Upper House lawmaker Mizuho Fukushima and her partner, Yuichi Kaido, have been together for about 40 years. They don’t celebrate any kind of anniversary, however, because they’ve never been officially married.

The couple made a mutual decision to abstain from getting married several decades ago for one simple reason — they wanted to keep their own surnames.

By law, Japanese couples must adopt either the husband’s or the wife’s family name when registering the marriage at their local ward office, with surveys showing that more than 96 percent of couples opt for the husband’s last name.

Some argue the law should be revised to allow people to use separate names, which would more closely reflect the practical realities of an individual’s situation. Others, however, oppose such a move on the basis that it would destroy traditional family structures.

The debate surrounding this issue has continued for several decades without any real progress being made. The Supreme Court, however, is expected to rule on the constitutionality of being forced to take on another surname upon marriage by as early as the end of the year.

Fukushima and Kaido say their choice has ultimately turned out for the best.

Until Fukushima was around 18, she initially accepted the fact she would most likely have to change her name upon marriage. The more she thought about it, the more she opposed taking such action.

“I am Mizuho Fukushima and I didn’t understand why I had to be absorbed and merged (into another family),” Fukushima says. “In order to register our marriage certificate, we had to have the same last name. And so, we decided to choose a lifestyle that allowed us to keep both of our names.”

Initially, the decision to spurn marriage was not a big deal. They were a young couple in a stable relationship who were starting their careers as lawyers. Fukushima eventually became a member of the Upper House and led the Social Democratic Party for a decade until 2013. Kaido, meanwhile, is one of the country’s leading lawyers in the field of human rights.

Kaido says he understood where Fukushima was coming from because he also wanted to retain his last name.

“I felt like I was going to completely lose my identity by becoming Yuichi Fukushima, which also happened to be the name of an acquaintance of mine,” Kaido says. “It goes against gender equality to make a woman take her husband’s name. The only fair way for us to have sorted this out would have been for us to choose by lottery.”

Things changed, however, when Fukushima became pregnant at the age of 30. Although it was a planned pregnancy, Fukushima was torn because her child would be born out of wedlock if they didn’t have a marriage certificate.

Many couples who abstain from getting married in order to retain their last names officially register their unions at their ward offices, filing for divorce after the certificate is accepted.

Although Fukushima stopped by her local ward office to get the requisite certificates, the couple ultimately decided to not to register their marriage.

“Having a baby without a marriage certificate is one of the hardest decisions I’ve ever had to make in my life,” Fukushima says. “I was so worried that our child would be the object of discrimination.”

‘Extreme individualism’?

Surnames weren’t historically common in Japan, with last names only handed down by samurai families.

In 1870, the Meiji government permitted commoners to take on surnames, while in 1876, lawmakers decreed that women should keep their family names upon marriage, which resulted in separate last names between spouses.

The situation was reversed in 1898 after the government enacted the Civil Law, which forced women to adopt their husband’s name upon marriage.

A subsequent revision in the postwar years eased this requirement slightly, although Article 750 still required married couples to use a single surname.

In the early 1990s, the Justice Ministry debated whether or not to introduce a system by which married couples could choose to use different surnames.

In 1996, the Justice Ministry’s Legislative Council went a step further and called for the Civil Law to be amended so that the couple can either “assume the surname of the husband or wife, or assume their surnames prior to marriage.”

Almost 20 years later, the clause remains untouched, with members of the ruling Liberal Democratic Party as well as several opposition lawmakers dogmatically opposed to the revision.

Hidetsugu Yagi, a professor of constitutional law at Reitaku University in Chiba Prefecture, says having the same last name keeps family bonds tight.

“I think we’re seeing the spread of extreme individualism,” Yagi says. “A family with the same last name has a sense of unity. If parents and siblings all have different names, whose family is it?”

Working women find the situation especially inconvenient, and many are forced to use their married surnames in the workplace.

In 1988, a female professor sued her employer so that she could use her maiden name at work. Although the Tokyo District Court dismissed the case, she eventually reached a settlement with the university in 1998.

From October 2001, government officials have been allowed to use their maiden surnames at work upon request. Since then, using “common names” in the workplace has become fairly typical for women, including lawmakers such as internal affairs minister Sanae Takaichi and Environment Minister Tamayo Marukawa.

“For the most part, the problem started because women wanted to use their maiden names,” Yagi says. “In my opinion, I think that the surname issue has pretty much been resolved because the use of maiden names as common names has effectively been put into practice.”

Divided opinion

By using a common name, however, women essentially have to juggle two names. Official documents, including health insurance and driving licenses, must have a woman’s married name in accordance to the official name as written in the family registry.

In Japan, each person’s legal status is recorded on a family registry, which lists information on such things as their nationality, date of birth, place of birth and marital status.

The system is used in very few countries around the world, including Japan and Taiwan, while South Korea abolished it in 2008.

Yagi says those supporting a revision to legislation that would allow separate surnames to be used are ultimately trying to abolish the family registry system altogether.

“The family registry identifies couples and their children as one unit … and this unity is what protects the welfare of the children,” Yagi says. “It also ties families together, making it more difficult for couples to separate and/or divorce. I am concerned that without the family registry, more and more people will fall into a cycle of marriage and divorce.”

Opinion polls suggest people are divided on the issue. In 2012, 35.5 percent supported a revision of Article 750, while 36.4 percent were against any changes to the law and argued that married couples should have the same surname. The numbers also show a decline of those in favor of being able to choose separate last names from what was 42.1 percent in 2001.

Twenty-four percent of the respondents also believed spouses should have the same last names but they weren’t opposed to a revision that would allow women to use their maiden names legally as well.

Yagi, who has known Prime Minister Shinzo Abe for about 20 years and is known as the brains behind Abe’s core conservative policies, says Abe is strongly opposed to the introduction of legalizing different surnames.

“Opposing different surnames has become a sort of symbol for Abe who says that he cannot see eye to eye with people who support it,” Yagi says. “He talks about female empowerment but that’s a completely different story from this issue. He is a man of principle.”

The decision, however, may be taken out of the prime minister’s hands.

Five people have filed a lawsuit against the government, arguing that the existing legislation that requires married couples to adopt the same surname violates gender equality as guaranteed under the country’s Constitution.

The Tokyo District Court, however, dismissed the lawsuit in May 2013, ruling that the Constitution doesn’t guarantee the right to separate surnames.

The ruling was upheld in the Tokyo High Court in 2014 and is now in the hands of the Supreme Court. The Supreme Court plans to convene on Nov. 4 to hear arguments from both sides.

Missed opportunity

Masayuki Tanamura, a professor of family law at Waseda University, says the Supreme Court needs to deliver a clear unconstitutional ruling in order to ensure Abe takes legislative measures.

“The fact the Supreme Court is getting involved means the Diet or political process is not functioning properly,” Tanamura says. “If it was, there would be no need for an intervention. In order for something to change, there now needs to be a judicial intervention.”

Japan ratified the Convention on the Elimination of All Forms of Discrimination Against Women in 1985, and has subsequently enacted the equal employment opportunity law and the gender equality law.

Meanwhile, the U.N. Committee on the Elimination of Discrimination against Women has repeatedly argued that Article 750, among others, is discriminatory and called on Japan “to take immediate action” to revise it.

Tanamura acknowledges there are people who do feel a sense of unity by having the same surname and they should be able to choose so, just as those who want separate last names should also be allowed to choose.

Merely enabling women to use their maiden names at work simply isn’t enough, he says.

“The problem is that there are people who want to choose to have separate surnames but can’t. In other words, they are being forced to abandon their maiden names,” Tanamura says. “A person’s name should be protected under moral rights because a person’s name expresses who they are.”

According to Tanamura, Western countries have been changing their systems to allow women to choose to keep their surnames upon marriage since the women’s liberation movement took off in the 1970s. Countries such as Germany and Sweden allow people to choose and, more recently, Turkey and Thailand have also enabled women to adopt separate last names.

And then, there are countries such as South Korea and China, where married couples historically assume separate surnames, or countries such as Cambodia where the name structure is completely different.

Japan, meanwhile, remains unchanged. Moreover, the system is inconsistent because when a Japanese national marries a non-Japanese spouse, they can either choose to keep their surname or change it to their partner’s.

“Quite a few international marriages take place nowadays and to recognize separate surnames for them while prohibiting Japanese couples from doing the same seems wrong,” Tanamura says. “This issue encompasses many problems, including a person’s identity and moral rights as well as a perceived inconvenience in the workplace. There is strong international criticism against Japan.”

Japan missed an opportunity to amend the Civil Law when the Democratic Party of Japan ousted the LDP and took power between 2009 and 2012, Tanamura says.

Revising the law to enable women to choose whether or not to change their surname is a policy that has been advocated by the DPJ. Indeed, the party has repeatedly submitted bills to the Diet, most recently in May this year.

During its time in power, however, the DPJ had a coalition agreement with the now-defunct Kokumin Shinto (People’s New Party), whose leader, Shizuka Kamei, was adamantly against any such revision. Fukushima, who was the head of the Social Democratic Party at the time, was also a Cabinet minister in charge of gender equality and expresses regret for not being able to resolve the issue of surnames.

“It’s true that we missed an opportunity to help give people the right to choose separate surnames,” Fukushima says. “Some were strongly advocating it, but it is also true that some were against it. It is disappointing that, in the end, the push for separate surnames wasn’t strong enough.”

The right to choose

More than three decades have passed since Fukushima and Kaido elected not to get married in order to keep both of their surnames. As far as they are concerned, they have not experienced too many problems and their parents ultimately respected their decision.

One major obstacle for them, however, is inheritance.

Because Fukushima and Kaido are technically “strangers” without a legal marriage certificate, they would have to pay an enormous amount of tax to inherit each other’s assets.

While the decision to abstain from getting married has worked out for them until now because they both had separate incomes, the couple is aware that others would find themselves in a more tenuous position. Housewives who don’t earn an income, in particular, are very vulnerable.

“We made this choice in order to keep our surnames but it will not work for everyone. Large financial risks are involved,” Kaido says. “Our choice worked for us, but I have no intention of pushing it onto other people.”

In their case, Fukushima and Kaido let their kindergarten-age daughter decide which surname she wanted to adopt — she chose Kaido.

Because a child automatically takes on their mother’s last name when they are born out of wedlock, the couple filed an application with the Yokohama Family Court’s Kawasaki branch to have their daughter’s surname changed from Fukushima to Kaido.

Fukushima and Kaido say they are happy their daughter never experienced any bullying or discrimination over her last name.

What’s more, it looks like their daughter inherited her parents’ awareness: she studied gender issues in graduate school and is now a practicing lawyer.

“There is no right or wrong answer because happiness is different for each person,” Fukushima says. “Life is diverse and the important thing is that people be allowed to choose how they want to live their life.”

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