The Supreme Court’s Grand Bench last week upheld the constitutionality of the Civil Code provision requiring a couple to use the same surname when they register their marriage. The 10-5 ruling by the justices at the same time called on the Diet to discuss whether Japan should allow married couples to use different surnames if they so wish. The Diet should not take the ruling as an excuse for inaction and should instead start the process to change the provision by fully taking into account the inconveniences and disadvantages many women suffer under the same-surname system, even to the point of suffering an identity crisis.
The Grand Bench, composed of 15 justices, in a separate but related ruling declared that another Civil Code provision prohibiting women from remarrying within six months of their divorce is unconstitutional, suggesting that the ban should be shortened to 100 days. The six-month ban has been designed to avoid confusion over who is the father of a child born to a recently divorced woman. But the top court ruled that since under the Civil Code a child born within 300 days after divorce is deemed that of the previous husband and one born after 200 days have passed since marriage that of the current spouse, a remarriage ban longer than 100 days is irrational, noting that keeping in force such a margin to avoid confusion over the child’s paternity cannot be justified in view of modern DNA technology that can determine the father of the newborn with a high degree of accuracy.
While the Diet should quickly take action concerning the six-month remarriage ban, it should go beyond the ruling and consider whether a 100-day ban is reasonable given the advance of DNA tests, which are relatively inexpensive and can be easily conducted.
The roots of the two Civil Code provisions go back to the Civil Code introduced in 1898. Incongruities of the provisions set during the Meiji Era with social changes that have since taken place, including diversified forms of and views about families, have come to the fore and are causing problems for many people. The Meiji Civil Code, which served as the legal underpinning of the ie family system in prewar Japan, mandated that all members of a family must use the surname of the head of the family, which in principle was the husband.
Although the Civil Code abolished the ie system through a 1947 revision, it retained the same-surname requirement but said that married couples can choose either the wife’s or husband’s family name. The majority Supreme Court opinion last week said that since the question of which surname to adopt is a decision every couple can make, there is no “formal inequality” between the two genders and the same-surname system does not violate either Article 14 of the Constitution, which guarantees equality under the law, or Article 24, which stipulates individual dignity and essential equality of the sexes.
While the ruling acknowledges that a change of surname can lead to an identity crisis and professional disadvantages, in most cases among women, and that the current system forces some people to choose not to marry, it said that those disadvantages and problems can be mitigated through a broader use of pre-marriage surnames. It is true that use of pre-marriage surnames in the workplace is widening. According to a survey of major companies by the private Institute of Labor Administration, workers were allowed to use their pre-marriage surnames for their work at 64.5 percent of the firms in 2013, up from 17.8 percent in 1995. But the ruling failed to take a close look at the reality.
The use of pre-marriage surnames as mentioned by the ruling is not based on law, and is therefore not allowed to be used in official or legal matters, such as in obtaining a driver’s license and passport or opening a bank account. Some women reportedly think that the change of their surnames upon marriage is tantamount to losing the identity that they have built up through their life and job career. If a couple chooses de-facto marriage in order to retain separate surnames, neither of them can become a legal heir to each other or exercise joint parental authority over their children.
It is noteworthy that all three of the female justices on the Grand Bench said the same-surname system is unconstitutional on the grounds that it imposes irrational conditions on people who marry and restricts the freedom of marriage. Their opinion should be interpreted as representing the sentiments of the many women who suffer disadvantages and anguish under the system.
Attention should also be paid to what one of the three judges said about a survey finding by the Health, Labor and Welfare Ministry that 96 percent of married couples opt for the husband’s family name. She said that even if the wife agrees to use the husband’s surname, inequality and power relationship in real life influence the decision-making process, and that this process is not based on individual dignity and gender equality. It would not be far-fetched to say that the split decision of the top court reflects the gender gap in awareness of the problems surrounding the issue.
Even as the top court upheld the constitutionality of the same-surname system, it said its ruling does not mean that a system of letting a married couple choose to use separate surnames if they wish would be irrational. The Diet should pay heed to this point and discuss the issue from a viewpoint of removing what many women regard as discriminatory under the current system, even if the law is gender-neutral.
Conservative lawmakers, who stress the importance of the family system and argue that separate surnames for married couples would threaten family values, should be tolerant enough to accept that the current system poses potential difficulties for many married people. They should listen to what one of the female justices said — that there are no grounds to the allegations that couples who chose to use different surnames would likely to face marital problems and that their children would have problems in their personal growth.