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Japan’s top court upholds same-name rule for married couples, overturns remarriage moratorium for women

by Tomohiro Osaki

Staff Writer

The Supreme Court on Wednesday upheld the constitutionality of a controversial Civil Code provision requiring married couples to use the same surname in official matters.

The decision was a blow to campaigners who sued the state, asking the nation’s highest court to declare the rule unconstitutional.

The matter is contentious in Japan, with opponents calling it an infringement of women’s fundamental rights and conservatives regarding shared names as a central pillar of the family unit.

The top court did, however, declare that a law prohibiting female divorcees from remarrying within six months of their divorce is unconstitutional.

In response to the ruling on the ban on remarriage, Justice Minister Mitsuhide Iwaki responded Wednesday evening by pledging a swift legal revision. Noting the ruling suggested the ban be shortened to 100 days, the ministry issued a notice to its regional bureaus nationwide that women wishing to remarry 100 days after a divorce should be allowed to do so even before any legal revision takes place, Iwaki said.

Both rulings relate to family laws dating from the Meiji Era (1868-1912). Campaigners who brought the pair of lawsuits alleged discrimination against women.

One suit, filed in 2011, involved a statute requiring Japanese spouses to choose which single family name — the husband’s or the wife’s — to adopt in legally registering their marriage.

The plaintiffs argued this amounts to gender discrimination because being forced to choose a single surname infringes on personal dignity and the freedom to marry.

Presiding Justice Itsuro Terada said sharing a single family name is a system “deeply rooted in our society” and is meaningful in that it “enables people to identify themselves as part of a family in the eyes of others.”

Although admitting that being pressured to forfeit a maiden name often works to women’s disadvantage professionally — and may even trigger an identity crisis — Terada said such hardships can be mitigated, since women are free to use their maiden names in daily life.

However, campaigners cite inconveniences in the workplace as a significant reason for their opposition to the rule. Some say when a woman known professionally by her maiden name has to adopt a new one it creates major complications.

Meanwhile, the top court similarly rejected the plaintiffs’ appeal for a combined ¥6 million in compensation.

Noting that the law gives couples the freedom to decide which surname to adopt, Terada said it is not discriminatory in itself.

However, studies in the past 40 years show more than 96 percent of Japanese couples have opted for the husband’s name.

Some of the plaintiffs reported emotional distress in the form of depression and difficulty sleeping.

Coming at a time when the global trend is increasingly toward allowing the use of separate names, the ruling is “anachronistic,” said Masayuki Tanamura, a professor of family law at Waseda University.

“The ruling will not encourage women to remain in the workforce after marriage and childbirth,” Tanamura said. “As the circumstances surrounding a family and public perceptions of it are evolving, the Civil Code provision, based on an outdated view of the family, must be changed.”

He added that the Diet should not take the ruling as an excuse for inaction, but should promptly revise the law.

Waseda Law School professor Mutsuko Asakura also lambasted the ruling.

Noting only three female judges on the 15-member Grand Bench of the top court that examined the case, she said the ruling underscored the gross lack of understanding by male judges toward inconveniences long imposed on women. It even risks further cementing the international community’s perception of Japan as a country “intolerant of diversity” and “insensitive to human rights,” she said.

Meanwhile, in response to a lawsuit filed by a 30-something female divorcee from Okayama Prefecture, the top court recognized the unconstitutionality of a separate statute prohibiting women from remarrying within six months of their divorce.

The court, however, rejected the woman’s appeal for ¥1.65 million in compensation for emotional distress.

Critics call the measure outdated in an era of early pregnancy detection and of DNA sequencing, which can identify paternity to a degree of accuracy unthinkable a century ago.

Terada said the ban represents an “excessive restriction” on women’s freedom of marriage.

Yet reducing the ban to 100 days would pose no constitutional problem, he said in reference to a related clause that says a child born within the first 300 days after a divorce is legally a descendant of the former husband, while a child born at least 200 days after the second marriage is deemed to be that of a new partner.

Debate over whether to revamp the Civil Code, which dates from the Meiji Era, flared up in the 1990s following Japan’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women in 1985.

In response to public calls for change, a legislative panel of the Justice Ministry proposed amendments in 1996 to legalize having separate surnames and to shorten the six-month ban on remarriage.

It provoked fierce opposition from conservative lawmakers, and the proposals were shelved, defeating what would have been the biggest postwar overhaul of family laws.

Even today, resistance to the idea of spouses retaining separate names remains particularly strong among lawmakers within the ruling Liberal Democratic Party. Despite Prime Minister Shinzo Abe’s push for “womenomics,” or the greater inclusion of women in society and economic life, the party opposes allowing separate surnames on the grounds that it would destroy “the sense of family unity.”

Public opinion is divided, too.

A survey conducted by the Cabinet Office in 2012 showed that respondents were split, with 35.5 percent in favor of allowing separate surnames and 36.4 percent against. A survey conducted by public broadcaster NHK last month also showed that 46 percent of respondents support the idea, while 50 percent oppose it.

The U.N. Committee on the Elimination of Discrimination against Women has repeatedly urged the government to take “immediate action” to amend the law.