日本法トピックス「重要判例」No. 2026-1 “Can a Same-Sex Partner Qualify as Being in a “De Facto Marital Relationship” under the Japanese Act on Support for Crime Victims?　” （橋本有生（法学学術院教授））

＊NOTE 

The following decision is among the most significant judgments of the Supreme Court of Japan on family issues delivered in 2024 that could not be included in the Waseda Bulletin of Comparative Law, No. 44, published by the Institute of Comparative Law, due to space limitations. 

 

Can a Same-Sex Partner Qualify as Being in a “De Facto Marital Relationship” under the Japanese Act on Support for Crime Victims?　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　 

 

X v. Aichi Prefectural Public Safety Commission 

The Third Petty Bench of the Supreme Court, March 26, 2024 

2022 (Guo Tsu) 318, 78 (1) Minshu 99 

Summary: 

The appellant X, lost his cohabiting same-sex partner, A in a homicide incident. X applied for crime victim benefits under Article 5, Paragraph (1), item (i) of the Act on Support for Crime Victims, etc. Such as Payment of Crime Victims Benefit (hereinafter referred to as “the Act”), claiming that he qualified as “a person who has not registered their marriage but has been in a de facto marital relationship with the crime victim”. 

However, the Aichi Prefectural Public Safety Commission denied the application on the grounds that X and A were of the same sex. X filed a lawsuit seeking revocation of that decision, but both the district and high courts dismissed his claim. On final appeal, the Supreme Court quashed the lower court’s ruling and remanded the case, holding that a person of the same sex as the crime victim may fall within the category of “a person who has not registered marriage but has been in a de facto marital relationship with the crime victim”, as referred to in the parenthetical phrase in Article 5, Paragraph (1), item (i) of the Act. 

Nonetheless, a dissenting opinion was also appended to the judgment, expressing the view that the legal protection of same-sex couples should be approached with greater caution within the framework of the current legal system. 

References: 

Act on Support for Crime Victims, etc. Such as the Payment of Crime Victims Benefits  

・Article 5 (Scope and Order of Bereaved Family Members)
A bereaved family member who is eligible to receive survivor benefits shall be a person who, at the time of the death of the crime victim, falls under any of the following items: 

(i) The spouse of the crime victim (including a person who has not registered a marriage with the crime victim but was in a de facto marital relationship with the crime victim). 

 

Facts: 

Appellant X’s same-sex partner A, with whom X was cohabiting, was killed by B. X applied for the crime victims benefits under Article 4, item (i) of the Act, claiming to qualify as “the spouse of a crime victim (including a person who has not registered a marriage with the crime victim but was in a de facto marital relationship with the crime victim)” as stipulated in Article 5, Paragraph 1, item (i) of the Act. However, the Aichi Prefectural Public Safety Commission rejected the application on the grounds that X and A were of the same sex. X filed a lawsuit seeking revocation of this ruling, but both the court of district and the high court dismissed the claim. Then X filed an appeal to the Supreme Court. 

Opinion: 

The judgment in the prior instance is quashed. 

The case is remanded to the Nagoya High Court. 

1. Majority Opinion 

The crime victim benefits payment system is intended to alleviate the mental and economic damage of the surviving family members at an early stage. In light of this purpose, the term “spouse of the crime victim” as used in Article 5, Paragraph 1, item (i) of the Act should be understood to include a person who has not registered a marriage but has been in a de facto marital relationship with the crime victim. Whether the person living together with the victim is of the opposite sex or the same sex does not create a significant difference in the level of emotional and financial distress suffered or in the necessity of benefits. 

Accordingly, the determination by the court of prior instance that is contrary to the above contains a violation of law or regulation that has clearly influenced the judgment. Since further examination in terms of whether the appellant, in his relationship with the victim, falls within the category of “a person who has not registered marriage but has been in a de facto marital relationship with the crime victim” is necessary, the case is remanded to the court of the prior instance. 

1. Dissenting Opinion by Supreme Court Justice IMAZAKI Yukihiko 

The final appeal should be dismissed. 

1. Potential disadvantages to other surviving families in the order of payments of victims benefits 

The crime victims benefits system is positioned as a highly policy-oriented framework that encompasses not only social welfare policy, but also elements of tort law supplementation and criminal policy, reflecting an intersection of multiple public policy objectives. As the system serves two core functions, providing livelihood security and compensating damages for the surviving family members, any consideration of whether same-sex partners should be included as eligible beneficiaries must take into account both of these aspects. 

From the standpoint of livelihood security, while the Act does not require surviving families to have maintained their livelihood with the crime victim’s income in order to be eligible to receive benefits (Article 5, Paragraph 1), it does prioritize those who were financially supported by the victim (item (ii)). If same-sex partners are recognized as eligible beneficiaries, there is a risk that children or parents who were actually financially dependent on the victim’s income would be subordinated to the same-sex partner and become ineligible to receive benefits. Such an outcome would undermine the fundamental purpose of the system, which is to provide livelihood security. 

1. Inconsistency with civil substantive law 

From the perspective of compensating damages, in order to adopt an interpretation that allows victims benefits to be granted to same-sex partners, it must be premised on the assumption that the same-sex partner of a crime victim has the right to claim compensation for damages against the perpetrator.  

While there may be room to recognize a same-sex partner’s right to claim compensation for mental damage, under Article 752 (which imposes a duty of mutual support between spouses) of the current Civil Code, compensation for property damage is not applied mutatis mutandis to same-sex couples. Thus, any compensable damage for same-sex partners would likely be more limited than that for opposite-sex partners. Nevertheless, under the majority opinion, same-sex partners are treated as equal to opposite-sex partners in awarding survivor benefits. Given that such benefits function as compensation, this discrepancy is difficult to justify under existing civil law. 

1. Impact on the interpretation of other laws and regulations  

The textual interpretation of the Act adopted by the majority opinion in this judgment, specifically regarding the phrase “a person who has been in a de facto marital relationship” may influence the interpretation of other statutes that use similar expressions. This raises concerns about potential inconsistencies with the original purpose of other legal frameworks.  

1. Unclear standards for recognizing a “de facto marital relationship” between same-sex couple   

Historically and legally, marriage has been understood as a relationship between a woman and a man, and the extension of equivalent legal protection to same-sex couples is a relatively recent development. Thus, when recognizing whether a same-sex couple is in a “de facto marital relationship” it is difficult to establish objective and consistent criteria, and the majority opinion does not clearly present such standards. 

While there is no objection to the majority opinion that the mental and economic impact on the surviving partner should not differ based on whether the couple is of the same or opposite sex, it remains too hasty, at this point in time, to extend such an interpretation to this case. Therefore, the claim should be dismissed. 

1. Concurring Opinion by Supreme Court Justice HAYASHI Michiharu  

Justice Hayashi agreed with the majority opinion and gave the following opinion. 

First, the interpretation of the phrase “a de facto marital relationship” should be based on the purpose of the crime victims benefits system. That is to say, to promptly alleviate the mental and economic damage suffered by the surviving families, etc. of persons who died unexpectedly as a result of criminal acts, thereby contributing to the realization of a society in which the rights and interests of persons who suffered crime damage, etc. are protected. 

Therefore, even if the victim and the applicant are of the same sex, if the relationship can be deemed to have been in a relationship with the crime victim that is equivalent to an opposite-sex common-law marriage in view of the person’s relationship with the crime victim in light of the cooperation with each other and having lived together, and the continuity of such a relationship, it is reasonable to consider that they would suffer similar mental and financial damage, and thus such individuals should be included as eligible parties of the victims benefits. 

Secondly, the mental and economic damage addressed by this benefits system does not necessarily have to align strictly with the damages for which a tort claim can be brought against the perpetrator. However, in this case, it may reasonably be interpreted that at the very least, a claim for solatium based on a tort can be filed against the perpetrator. 

Finally, although there are a considerable number of provisions of laws and regulations in which a phrase that is the same as or similar to the phrase “a person who has been in a de facto marital relationship”, the interpretation of that phrase should be made individually and specifically based on the intent and purpose of each legal system. In this case, the majority opinion does not make a determination on other provisions. 

Editorial Note: 

Under the current legal framework, de facto partners are, in principle, not afforded sufficient legal protection upon the death of their partner. For example, even where the relationship between the parties may be regarded in substance as equivalent to marriage, no right of inheritance is recognized. By contrast, in the field of social security benefits, de facto couples may, in certain circumstances, be treated in the same manner as legally married spouses. Benefits payable to bereaved family members of crime victims constitute a representative example. 

The issue in the present case was whether the benefits payable to bereaved family members of crime victims may also be granted to a same-sex partner. Article 5, paragraph (1), item (i) of the Act provides that a person who was in “a de facto marital relationship with the crime victim” is entitled to claim such benefits; the question was whether a same-sex partner falls within this category. This case is significant in that, for the first time, the Supreme Court expressly held that a same-sex partner does fall within that category and affirmed that the same legal protection afforded to opposite-sex couples in a de facto marital relationship also extends to same-sex couples (Ono, 2024). 

Moreover, this judgment is noteworthy in that it encourages a reconsideration of the quasi-marriage legal framework, previously premised exclusively on opposite-sex couples, to include same-sex couples as well. Firstly, unlike the second instance in this case and the Sapporo District Court decision (September 11, 2023, published on the Courts in Japan Website), the majority opinion in this judgment, while referring to the concept of “spouse” under the Civil Code, adopts the view that eligibility for victims benefits under the Act should not be denied solely on the grounds that the victim and the applicant were of the same sex. That is, the Supreme Court held that even in same-sex partnerships, the surviving partner could be presumed to have suffered comparable mental and economic damage as a legal spouse, and thus should be considered potentially eligible for benefits under the Act, in light of its purpose (Machado, 2024).  

Secondly, with regard to whether same-sex couples should be granted quasi-marital protection, the concurring opinion suggests a framework in which even a same-sex couple could also be regarded as being in “a relationship with the crime victim that is equivalent to an opposite-sex common-law marriage”. The concurring opinion also explicitly identifies elements such as the fact that the parties lived together in cooperation, and the continuity of that cohabitation. In other words, these elements correspond precisely to the kinds of considerations that the dissenting opinion argued should have been clearly specified when determining whether a same-sex couple falls under a circumstance that “equivalent to a de facto marital relationship.” Accordingly, this judgment can be understood as having provided a certain degree of guidance regarding the concrete factors to be considered when evaluating whether a quasi-marital relationship can be recognized for same-sex couples. 

Finally, with regard to this issue, which is closely connected to the question of the legal recognition of same-sex marriage, the majority opinion in the present case may be viewed as expressing a progressive stance that affirms the potential for same-sex marriage even under the current legal framework (Ono, 2024). 

Nonetheless, as Justice Imazaki pointed out in his dissenting opinion, although the concurring opinion seeks to limit the scope of the Court’s interpretation to the Act, doubts remain as to whether this limitation can effectively constrain the ripple effects on the interpretation of other statutes. Moreover, even if same-sex partners are deemed eligible for benefits under the present system, determining their priority relative to “surviving families who are financially dependent on the victim’s income” would inevitably require a considerable degree of policy-based judgment. Accordingly, going forward, issues such as the legal status of SOGI and whether same-sex marriage should be legalized will require careful consideration, including possible legislative reforms (Kobayashi, 2024). 

(See Ono, T. (2024). “Case Note on the Denial of Crime Victims Benefits to an Individual whose Same-sex Partner was Murdered,” Shin Hanrei Kaisetsu Watch: Constitution, (232), 2-3; Kobayashi, N. (2024). “The Supreme Court Decision Granting the Claim to Revoke the Denial of Crime Victims Benefits for Same-sex Partners,” WLJ Hanrei Column, (317), 5-6; Machado, D. (2024). “A Same-sex Partner of a Crime Victim may Qualify as a Person ‘in a de facto marital relationship’,” Shin Hanrei Kaisetsu Watch: Civil Law (Family Law), (158), 2.)