Common-law marriage in Japan

Is there common-law marriage in Japan?

Definition of common-law marriage in Japan

A common-law marriage, unlike a legal marriage, is a marriage in which the couple is not legally married and is not included in the same family register, but has the same relationship as a married couple. A common-law marriage is recognized if there are certain conditions equivalent to a marriage, such as “both parties have the intention to get married and have been living together for a long period of time.”

Because same-sex marriage is not legally recognized in Japan, same-sex couples may choose to enter into a common-law marriage.

The reason why some people in Japan chose common-law marriage

In a survey of common-law married couples, the most common reason given by women as to why they chose to live as a couple without registering their marriage was “to have a separate family name,” followed by “opposition to the government’s family registration system” (multiple responses allowed).

•  To keep separate surnames (89.3% of women / 64.0% of men)
•  Oppose the family registration system (86.8% of women / 70.7% of men)

The out-of-wedlock birth rate in Japan is about 2%. It is sometimes pointed out that common-law marriages are on the increase. According to the 2010 census, approximately 600,000 people aged 20 and over were “living together with a non-relative of the opposite sex.” However, in reality, the Japanese government does not know the actual number of common-law marriages.

Under Japanese law, if a married couple wishes to have different surnames after marriage, they must choose common-law marriage. This indicates that common-law marriage and married couples’ ability to have separate surnames are strongly linked.

The Basic Resident Registration Law stipulates that a person who is not the head of the household should be listed as “the person living with the head of the household,” or as “husband (unregistered)” or “wife (unregistered),” but this is currently left up to each local government.

The child would be registered as an “illegitimate child” under the mother’s surname, and is listed as a “child” in the family register, but may be placed in the father’s family register and given the father’s surname at the discretion of the family court.

In Japan, where same-sex marriage is not legally recognized as of 2022, same-sex couples sometimes have no choice but to enter into common-law marriages. On March 19, 2021 the Supreme Court of Japan confirmed a judicial decision that a common-law relationship can be established even between same-sex couples.

Some municipalities, such as Yokohama, Chiba, Saitama and many wards in Tokyo, have a “partnership oath system” in which two people who regard each other as life partners, including LGBT people and people in common-law marriages, of the same or opposite sex, take an oath and the city certifies their oath.

Municipal Partnership Ordinances

An increasing number of municipalities, such as the Tokyo Metropolitan Government and Ibaraki Prefecture, have adopted a system of public recognition of partnership not only for same-sex couples, but also for common-law marriage couples. An increasing number of private companies are also considering this as a form of marriage.

Social Insurance

Pensions (National Pension Plan and Employees’ Pension Plan) and public medical insurance treat common-law marriages in the same way as legal marriages in terms of support and receipt of survivor’s pensions, if the requirements are met.

If there exists a relationship between the parties that is socially accepted as a common-law marriage, the parties are considered to be in a de facto marriage relationship.

Legal Issues

From the perspective of family law, only one of the parties can have parental rights when there are children. (They cannot have joint custody.)

Even if the child is acknowledged, the child’s status in the family register is listed as a child born out of wedlock (illegitimate child).

The other party does not have the right to inherit when his/her partner dies (They need to leave a will in order to bequeath the property).

Problems in daily life

Those who are under common-law marriage are unable to sign for surgery of their partners as a family member due to difficulty in proving familial relationship with “spouse,” or they may be refused to explain medical condition of hospitalized family member.

Claims for insurance benefits in case of accidents, etc. are limited to legal relatives, which is difficult for common-law marriages, and it is difficult to be a beneficiary of life insurance or a joint guarantor of a mortgage loan.

In addition, when one of the spouses is posted overseas, a spousal visa or permanent residence visa is often not granted for common-law marriages. They may be refused to move into welfare facilities as a married couple for nursing care, etc.

These issues are handled differently even if there is a partner certificate from the local government.