Duty of Support Among Relatives in Japan: Who is Obligated to Provide Financial Assistance and Under What Circumstances?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

The legal duty of relatives to provide financial support to one another, known as fuyō (扶養) in Japanese, forms a significant pillar of Japan's family law system. This framework of private, familial responsibility operates in tandem with public social welfare programs, establishing a hierarchical approach to assisting those unable to support themselves. The Japanese Civil Code outlines who bears this obligation, the conditions under which it arises, and the general principles for determining its extent. Understanding this system is crucial for comprehending the societal and legal expectations placed on family members in Japan.

Article 877 of the Japanese Civil Code is the primary provision defining the scope of individuals who may be called upon to provide support. It distinguishes between those with a direct, inherent obligation and those upon whom such a duty may be imposed by a court under specific conditions.

A. Primary Support Obligations (Article 877, Paragraph 1)

The law establishes a direct and primary duty of support among certain close relatives:

  1. Lineal Blood Relatives (直系血族 - chokkei ketsuzoku): This category includes individuals in a direct line of descent or ascent. Therefore, parents have a duty to support their children, and adult children have a duty to support their parents if they are in need. Similarly, grandparents and grandchildren fall within this category.
  2. Siblings (兄弟姉妹 - kyōdai shimai): Brothers and sisters also share a mutual, direct legal obligation to support one another.

This primary duty arises by virtue of the specified blood relationship itself, provided the potential recipient is in a state of need and the potential provider has the capacity to offer support.

B. Secondary or Court-Ordered Support Obligations (Article 877, Paragraph 2)

Beyond these primary obligors, the Civil Code allows for the extension of the support duty to a wider circle of relatives under particular circumstances. The Family Court can impose a duty of support on relatives within the third degree of kinship (三親等内の親族 - sanshintō-nai no shinzoku) if "special circumstances" (特別の事情 - tokubetsu no jijō) are found to exist.

  • Scope: Relatives within the third degree of kinship include individuals such as uncles, aunts, nieces, nephews, and great-grandparents/great-grandchildren. For example, grandparents might be ordered to support grandchildren if the parents (who are closer lineal relatives) are deceased or lack the capacity to provide support, and special circumstances warrant such an order.
  • "Special Circumstances": The Civil Code does not explicitly define "special circumstances," leaving this to the discretionary judgment of the Family Court. Generally, courts interpret this requirement strictly. Factors that might constitute special circumstances could include a history of significant financial or personal support previously provided by the person now in need to the relative from whom support is sought, a period of cohabitation and mutual reliance that created a strong de facto dependency, or the complete absence of any closer relatives capable of providing support. Without such compelling reasons, the duty is typically not extended to these more distant relatives.

II. The Nature and Extent of Support: A Tailored Approach

The Japanese system does not prescribe fixed amounts or methods of support but rather relies on a flexible approach, considering the specific situation of each case.

A. The Guiding Principles: Need and Capacity (Article 879)

When determining the extent and method of support, Article 879 of the Civil Code mandates that all relevant circumstances be considered. The key factors are:

  • The needs of the person requiring support (obligee): This includes their essential living expenses, medical needs, age, health, and any other factors contributing to their inability to be self-sufficient.
  • The financial capacity of the person(s) obligated to provide support (obligor): This involves an assessment of the obligor's income, assets, existing financial obligations, and their own essential living expenses.
  • "All other circumstances": This broad category allows the court (or the parties in an agreement) to consider factors such as the history of the relationship between the parties, their past conduct towards each other, their social standing, and any other equitable considerations.

B. The Traditional Distinction: Seikatsu Hoji Gimu vs. Seikatsu Fujo Gimu

A significant, though sometimes debated in its modern application, conceptual distinction in Japanese support law, largely attributed to the influential scholar Professor Zennosuke Nakagawa, differentiates between two qualitative levels of support duty:

  1. Seikatsu Hoji Gimu (生活保持義務 - Duty to Maintain a Similar Standard of Living): This is considered a higher and more comprehensive duty of support. It implies that the obligor should ensure that the obligee can maintain a standard of living comparable to the obligor's own. It suggests a sharing of one's own living standard, rather than merely providing for the obligee's bare necessities from surplus income. This stronger duty is generally held to apply:
    • Between spouses (as an inherent part of their mutual duties of cooperation and support, often reflected in claims for marital expenses under Article 760).
    • From parents towards their minor (unemancipated) children. This reflects the profound responsibility parents have for the upbringing of their dependent offspring.
  2. Seikatsu Fujo Gimu (生活扶助義務 - Duty to Provide for Minimum Living Needs from Surplus): This is a more limited duty. It generally applies to other support relationships where the seikatsu hoji gimu is not operative, such as:
    • Between adult children and their elderly parents.
    • Between siblings.
      Under this type of duty, the obligor is typically required to provide support only to the extent that they have a surplus after meeting their own (and their immediate dependent family's) living expenses appropriate to their social standing. The aim is primarily to ensure that the obligee's basic minimum living needs are met, preventing destitution.

While some contemporary legal scholars argue that this distinction is becoming less rigid and more of a spectrum, it continues to inform judicial reasoning and reflects an underlying societal understanding that the intensity of support obligations varies with the closeness of the familial tie.

C. Order and Method of Support (Articles 878, 879)

  • Order Among Multiple Obligors/Obligees: If there are multiple persons obligated to provide support, or multiple persons entitled to receive it and the obligor's capacity is insufficient for all, the order of priority and the share of each is determined first by agreement among the parties. If no agreement is reached, the Family Court will make the determination (Article 878).
  • Method of Support: While support is most commonly provided through regular monetary payments, it can also take the form of "support by taking in" (hikitori fuyō - 引取扶養), where the obligor provides direct care and lodging. However, due to the intensely personal nature of such arrangements and the potential for conflict, courts are generally reluctant to compel hikitori fuyō against an obligor's will if monetary support is a viable alternative.

III. Key Support Relationships in Practice

The application of these principles varies depending on the specific familial relationship.

A. Support of Elderly Parents by Adult Children

This has become an increasingly prominent issue in Japan due to its rapidly aging society and traditionally strong values of filial piety.

  • Nature of Duty: The obligation of adult children to support their parents in need is generally considered a seikatsu fujo gimu.
  • Multiple Children: All adult children are, in principle, co-obligated according to their respective financial capacities. The Family Court can apportion the support burden among them if they cannot agree. An important Supreme Court decision of February 13, 1951 (最判昭和26年2月13日民集5巻3号47頁) established that an adult child who has provided support to a parent can seek reimbursement from other siblings who failed to contribute their fair share, emphasizing that "a person with deep feelings should not always be the one to bear the loss."
  • Married Children (Homemakers): Even if an adult child is a homemaker without independent income, their capacity to contribute to parental support may be assessed by considering the overall financial status of their household and their access to or benefit from their spouse's income. For instance, a Tokyo Family Court decision of November 7, 1968 (東京家審昭和43年11月7日家月21巻3号65頁) indicated that a wife's ability to contribute could be judged based on the portion of her husband's income to which she had discretionary access.

B. Sibling Support (Kyōdai Fuyō)

While Article 877(1) establishes a direct legal duty of support between siblings, this is often viewed as one of the more contentious and potentially burdensome obligations.

  • The expectation of sibling support can place considerable strain, especially if one sibling's financial capacity is limited or if they have their own immediate family responsibilities.
  • It also interacts with public assistance rules. Under the "household unit principle" of the Public Assistance Act, the income of a cohabiting sibling can disqualify a needy sibling from receiving public aid, even if the supporting sibling is also facing hardship. This has led to calls for legislative review to potentially lessen the stringency of sibling support obligations compared to those in the direct lineal (parent-child) relationship.

IV. Procedural Landscape: Family Court and Agreements

  • Priority of Private Agreement: The Civil Code encourages parties to determine support arrangements through mutual discussion and agreement (Articles 878, 879).
  • Family Court's Role: If an agreement cannot be reached, the Family Court has jurisdiction to resolve support disputes through its conciliation (chōtei) and adjudication (shinpan) processes. The court can determine the existence of a support duty, the order among multiple obligors, and the appropriate amount and method of support.
  • Modification and Termination: Support orders or agreements are not immutable. If there is a significant change in the circumstances of either the obligor or the obligee (e.g., change in income, health, needs), the Family Court can modify or revoke the existing support arrangement (Article 880). The duty also terminates upon the death of either party or the cessation of the underlying family relationship that gave rise to the duty (e.g., divorce terminating spousal support, though not necessarily parental support for children).
  • Claims for Past Support: Generally, a person in need can claim support for past periods, especially where a seikatsu hoji gimu is involved. For seikatsu fujo gimu, courts are often more inclined to consider the obligation to make payments as arising from the time a clear demand for support was made, meaning retroactive claims might be limited to the period after such demand.
  • Reimbursement (Kyūshō): As mentioned, an obligor who has provided support can seek contributions from other co-obligors. Similarly, a third party who is not legally obligated but provides necessary support to a person in need may be able to seek reimbursement from those who were legally obligated, typically based on theories of unjust enrichment or benevolent intervention in another's affairs (jimu kanri - 事務管理).

V. The Interplay with Public Welfare: The Principle of Subsidiarity

A critical feature of the Japanese support system is its relationship with public assistance programs, governed by the Public Assistance Act (Seikatsu Hogo Hō).

The Principle of Subsidiarity (Hosokusei no Gensoku)

Article 4 of the Public Assistance Act embodies the "principle of subsidiarity," which stipulates that an individual must first utilize their own assets and abilities, and then seek support from those who owe them a duty of support under the Civil Code, before they can become eligible for public assistance. Public aid is thus supplementary to private means and familial support.

  • Practical Implications: When an individual applies for public assistance, welfare authorities typically investigate whether there are relatives with the capacity to provide support. The existence of such relatives may affect eligibility or the amount of public aid.
  • Government Reimbursement: If public assistance is granted because obligated relatives fail to provide support despite having the capacity, Article 77 of the Public Assistance Act allows the government entity that provided the aid to seek reimbursement from those obligated relatives, up to the amount they should have reasonably provided.
    This principle reflects a policy choice that prioritizes familial responsibility, though it is sometimes criticized for potentially placing undue burdens on relatives or creating delays in accessing essential public support.

VI. The Inalienable Right to Receive Support (Article 881)

To protect vulnerable individuals, Article 881 of the Civil Code declares that the right to receive support is highly personal and cannot be disposed of. This means it cannot be assigned to others, typically cannot be waived in advance of the need arising, and is generally not subject to seizure by the recipient's creditors. This provision underscores the fundamental purpose of support: to ensure the recipient's basic livelihood.

VII. Conclusion

The Japanese legal system establishes a comprehensive, albeit nuanced, framework for the duty of support among relatives. It delineates a hierarchy of obligations based on the closeness of kinship, with stronger duties imposed on immediate family members (spouses, parents towards minor children) and more conditional duties on other relatives. The Family Court plays a pivotal role in interpreting and applying these principles, aiming to tailor support arrangements to the specific needs of the obligee and the capacity of the obligor, while considering all relevant circumstances. This system of private familial responsibility, while given priority, operates within the broader context of state-provided social welfare, reflecting an ongoing societal and legal dialogue about the appropriate balance between individual family duties and public support in ensuring the well-being of all citizens, particularly in the face of an aging population and evolving family dynamics.