvia Marriage Counseling)
Same-sex marriage bill, constitutional democratic, etc. submitted by the CDP and others to the Diet – Showing a stance of valuing diversity 2019/6/3 (Bloomberg)
What are “new human rights”? Brief explanation of types and precedents 2020/6/24 (Political dot com)
LGBT employment in Norway – Professor Kanno Yoshiko, Hokkaido University of Education, Japan Institute for Labor Policy and Training (Japan Institute for Labor Policy and Training)
Coverage of housing loans expanded to include common-law marriages 2020/7/23 (Nikkei)1991257
[Argument] Does the Japanese Constitution prohibit same-sex marriage? 2018/02/13 (LLAN LGBT and Lawyers Network for Arai)
“This bill is fantastic for the people it affects, but for the rest of us, life will go on.” Speech of New Zealand MP draws praise. 2020/10/5 (Huffington Post Japan)
Homepages of the organizations that I have referred to:
Shibuya-ward certified NPO, rainbow-colored diversity: https //nijiirodiversity.jp-Freedom of
・ Project to live in your own way “We think (Shibuya).”: Https://jibun-rashiku.jp
・ Marriage For All Japan – Choice of marriage for everyone-: https: // www.marriageforall.jp
・ Out Japan Co., Ltd.: https://www.outjapan.co.jp
・ Queer Life Magazine: https://queerplusup.com