Gay marriage now legal in Japan-to a foreigner, huh?

After a discussion a few weeks ago about the situation of gay politics and life in Japan and Taiwan, there seems to be a very significant update. The Japanese Ministry of Justice has apparently announced that gay marriages will now be recognized as legal in Japan, but only in the rare circumstance that a Japanese national has gotten married to a foreign national of a country which allows gay marriage. If such a couple gets married in a foreign jurisdiction which allows gay marriage, that marriage will also be recognized in Japan, but this is apparently NOT an option for a couple consisting of two Japanese nationals. I am slightly baffled at why they would want to go out of their way to create such a special case exemption, which is even more confusing than the rules for recognition of marriage between various US states.

The ministry has so far rejected the issuance of such certificates to Japanese citizens seeking to marry same-sex partners of foreign nationality as such marriages are not approved under domestic law.

For Japanese nationals, whether they are gay or not, to marry foreigners in foreign countries, they must obtain certificates from the ministry by submitting documents including their name, birth data, sex and nationality, and similar information about their marriage partner.

Under the latest decision, the ministry will issue a new type of certificate which will only clarify that the person has reached the legal age for marriage and that he or she is single.

“We were not able to get (the ministry) to forgo the clarification of sexuality. But I want to hail the Justice Ministry’s decision as a step forward (for gays),” said Taiga Ishikawa, who represents gay support group Peer Friends.

Ishikawa said that Japanese gays were not able to get married to a gay foreigner even if their marriage partner’s country approved of same- sex marriage, because the Justice Ministry would not issue the certificate.

“And without marriage they were unable to obtain visas for their partners to live together,” Ishikawa said.


Yes, I suppose it is a major milestone and perhaps a step towards greater legal equality in Japan for all homosexuals, but what really is the point of this new regulation as-is? Who thought it made any kind of logical sense to create a right only for a Japanese to marry a foreigner of the same sex, but not for two Japanese of the same sex to get married? Actually, the last line quoted above gives the answer: by allowing Japanese gays or lesbians to marry their partner, that partner will now qualify for a spouse visa-which in many cases is the difference between allowing a relationship to continue or not. This is of course not an issue for two gay Japanese, who while strangely will now actually have less legal rights and privileges as a couple than one consisted of one Japanese and one foreigner, but at least will not have to worry about being separated due to the vagaries of immigration law.

(Via Andrew Sullivan’s blog)

29 thoughts on “Gay marriage now legal in Japan-to a foreigner, huh?

  1. Actually, gays in Japan have “married” for generations through adoption. In Japan, almost anyone can adopt anyone and it creates a “shinzoku” family relationship, and it can be ended with mere agreement and notification in the same way as a consensual divorce.

  2. My guess was that it was to avoid assymetrical marriage arrangements. That is, until now:

    2 Japanese – can’t get married. Neither is married to the other, anywhere, and hence there is no conflict.

    1 Japanese and 1 foreigner from a country which doesn’t allow gay marriage: Neither is married to the other, anywhere, and hence there is no conflict.

    1 Japanese and 1 foreigner from a country which DOES allow gay marriage: In the foreigner’s country, they are married. They get on a plane, come to Japan, and now somehow are no longer married…until they get back on a plane.

    So the idea was, I think, the visa issue, and the rectification of arrangements where two countries disagreed on whether a couple was married or not.

  3. Yes, let’s decide social policy based solely on the Justice Ministry’s administrative convenience! I am not against this move, but the sheer reactiveness of Japanese policymaking is almost laughable sometimes. Reminds me of how as justice minister Hatoyama suggested making death penalty procedures automatic because he found it distasteful to sign the death warrants himself…

    http://www.news.janjan.jp/government/0710/0710294793/1.php

    I wonder if this will provoke the same chauvenistic public response as Kono Taro’s suggestion of allowing dual citizenship, a reform that would presumably help many more people than this.

    By the way, the US is particularly draconian and cruel in this regard, thanks to the Defense of Marriage Act, signed into law by President Clinton:
    http://www.salon.com/opinion/greenwald/2008/11/06/doma/index.html

  4. I actually start to think differently on Kono Taro.He is not just a chauvenistic dude like his old man.

    The gay marriage issue does reflect the Japanese tendency that it’s the bureaucracy that matters and not the law makers.

  5. I don’t think this change means that Japan will recognize a gay marriage. As far as I understand, and I’m very willing to be corrected, countries which permits gay marriage require a potential Japanese spouse to have a certificate which the Justice Ministry previously would not issue. They have now agreed to issue this certificate which allows a Japanese national to marry a same-sex foreign partner overseas where it is legal. I have yet to see anything which says that the foreign spouse would then be entitled to apply for a Japanese spouse visa based on that marriage. It seems only to allow the Japanese partner to apply for a spouse visa in the partner’s country.

    The resulting situation seems a little like a foreign driving licence: not all foreign driving licences are created equal and not all foreign marriage licences will get you the same entitlements in Japan.

    What I’m not clear on is whether, say, a Japanese man marrying a same-sex foreign spouse is forbidden from then marrying a Japanese woman back in Japan. Or even a foreign woman. In theory, it would constitute bigamy but only if the first marriage was recognized. It’s possible that the Justice Ministry issuing the certificate to allow the gay marriage would decide not to allow the second marriage without officially recognizing the first. This would leave the Japanese national in a kind of “married limbo”. Obviously, that particular case is unlikely to happen but the legal status in Japan of an overseas gay marriage could easily become an issue in an inheritance dispute in a Japanese court.

  6. Oh, ok then this quote:

    ***
    “And without marriage they were unable to obtain visas for their partners to live together,” Ishikawa said.

    ***

    should end with “in the foreign spouse’s home country ONLY and this has nothing to do with Japanese policy toward allowing spouse visas to bring foreign gay marriage spouses to Japan.” Would that have been so hard?

  7. So this rule in fact only makes it easier for gay Japanese to marry overseas, and doesn’t in any way affect their, or their partner’s legal status in Japan? I think we’ll have to go to the Japanese text to be 100% clear.

  8. This news is causing a lot of confusion here in Japan—I’m not sure anyone really understands what the significance is. My partner is Japanese, and has read the Japanese reports on the change—and he says he can’t figure it out, either.

    The key questions we need answered are:

    Does this mean the Japanese government will recognize these marriages legally if the couple returns to live in Japan?

    Will foreign nationals married to same-sex Japanese partners be able to qualify for spouse visas?

    And Mulboyne brings up a very significant legal question about whether a Japanese national married to a same-sex partner abroad is then ineligible to marry an opposite-sex Japanese partner.

    Having lived here for many years, I’m not optimistic that same-sex marriage in any form will be given legal recognition—but I hope I’m wrong.

    I get the impression that the original Japanese news article that got widest distribution (and translation) was written by a reporter who did not grasp the significance of the decision, or the various possible interpretations.

  9. Some alternative legal insight here:

    Japan has always practiced the very peculiar civil law idea that marriage laws follow the citizen, and are not restricted by territory. In other words, when foreigners marry in Japan, they may do so at their respective embassies in accordance with their own laws. When Japanese nationals marry (each other), they must do so exclusively at the local municipal office. So by allowing a Japanese person to marry a foreign national of the same sex if the foreign national’s law permits gay marriage is keeping with Japan’s longstanding laws regarding the marriage of foreign nationals, either to each other or to Japanese nationals.

    Interestingly enough, the wikipedia page on the civil law concept of “International private law” or 国際私法, seen here http://ja.wikipedia.org/wiki/%E5%9B%BD%E9%9A%9B%E7%A7%81%E6%B3%95 has a correspondent English translation page to “Conflict of Laws.” The treatment of conflicting laws is an interesting concept that is fundamentally handled differently between civil and common law countries.

  10. Curzon, are you saying that Japan’s practice in this area is different from other civil law jurisdictions? Do you have any better idea of what this regulatory change will actually mean for Japanese citizens and residents?

    It now seems that my initial reading, that Japan would recognize certain gay marriages performed overseas, was actually incorrect and that the real interpretation is merely that Japan will cooperate with the procedures needed for their own citizens to engage in a same-sex marriage overseas, but will not grant any rights or recognition of such marriages WITHIN Japan. Someone really cynical might think that Japan is making it easier their own gay citizens to marry abroad so that they can get foreign residence and won’t come back.

  11. Regardless of how weak this may be as an initiative, I feel that the fact that same-sex marriage is even on the radar screen of the Justice Minister is progress of sorts.

  12. The thing is,like the dude in the JanJan article,the gay in Japan should start asking “demands” instead of “holding expectation” to the authority.
    Koreans demand their political wishes despite they are not the citizen of the country,and there are response in both the diet and bureaucracy.On the contrary,the gays have Japanese citizenship which would,in theory make them easier to fullfill their demands.

  13. I wonder whether the Japanese government had much choice in the matter. In Britain, a Japanese national who wants to get UK driving licence needs to obtain a certified translation from the local Japanese embassy. Provided the licence is valid, I don’t think the embassy has any discretion over whether to do this. The certificate to get married to a foreign national overseas may well be the right of any unmarried Japanese citizen. It’s not clear that the embassy has any discretion to approve the partner. This recent announcement might well just have been caused by one embassy asking for a clarification when they received a single application.

  14. Hello,

    I was wondering if anyone knew for sure whether spousal benefits are going to given to a male non-Japanese married to a Japanese?

    We are planning to move to Japan and having spousal benefits for me would make the move much easier.

    Does anyone have a link to legal services or lawyers that might know the answer?

    Thanks for your help.

  15. A male non-Japanese married to a Japanese woman can get a spouse visa, with national health coverage, work permission, etc. But a gay man is going to have to get his own work visa.

  16. Curzon’s analysis is a little off. The embassy is basically a legal extension of the country which it represents, so it’s a bit off to say that there is no territorial restriction—the marriage is technically being performed in the territory of the country governing the marriage. If foreigners want to get married outside the embassy (which is the ordinary procedure for foreigners resident in Japan) they have to go to city hall and do a koseki filing as if they were Japanese.

    The situation is exactly the same for a Japanese couple in the US. They can either go to the Japanese embassy and file their koseki papers there, or they can have a ceremony under the law of whatever state they’re in (and notify the Japanese authorities later if they want it in their Japanese records).

    While I’m at it, here are the official rules governing international marriages under Japanese law. The applicable statute is the 法の適用に関する通則法 (which I like to cryptically translate as the “Law of General Application Regarding the Application of Laws.”)

    (婚姻の成立及び方式)
    第24条  婚姻の成立は、各当事者につき、その本国法による。
    2  婚姻の方式は、婚姻挙行地の法による。
    3  前項の規定にかかわらず、当事者の一方の本国法に適合する方式は、有効とする。ただし、日本において婚姻が挙行された場合において、当事者の一方が日本人であるときは、この限りでない。

  17. Guys there is a great LGBT civil rights organization called the Empowering Spirits Foundation. They are very creative in how they approach this hot topic issue of gay marriage, in that they engage in service oriented activities in communities typically opposed to equal rights to foster thought and change for LGBT equality.

    A friend of mine told me about it and I thought it was a great, positive approach to the issue. We had so much fun at the last event and it was great to give back to the community. Plus it was great to converse with others on the other side of the table in a way that wasn’t confrontational.

    Anyway, this can be such a heated issue and I thought this was a unique approach.

    http://www.facebook.com/pages/Empowering-Spirits-Foundation/49288966338

  18. I am confused about the final post. Does the foreigner have to be a “national” of the country allowing gay marriage e.g. Cnada- or simply get married in that country i.e an Australian marrying a Japanese IN Canada-does that count???> Thanks for any help. Also, what is the law under marriage -does it include automatice inheritance rights in Japan.
    Thanks

  19. Unfortunately, no. Gay marriage is legally meaningless in Japan and won’t help you get a visa, protect property rights, etc.

  20. A slightly different question: My Partner and I are both foreigners (same country passport) and I am being transrferred to Japan for work. (we are both moving together). We are not married (our home country (NSW Australia) doesn’t permit it), but we are Registered as a couple in our state so we have an official document.

    My questions are, will my Partner be able to enter Japan on the back of my visa? Can I put him as a ‘spouse’ on my immigration application form? How do we achieve what we want to – even if it means he can’t work here?

    I was also wondering when Curzon says “Japan has always practiced the very peculiar civil law idea that marriage laws follow the citizen, and are not restricted by territory” and thinking if that we might get lucky?

  21. Jason, I’m afraid that Japan has no recognition whatsoever for same sex unions, and your partner will have to find his own, completely unrelated visa. Your foreign documentation of a civil union will mean nothing here, so the best option will probably be for him to find a job that will get him sponsored for his own work visa, or, if he is young enough, come on a working holiday visa.

  22. Would just like to inform the first person who wrote on this that divorce is not as easy as having a mutual agreement to no longer be together.

  23. It would be fantastic if there was an update of this article or if anyone had any other information on this. It is really, really hard to find information on this topic. The fact that Tokyo Disneyland is allowing gay couples to “wed” is great—but it is not legal. But the more Japanese people see gay people getting married it will be impossible to ignore, and since the wedding industry in this country is so huge, it would just be more icing on the cake to let gays marry and everyone benefits.

  24. An update would be fantastic if there was any news, but the legal situation in Japan hasn’t seen any chance, and really I don’t think the social situation has either. The Tokyo Disney thing is cute, but as far as I know, allowing the ceremony is just following the policy set by Disney home office, and not really any kind of reflection on Japan, other than to remind that there aren’t any sort of religious fundamentalists who would bother to try and stop such an event.

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