6.4 Family law and inheritance

Japanese family law has evolved significantly, blending traditional values with modern principles. From the feudal ie system to post-war reforms, it now balances individual rights with collective family interests. The Civil Code serves as the primary source, covering marriage, divorce, parent-child relationships, and inheritance.

Recent changes address societal shifts, including equal inheritance for children born out of wedlock and lowering the age of adulthood. Challenges persist in areas like gender equality, LGBTQ+ rights, and adapting to changing family structures amid declining birth rates and an aging population.

Historical context of family law

• Family law in Japan evolved significantly from feudal times to the modern era, reflecting societal changes and external influences
• Understanding historical context provides insight into current Japanese family law and its unique characteristics within the broader framework of Japanese Law and Government

Pre-Meiji family structure

Top images from around the web for Pre-Meiji family structure

• 

  Caste - Wikipedia View original

  Is this image relevant?

• 

  mrkelleyglobal2 - Japanese Feudalism View original

  Is this image relevant?

• 

  File:Tokugawa bakufu structure.PNG - Wikimedia Commons View original

  Is this image relevant?

• 

  Caste - Wikipedia View original

  Is this image relevant?

• 

  mrkelleyglobal2 - Japanese Feudalism View original

  Is this image relevant?

1 of 3

Top images from around the web for Pre-Meiji family structure

• 

  Caste - Wikipedia View original

  Is this image relevant?

• 

  mrkelleyglobal2 - Japanese Feudalism View original

  Is this image relevant?

• 

  File:Tokugawa bakufu structure.PNG - Wikimedia Commons View original

  Is this image relevant?

• 

  Caste - Wikipedia View original

  Is this image relevant?

• 

  mrkelleyglobal2 - Japanese Feudalism View original

  Is this image relevant?

1 of 3

• Ie system dominated pre-Meiji family structure based on patriarchal hierarchy and primogeniture
• Emphasized collective family unit over individual rights and responsibilities
• Household head (usually eldest male) held significant legal and social authority over family members
• Women and younger siblings had limited rights within the family structure

Influence of Western legal systems

• Meiji Restoration (1868) marked beginning of Western legal influence on Japanese family law
• French and German civil codes served as primary models for early Japanese legal reforms
• Introduced concepts of individual rights and legal equality, challenging traditional family structures
• Gradual shift from customary law to codified family law system

Post-war reforms

• Allied Occupation (1945-1952) brought sweeping changes to Japanese family law
• New Constitution of 1947 enshrined principles of individual dignity and gender equality
• Abolished ie system and patriarchal family structure
• Introduced equal inheritance rights for all children regardless of gender or birth order
• Established more egalitarian marital relationships and simplified divorce procedures

Japanese Civil Code

• Civil Code (民法, Minpō) serves as the primary source of family law in Japan
• Balances traditional Japanese values with modern legal principles and international standards
• Undergoes periodic revisions to address changing societal needs and family dynamics

Structure of family law provisions

• Book IV of Civil Code dedicated to family law (親族法, Shinzoku-hō)
• Covers marriage, divorce, parent-child relationships, and adoption
• Book V focuses on inheritance law (相続法, Sōzoku-hō)
• Supplemented by Family Registration Law and other related statutes
• Organized into chapters addressing specific aspects of family relationships and obligations

Recent amendments and updates

• 2013 amendment allowed children born out of wedlock to inherit equally with legitimate children
• 2016 revision lowered age of adulthood from 20 to 18, affecting marriage age and parental consent requirements
• 2018 update to Civil Code introduced new rules for division of pension benefits in divorce cases
• Ongoing discussions about potential reforms to surname regulations and same-sex partnerships

Marriage and divorce

• Marriage and divorce laws in Japan reflect a blend of traditional values and modern legal principles
• Recent trends show declining marriage rates and increasing divorce rates, prompting legal and social discussions

Legal requirements for marriage

• Minimum age for marriage: 18 for both men and women (as of 2022)
• Parental consent required for individuals under 20 years old
• Prohibition of bigamy and incestuous marriages
• Registration at local government office (koseki) required for legal recognition
• No requirement for religious ceremony, though many couples opt for traditional Shinto or Western-style ceremonies

Divorce procedures

• Four types of divorce recognized in Japan:
  1. Divorce by mutual consent (協議離婚, kyōgi rikon)
  2. Divorce by family court mediation (調停離婚, chōtei rikon)
  3. Divorce by family court judgment (審判離婚, shinpan rikon)
  4. Divorce by district court judgment (裁判離婚, saiban rikon)
• Mutual consent divorce most common, accounting for about 90% of all divorces
• No-fault divorce system, but courts may consider fault in property division and custody decisions

Property division upon divorce

• Principle of equitable distribution applies to marital property
• Separate property (inherited or pre-marital assets) generally excluded from division
• Courts consider factors such as contribution to marriage, earning capacity, and fault when determining division
• Pension splitting allowed since 2007, enabling divorced spouses to claim portion of ex-partner's pension

Parent-child relationships

• Parent-child relationships in Japanese law balance traditional family values with modern child welfare principles
• Increasing focus on children's rights and best interests in legal proceedings and policy decisions

Legal status of children

• All children have equal legal status regardless of parents' marital status (since 2013 amendment)
• Legitimation possible through subsequent marriage of parents or acknowledgment by father
• Paternity can be established through legal action if father refuses to acknowledge child
• Surname of child typically follows father's surname, but exceptions possible in certain circumstances

Parental rights and responsibilities

• Parental authority (親権, shinken) shared equally by both parents during marriage
• Includes rights and duties related to care, education, and management of child's property
• In case of divorce, parental authority typically awarded to one parent (usually custodial parent)
• Non-custodial parent may be granted visitation rights (面会交流権, menkai kōryū-ken)
• Child support obligations continue even if parent loses parental authority

Adoption laws

• Two types of adoption in Japan:
  1. Regular adoption (普通養子縁組, futsū yōshi engumi)
  2. Special adoption (特別養子縁組, tokubetsu yōshi engumi)
• Regular adoption allows for adoption of adults and maintains legal ties with biological family
• Special adoption (introduced in 1988) severs ties with biological family, primarily for young children
• Recent reforms have expanded eligibility for special adoption to promote child welfare

Family registration system

• Family registration system plays crucial role in Japanese family law and personal identification
• Serves as official record of family relationships and personal status changes

Koseki system overview

• Koseki (戸籍) serves as official family registry in Japan
• Records births, deaths, marriages, divorces, and adoptions
• Organized by household unit rather than individual
• Each Japanese national belongs to one koseki, typically that of their parents
• Non-Japanese residents registered in separate alien registration system

Legal implications of family registry

• Koseki entries serve as primary proof of family relationships and personal status
• Required for various legal and administrative procedures (marriage, inheritance, passport applications)
• Changes in family status (marriage, divorce, adoption) must be registered in koseki to have legal effect
• Can present challenges for non-traditional families or those with complex family histories
• Privacy concerns arise due to detailed personal information contained in koseki records

Inheritance law

• Japanese inheritance law balances traditional family values with modern principles of individual rights
• Aims to ensure fair distribution of assets while respecting testator's wishes to some extent

Intestate succession

• Applies when deceased leaves no valid will
• Statutory heirs divided into three ranks:
  1. Children and spouse
  2. Parents and spouse (if no children)
  3. Siblings (if no parents or spouse)
• Spouse always inherits, regardless of presence of other heirs
• Distribution ratios:
  • Spouse + children: Spouse 1/2, children 1/2 (divided equally)
  • Spouse + parents: Spouse 2/3, parents 1/3
  • Spouse + siblings: Spouse 3/4, siblings 1/4

Wills and testaments

• Increasing popularity of wills in Japan, though still less common than in Western countries
• Three main types of wills recognized:
  1. Holographic will (自筆証書遺言, jishu shōsho igon)
  2. Notarized will (公正証書遺言, kōsei shōsho igon)
  3. Secret will (秘密証書遺言, himitsu shōsho igon)
• Strict formalities required for valid will execution
• Testator can freely dispose of "free portion" of estate after accounting for legally reserved portions

Forced heirship

• System of legally reserved portions (遺留分, iryūbun) protects certain heirs from disinheritance
• Applies to lineal descendants, parents, and spouse
• Reserved portions:
  • Lineal descendants: 1/2 of intestate share
  • Parents: 1/3 of intestate share
  • Spouse: 1/2 or 1/3 of intestate share (depending on other heirs)
• Heirs can claim reserved portion through legal action if will infringes on their rights

Gender equality issues

• Gender equality in family law remains ongoing challenge in Japan despite constitutional guarantees
• Gradual progress made through legal reforms and changing social attitudes

Women's rights in family law

• Equal rights in marriage and divorce enshrined in post-war constitution
• Elimination of legal gender discrimination in areas such as property rights and inheritance
• Persistent issues include:
  • Unequal division of household labor and childcare responsibilities
  • Gender wage gap affecting alimony and child support calculations
  • Surname change requirements upon marriage (typically woman adopting husband's name)
• Recent court cases challenging discriminatory practices (surname issue, remarriage waiting period)

LGBTQ+ family recognition

• Same-sex marriages not legally recognized at national level in Japan
• Some municipalities and prefectures offer partnership certificates with limited legal effects
• Adoption by same-sex couples not explicitly allowed, creating challenges for LGBTQ+ families
• Transgender individuals can legally change gender under certain conditions (Gender Identity Disorder Special Cases Act)
• Ongoing advocacy for greater legal recognition and protection of LGBTQ+ families

International family law

• Increasing importance due to globalization and rise in international marriages
• Challenges arise from differences in legal systems and cultural norms

Cross-border marriages and divorces

• Japan party to Hague Convention on Celebration and Recognition of the Validity of Marriages
• Recognition of foreign marriages generally based on compliance with local laws where marriage occurred
• International divorces recognized if valid under laws of country where divorce took place
• Jurisdiction issues may arise in international divorce cases
• Property division and spousal support complicated by differing legal standards across countries

International child custody disputes

• Japan acceded to Hague Convention on Civil Aspects of International Child Abduction in 2014
• Convention aims to protect children from wrongful removal or retention across international boundaries
• Implementation challenges due to differences in custody concepts between Japan and Western countries
• Japanese courts increasingly considering international standards in custody decisions
• Enforcement of foreign custody orders remains problematic in some cases

Family court system

• Family courts play central role in resolving family law disputes in Japan
• Emphasis on mediation and non-adversarial dispute resolution

Jurisdiction and procedures

• Family courts have jurisdiction over wide range of family matters:
  • Divorce and related issues (property division, child custody, visitation)
  • Adoption
  • Inheritance disputes
  • Domestic violence cases
  • Guardianship
• Procedures designed to be more informal and accessible than regular civil courts
• Judges often work alongside family court investigators (家庭裁判所調査官, katei saibansho chōsa-kan) who provide expert opinions

Mediation vs litigation

• Strong emphasis on mediation (調停, chōtei) in Japanese family court system
• Mediation mandatory first step in many family law cases
• Advantages of mediation:
  • Less confrontational than litigation
  • Allows for more flexible and tailored solutions
  • Generally faster and less expensive than court trials
• Litigation pursued if mediation fails or in cases requiring formal court judgment
• Even during litigation, judges encourage settlement and may suggest compromise solutions

Succession tax

• Japanese succession tax system aims to redistribute wealth and prevent excessive concentration of assets
• Complex rules and high rates make succession planning crucial for wealthy individuals and families

Inheritance tax rates

• Progressive tax rates ranging from 10% to 55% based on value of inherited assets
• Basic deduction: ¥30 million + (¥6 million × number of statutory heirs)
• Additional deduction for spouse (up to ¥160 million tax-free)
• Foreign assets included in taxable estate for Japanese residents
• Non-resident heirs taxed only on Japanese-situs assets

Gift tax considerations

• Lifetime gifts subject to gift tax to prevent circumvention of inheritance tax
• Progressive gift tax rates similar to inheritance tax rates
• Annual exemption of ¥1.1 million per donor-donee pair
• Special exemptions for gifts for marriage, education, and housing acquisition
• Calendar year aggregation rule combines multiple gifts from same donor

Family businesses

• Family businesses play significant role in Japanese economy
• Unique challenges in balancing family dynamics with business management and succession

Succession planning

• Traditional emphasis on primogeniture being replaced by merit-based succession
• Key considerations in succession planning:
  • Identifying and grooming suitable successor (family member or professional manager)
  • Transfer of ownership (shares) and management control
  • Minimizing tax burden through strategic gifting and restructuring
• Use of holding companies and trusts to facilitate smooth succession
• Increasing trend of bringing in outside expertise for succession planning

Legal structures for family enterprises

• Common legal structures for family businesses:
  • Kabushiki Kaisha (KK): Joint-stock corporation, most common for larger family businesses
  • Godo Kaisha (GK): Limited liability company, suitable for smaller family enterprises
  • Family office structures for managing family wealth and investments
• Shareholders' agreements used to maintain family control and resolve disputes
• Family constitutions gaining popularity to govern family-business relationships
• Consideration of minority shareholder rights and potential conflicts of interest

Elder law

• Growing importance due to Japan's rapidly aging population
• Focuses on legal issues affecting elderly individuals and their families

Legal guardianship

• Adult guardianship system (成年後見制度, seinen kōken seido) established in 2000
• Three levels of guardianship based on individual's mental capacity:
  1. Full guardianship (後見, kōken)
  2. Curatorship (保佐, hosa)
  3. Assistance (補助, hojo)
• Guardian appointed by family court to manage financial and personal affairs
• Increasing use of voluntary guardianship contracts allowing individuals to designate future guardians

Care for aging parents

• Traditional expectation of filial piety (親孝行, oyakōkō) influencing elder care practices
• Legal obligation for adult children to support parents in need (民法第877条, Minpō dai-877-jō)
• Long-term care insurance system (介護保険制度, kaigo hoken seido) introduced in 2000 to socialize elder care costs
• Recent legal reforms to protect elderly from abuse and neglect
• Power of attorney and advance healthcare directives gaining importance in elder care planning

Contemporary challenges

• Rapid social changes creating new challenges for Japanese family law
• Legal system struggling to keep pace with evolving family structures and societal expectations

Declining birth rates

• Lowest-low fertility rate (1.3 children per woman) putting pressure on social systems
• Legal measures to encourage childbirth and support parents:
  • Expanded parental leave rights
  • Increased child allowances
  • Improved childcare facilities and services
• Debates over allowing more flexible work arrangements and immigration to address labor shortages

Changing family structures

• Increase in non-traditional family forms challenging traditional legal framework:
  • Single-parent households
  • Cohabiting couples
  • Stepfamilies
  • Same-sex partnerships
• Legal system gradually adapting to new realities:
  • Reforms to recognize rights of children born out of wedlock
  • Discussions on expanding legal definition of family
  • Proposals for introducing civil partnership system for same-sex couples
• Tension between maintaining traditional family values and accommodating diverse family forms