【Case Study】Relationship between same-sex marriage and status of residence
Ms. A, a British female who lives in Japan with a permanent resident visa, has a partner relationship with Ms. B, who lives in England. Ms. A and Ms. B got married after the legalization of same-sex marriage in England, and are legally married under British law. Ms. A wishes to live with Ms. B in Japan, but what types of status of residence can Ms. B obtain?
In recent years, protection of human rights of so-called sexual minorities started to be acknowledged in the world, and the word LGBT has infiltrated to society. Some countries including european countries and the United States allow same-sex marriage under law. On the other hand, same-sex marriage deeply relates to religion and national character, and Japan has not legalized same-sex marriage yet.
In this article, we focus on the relationship between same-sex marriage and statuses of residence.
1. Same-sex marriage is not included?! The meaning of spouse under the Immigration Act
Japanese Civil Law defines legal marriage as formation of a community between a male and a female, and does not recognize same-sex marriage as legal marriage. Same-sex marriage therefore is not legally effective in Japan.
Regarding this point, the Immigration Act provides several statuses of residence based on marriage; “Spouse or Child of Japanese National,” “Spouse or Child of Permanent Resident,” “Dependent,” and “Long-Term Resident” are the statuses of residence for spouses who are foreigners. According to the Kanzai No.5357 dated October 18, 2013, a “spouse” under the Immigration Act is interpreted in accordance with Japanese Civil Law, and therefore partners in same-sex marriage are not granted any status of residence as a spouse.
2. Status of residence for a spouse of the same sex marriage
Having said that, the official notice above states that in case of same-sex marriage between foreigners, , due to humanity reasons, the change of the status of a spouse to “Designated Activities” not on the public notice is permitted as long as the same-sex marriage is legally registered in the countries of both parties, and the other person in the couple has a status of residence.
The immigration policy in Japan permits stay of foreigners who fall under any of the statuses of residence which are specified under the law (status of residence system). It is however impossible to classify all types of foreigners who should be permitted to live in Japan.
Therefore, the Immigration Act provides a status of residence called “designated activities,” to accept foreigners who should be permitted to stay in Japan in light of their individual situations. There are 2 types of status of designated activities; one is for designated activities on the public notice, which allows activities listed on the public notice and specified for each foreigner by the Minister of Justice, and the other one is for designated activities not listed in the public notice.
The notice above was revolutionary as it permits spouses of same-sex marriage to stay in Japan with the status of residence of designated activities not on the public notice.
3. Requirements for designated activities visas for a spouse of the same sex marriage
The status of residence of designated activities is not provided in laws or public notices, so requirements to obtain such status of residence are not clear. Nevertheless, there are general requirements for any status of residence, which are 1) necessity to stay in Japan, and 2) acceptability for the stay.
Based on such general rule, we can interpret that the above notice requires the following requirements.
a) The marriage between foreigners are legally registered in the countries of both parties (necessity to stay in Japan); and
b) The couple’s financial status is stable enough to continue marriage life in Japan (acceptability for the stay).
a) requires that the marriage between foreigners are legally registered in the countries of both parties. If the couple live together but not married (de facto marriage), their relationship is not legal marriage, so they will not be granted a status of residence of designated activities.
In addition, the same-sex marriage has to legally approved and also needs to be based on substantial relationship as the status of residence of designated activities requires the couple to live together. Just like status of residence of “Spouse or Child of Japanese National,” it is required to demonstrate specifically how they became a couple, if they meet each other’s relatives, how they got married, etc.
Above b) also requires enough income and assets to stay in Japan as a couple, just like status of residence of “Spouse or Child of Japanese National.” Basically, showing the income of the party living in Japan suffices to serve the purpose, but if such income is too low to maintain their lives together, the applicant may need to demonstrate his/her assets abroad, etc.
4. Summary of statuses of residence for a spouse of same-sex marriage
The Kanzai No.5357 dated October 18, 2013 was a big step for sexual minority people as it allowed status of residence for partners of same-sex marriage. However, it only mentions marriage between foreigners, and it’s not applied to marriage between a Japanese and a foreigner. Since Japanese Civil Law only admits marriage between male and female, there should be various interpretations concerning same-sex marriage between a Japanese and a foreigner.
Having said that, de facto marriage has been protected by the precedents, and the precedents do not distinguish genders of the couple. Such de facto marriage and same-sex marriage share the common fact that couples live together. Therefore same-sex marriage between a Japanese and a foreigner should be protected from the aspect of status of residence, and it does not contradict Japanese law, which respects marriage between male and female.
Respect for fundamental human rights is one of the purposes of the Immigration Act. The issues concerning sexual minorities should be solved as soon as possible. In Japan, discussion as to same-sex marriage has not been so developed yet comparing to European countries and the United States, but in near future, it should be discussed nation-wide.