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The Supreme Court’s Grand Bench in early November wrapped up oral arguments on the constitutionality of two cases involving marriage rules — one requiring married couples to choose and use one surname and the other prohibiting women from remarrying for six months after divorce. What is at stake is whether the two rules are compatible with the real situations people face in today’s society. Apart from the top court’s decisions, expected by the end of this year, the Diet should start work to change the rules to remove the unreasonable constraints they impose on people.

The Grand Bench, composed of the Supreme Court’s 15 justices, usually holds hearings before handing down important rulings. Citing Article 13 and Article 24 of the Constitution, which respectively uphold the dignity of individuals and equality between the two sexes, the lawyers for plaintiffs in the two cases urged the top court to rule that the rules are unconstitutional, while the defense for the national government, the defendants in the cases, insisted that they are constitutional.

The plaintiff in the case over the remarriage ban period is a woman in her 30s from Okayama Prefecture who divorced her violent husband. She is seeking damages from the government, claiming that the postponement of her remarriage due to the six-month ban — which she characterizes as irrational discrimination — caused her mental anguish. The intent of Article 733 of the Civil Code, which imposes the six-month ban, is to avoid confusion over who is the father of a child born to a recently divorced woman. It corresponds to a separate clause stipulating that a baby born within 300 days of divorce is the child of the previous husband while one born at least 200 days after the second marriage will be considered the child of the new husband.

The plaintiff’s lawyers told the Supreme Court that the rule runs counter to the principle of equality under the law and limits women’s freedom in marriage. They also said that the rule restricts women’s remarriage for an unnecessarily long period and that the advance in DNA test technology can prevent confusion over paternity. The government argued that the rule remains relevant because the number of people who use DNA tests is still limited.

The six-month remarriage ban is causing a serious problem for women who suffer domestic violence by their husband and give birth to children within six months of their divorce. If a woman in this situation chooses not to register the child as that of her former husband, she legally needs the cooperation of her ex-spouse. Some women in this position, to avoid contact with an abusive former husband, choose not to register the birth of the new child at all. Without the official registry of their birth, these children cannot have a residential registration certificate, which forces them to face social disadvantages, such as denial of entrance into high school or inability to exercise the right to vote.

The case over the same-surname requirement for married couples involves five plaintiffs seeking damages from the government for the mental anguish they have suffered. Their lawyers say that the rule violates people’s rights by forcing them to change their surnames when they marry and that many women suffer mental anguish from the inconvenience they encounter at work and in other matters.

Article 750 of the Civil Code stipulates that a married couple must choose either the wife’s or the husband’s surname. The government argued that the rule itself does not grant superiority to either party of a couple. But the general custom in Japan is for the wife to adopt the husband’s surname. Although the rule allows couples to choose which name to take, more than 96 percent opt for the husband’s family name, according to a survey by the Health, Labor and Welfare Ministry.

Many women continue using their maiden names at work and elsewhere informally. But on all official documents their surname must be the same as that which appears in their family register. Kaori Oguni, one of the five plaintiffs, who is an administrative scrivener, had no other choice but to use her married surname as it appears on her family register to sign a will that she had helped to create as a witness at a notary public’s office. The plaintiffs’ lawyers told the top court that since the period in which women use their maiden name has become longer these days due to the tendency to marry late in life, the change of surnames after marriage is now more likely to cause inconveniences than before.

The two rules in question were created during the Meiji Era. They fail to properly deal with societal changes that have since taken place, including diversified forms of families, and cause problems for many people. The time has come for the Diet to stop waiting for the Supreme Court’s judgment and instead move to rectify the situation through legislation.

In view of the Convention on the Elimination of All Forms of Discrimination against Women — adopted by the United Nations in 1979 and ratified by Japan in 1985 — as well as changes in Japanese society, the Legislative Council, an advisory body to the justice minister, submitted an outline for revising the Civil Code in 1996, recommending the introduction of a system in which wives and husbands can choose to continue to use different surnames if they wish and shortening the ban on women’s remarriage after divorce to 100 days. However, the Justice Ministry was unable to propose relevant legal amendments to the Diet due to opposition from conservative lawmakers, who said that changes to the rules would undermine traditional family values.

The lawmakers should shed their outdated view and proceed to make necessary legal amendments to quickly end the discrimination, injustice and inconveniences caused by the two marriage-related rules.

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