In Japan, same-sex marriages are not recognized as valid marriages by law, and there is no such thing as a partnership system. However, in response to the recognition of same-sex marriages in other countries, the status of residence (visa) is granted as ” Designated Activities(特定活動)”. In particular, in the case of two foreign nationals, if they have a valid marriage in their home country and are expected to lead a stable life in Japan, the status of residence as “Designated Activities” is granted.
This part explains the status of residence (visa) for same-sex marriage partners in Japan.
The Marriage Situation in Japan and the Global Response
As of October 2023, there are 35 countries in the world that recognize same-sex marriage or have systems that guarantee the rights of same-sex couples, such as registered partnerships (登録パートナーシップ)(which will be 36 countries in January 2024).
While the number of countries in the world that recognize same-sex marriages is gradually increasing, Japan does not recognize same-sex marriages under the Civil Code or other laws, although there is a movement to allow partnerships to be registered at the municipal level.
Under the Civil Code, a person is considered a “spouse” when the relationship of marriage is established.
In Immigration Control Act, married couples (married couples who are eligible for a family visa) refer to “spouses” and do not include same-sex partners or common-law relatives.
There are several types of status of residence (visa) that can only be obtained by a “spouse”. Examples include “Spouse or Child of Japanese National(日本人の配偶者等)”, “Spouse or Child of Permanent Resident(永住者の配偶者等)”, and “Dependent(家族滞在)”. Even if a same-sex marriage has been consummated abroad, the couple is not a “spouse” under the Japanese Civil Code, and therefore cannot apply for these statuses of residence. However, in the case of same-sex partners, “Designated Activities” may allow them to stay in Japan and live with their partners in the same way as a “Dependent”.
Family visas may be granted for same-sex marriages in some cases.
Same-sex partners may apply for ” Designated Activities”, but the circumstances vary depending on whether the marriage is between two foreigners or between a foreigner and a Japanese partner.
Marriages between foreigners
As explained before, the word “spouse” as defined in the Japanese Civil Code and Immigration Control Service Agency does not include same-sex partners. For this reason, they could not apply because they do not fall under the category of “spouse”, a person who can apply under the status of residence of “Dependent” or “Spouse or Child of Permanent Resident”, etc.
However, in response to the background of foreign countries recognizing same-sex marriages, Ministry of Justice issued a notice in October 2013, transmitting its view that entry and stay in the country is allowed.
Immigration and Residency Screening for Spouses of Same-Sex Married Couples (Notice)
The “spouse” in the status of residence “Dependent”, “Spouse or Child of Permanent Resident”, etc. is the spouse of a marriage that is treated as a valid marriage under the marriage laws of Japan, and does not include a spouse from a same-sex marriage even if the marriage was validly consummated in a foreign country. However, in light of the recent legal developments regarding same-sex marriages in other countries, such as the enactment of the “Same-Sex Marriage Law(同性婚法)” in France in May of this year, and from a humanitarian perspective, in order to ensure that those who are in a same-sex marriage in their home country can live as stably in Japan as in their home country, we have decided that, in principle, spouses of those in same-sex marriages will be permitted to enter and stay in Japan under the status of residence “Designated Activities”.
October 18, 2013 Ministry of Justice Kanzai No. 5357 Notification
As per the above notice, Immigration Service Agency allows foreign nationals to stay in Japan under ” Designated Activities” (other than notifications告示外) if their marriage has been consummated.
Marriage between a Japanese and a foreigner
Unlike same-sex marriages between foreigners, same-sex marriages between Japanese and foreigners have not been allowed to change their status to a “Designated Activities” visa until recently. This is because same-sex marriages are not recognized under the Japanese Civil Code and therefore cannot be consummated. However, an American-Japanese same-sex couple who got married in the U.S. filed a lawsuit against the government, claiming that it is unfair that they are not granted residency status in Japan. On September 30, 2022, the Tokyo District Court ruled that the Japanese government’s refusal to recognize ” Designated Activities” was “illegal” because “the recognition of ‘same-sex marriage’ for same-sex couples between foreigners, but not for couples between foreigners and Japanese, is against the spirit of the Constitution, which stipulates equality under the law”.
There is an increasing possibility that “Designated Activities” will be approved even in the case of same-sex couples between a Japanese and a foreigner. (In fact, there are some cases where it has been approved, but some Immigration Service Agencies will not accept the application without firm prior confirmation and negotiation.)
In any case, it is bound to be a difficult application, but if you prepare well, there is a good chance that ” Designated Activities” will be approved for both foreign nationals and couples between a foreigner and a Japanese national.
Conditions for family visa approval
Just because a same-sex marriage has been consummated does not mean that a visa will naturally be granted.
Even in the case of opposite-sex marriages, the validity of the marriage and whether or not there are any problems in living in Japan are examined from various angles. In particular, the examination for the status of residence (visa) that can be granted for the status of spouse (wife/husband) will carefully check for “sham marriages”.
This is the same for same-sex marriages, as they are also examined closely. The applicant must be able to explain that their marriage was formed out of true love and that they have a real relationship as partners.
・Married life should be one of mutual help and support, living together.
The status of residence of a partner in a same-sex marriage is based on the premise that the partner will be supported by and live together with a “Japanese national” or “permanent resident” who is already living in Japan, or a person who can make a living in Japan independently, such as a worker visa holder (referred to here as the “main person”).
In the case of same-sex marriage, no matter what the status of residence (visa) of the main person is, the status of residence of the same-sex partner will be ” Designated Activities (other than notifications)” at present. In the case of “Designated Activities”, you are not allowed to work, so if you want to work, you must obtain “Permission to engage in activities under the status of residence other than permitted under the residence(資格外活動許可)”.
Incidentally, this “Designated Activities ( other than notifications)” status cannot be applied for from overseas, so once you come to Japan, you will have to go through the procedures to change your status of residence afterwards.
Conclusion
The above is an explanation of the status of residence (visa) for same-sex marriage partners.
The Immigration Service Agency recognizes the status of residence of same-sex partners, and if permitted, they can stay in Japan and live with their partner under ” Designated Activities (other than notifications)” status.
However, as is the case with heterosexual marriages, it is the applicant’s responsibility to explain that their marriage is not a sham and that they can lead a stable life, and to prove at the time of application that there are no problems with their marriage. It is not a given that you will receive a residence status (visa) if your marriage is consummated, so you need to be well prepared.
