Two married couples earlier this month filed lawsuits against the state, saying the system requiring a couple to adopt the same surname when they register their marriage is causing them inconvenience and distress. While the prevalent practice for most couples is to adopt the husband’s surname upon marriage, the plaintiffs include a couple who chose to use the wife’s surname when they married — an indication that the system can present problems for both men and women. The government and lawmakers should recognize the difficulties this is causing people and hold serious discussions to consider changes to relevant laws.
In 2015, the Supreme Court upheld the constitutionality of a Civil Code provision that requires the same surname for wife and husband, saying the practice has rational grounds since the family is a natural and basic unit of society. But the top court also said the issue of whether married couples should be allowed to use different surnames if they so wish should be discussed by the Diet.
The male plaintiff who adopted his wife’s surname upon marriage is the president of a software development firm listed on the first section of the Tokyo Stock Exchange. Now in his 40s, the man married in 2001 and continued to use his original surname in his business activities and established his reputation as an entrepreneur under that name. He says he encounters troubles on some occasions when he has to use his legal surname, such as when obtaining a passport, signing official documents or attending a shareholders meeting.
Another of the plaintiffs, a woman from Kanagawa Prefecture, says that since she had strong attachment to her maiden name, the adoption of her husband’s surname upon marriage led to a loss of identity and pride on her part. The woman, who uses her maiden name in her work, also says she is reluctant to have children out of fear that she and her kids would have to use different surnames in daily life.
What distinguishes the latest lawsuits from earlier similar suits, which were initiated by women who had to adopt their husbands’ surnames upon marriage, is that they target what they regard as a flaw in the Family Registry Law, whereas the Civil Code provision was at issue in past lawsuits. The plaintiffs are believed to have taken this approach since the top court had already ruled the Civil Code’s same surname provision is constitutional.
Under the Family Registry Law, when a Japanese and non-Japanese marry they have the choice of using different surnames or the same surname. But the law prohibits Japanese couples from having different surnames when they marry. The plaintiffs argue that the law violates Article 14 of the Constitution, which guarantees the equality of all people under the law, and thus is unconstitutional. They also think that the law runs counter to the spirit of Article 24 of the Constitution, which says that “laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.”
In 1996, the Legislative Council, an advisory body for the justice minister, recommended that the Civil Code’s same surname provision should be revised so that couples will be allowed to adopt different surnames in registering their marriage if they so wish. But conservatives within the Liberal Democratic Party put up such strong opposition to the proposed change, citing the importance of what they view as traditional family values, that the party gave up trying to revise the law. In 2009, then-Justice Minister Keiko Chiba of the Democratic Party of Japan-led government supported such a revision. But her attempt was quashed by the party’s ruling coalition partner, Kokumin Shinto (People’s New Party).
The government and the Diet should be aware of the fact that people’s values and their views on family have become diverse, and there are those who suffer from disadvantage, inconvenience and even mental anguish due to the surname system. It should be noted that the 2015 Supreme Court ruling was not unanimous by the top court’s 15 justices — five gave dissenting opinions.
In September, the top court started allowing married judges and workers in courts nationwide to use their nonlegal original surnames in official documents, including rulings and warrants. Yuko Miyazaki, a former lawyer, who became a Supreme Court justice this month, announced that she will continue to use her maiden name in her official duties — the first top court justice to do so. The government and the Diet should remember that it is their task to make necessary adjustments to laws as society and people’s values change.
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