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Wednesday, January 08, 2014

De facto gay marriage in Japan

De facto gay marriage in Japan.

Three years ago my partner (a male) and I (a male) - both longtime residents of Japan - tied the civil union knot in New Zealand. Then at the end of last year, shortly after gay marriage became legal in New Zealand, we changed our civil union status to married.

Recently in Japan we bought an apartment. For income reasons, only my partner was able to secure a bank loan, yet we shared the cost of the the deposit, and will share the loan repayments from here on in, equally. Nevertheless, as the holder of the loan, he alone has the right to be the official owner of the property. (In the course of inquiry, we discovered that joint ownership of property is very unusual in Japan.)

While we are both healthy, no problems. However, if something were to happen to my partner, I would be left out in the cold, even if he were to leave me the property in his will. Gift tax and inheritance tax in Japan are enormous, usually necessitating the sale of the property by the beneficiary to pay them. However, if we were a married couple, that tax burden would lighten considerably.

We therefore set about to try and register ourselves as a same-sex married couple here in Japan. Family register matters are dealt with on the local level, in our case by the kuyakusho, or ward office (of one of the 23 wards of Tokyo).

Our aim, in officialese, was to “merge households” (setai-gappei) as, to date, in spite of sharing the same address, we form two separate “single person households” (tanshin-setai) in the ward office records. This could be done; however, we were told that we were unable to register as a married couple.

We politely challenged the decision not to register us as married, and asked what law prohibited it. The clerk went away for a few minutes and came back, not with a reference to a section, clause and paragraph of some particular marriage-related law, but, lo and behold, a copy of Section 24 of the Constitution of Japan!

Paragraph 1 of the two paragraphs of Section 24 begins with “Marriage shall be based only on the consent of both sexes” (Kon-in wa ryosei no goi nomi ni mototsuite seiritsu shi) - those last two words clearly putting paid to recognition of same-sex marriage.

However, this section of the Constitution was not written with the intention of stymying any future attempts between same-sex couples to wed. Rather, it heralded a break from the bad old days of Japanese history when consent to marriage was the preserve of the head of the household of, respectively, the bride and the groom. A woman stuck in an abusive marriage had never even consented to the marriage and therefore had no consent to withdraw. And even the paternal consent that had gotten her into the marriage was now transferred to the head of the new household, her husband. In other words, a married Japanese woman was a prisoner to her father then husband, so assigning "consent to both sexes" was, in the broadest terms, about the freedom of the individual to determine that individual's own fate, and about equality between the sexes.

Fast-forward sixty-nine years, and this groundbreaking assertion of marital freedom has ironically, thanks to that word “sexes” chosen in the mid-1940s without an inkling of its 21st century ramifications, become a denial of freedom and equal treatment for gay people in Japan. (If only they had gone for “parties”!)

But all was not lost. The (apologetic! - Japan is so nice like that) clerk said that between the statuses of tanshin (single-person) and kekkonsha (married person) is that of enkosha (de facto married person) and that we could opt for the latter.

We did that. It has probably not yet solved our problem of what would happen if I were to be left alone with the property, but as de facto recognition of a gay couple by a Japanese local authority, it made us happy and serves as a further step toward our goal of full official recognition of my partner and I as comprising a family.

P.S. I was talking with friends about the status of gay marriage under the Constitution, and was informed that in spite of the "both sexes" (ryousei) that forms the letter of the law, the spirit of the law is also considered significant in its interpretation, and that several legal experts in Japan therefore believe that gay marriage is a possibility as the Constitution stands. It was pointed out to me that if we took the ultimate step of the elder of us adopting the other (a common solution applied by gay couples to the absence of gay marriage in Japan), we would be denying ourselves the opportunity of marrying if gay marriage were to become a reality here. That's food for thought, but, given the immediate motivation behind our desire to become "family," we're more inclined to go for the admittedly less-than-ideal current alternative than stay in limbo waiting (or—if we had the time, idealism and energy—campaigning) for a change that has yet to garner the kind of broad, swelling support being seen in other countries.

Read more about gay Japan.

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