Statement Calling to Amend Article 750 of the Civil Code to Introduce a Discretional Separate-surname Retaining System on the Occasion of the Pronouncement of Ruling by the Supreme Court’s Grand Bench

• Japanese

On June 23, 2021, the Grand Bench of the Supreme Court of Japan ruled that Article 750 of the Civil Code and Article 74, item (i) of the Family Register Act requiring married couples to have the same surname are not in violation of Article 24 of the Constitution of Japan.

Article 750 of the Civil Code provides that a husband and wife shall share the same surname and, in accordance with Article 750, Article 74, item (i) of the Family Register Act requires that a husband and wife shall submit a notification of marriage indicating the surname they are going to hold. Accordingly, with the two provisions combined, the notification of marriage is not accepted unless a husband and wife decide on a single surname to share. The case tried this time was a special appeal against the family court’s decision, appealing for a court order to accept the notification of marriage where a husband and wife are holding respective surnames.

In the trial, the majority of the Supreme Court’s Grand Bench adjudicated both provisions to be constitutional on the ground that, citing the judgment pronounced by the Supreme Court’s Grand Bench on December 16, 2015, the decision should not be changed even taking into consideration the diverse circumstances observed after the pronouncement of the decision. However, as the Japan Federation of Bar Associations (the “JFBA”) has been reiterating over the years, Article 750 of the Civil Code infringes on the following rights protected by the Constitution of Japan: (1) respect for individuals guaranteed by Article 13 and the second paragraph of Article 24; (2) freedom of marriage guaranteed by the first paragraph of Article 24 and Article 13; and (3) the right to equality guaranteed by the first paragraph of Article 14 and the second paragraph of Article 24. Additionally, it violates “[t]he same right freely to choose a spouse and to enter into marriage only with their free and full consent” and “[t]he same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation,” guaranteed by Article 16(1)(b) and (g), respectively, of the Convention on the Elimination of All Forms of Discrimination against Women.

The ruling issued at this time is quite unjust, since there was almost no substantive examination on the unconstitutionality of Article 750 of the Civil Code, except just citing the judgment rendered in 2015. The judiciary should have fulfilled their role as the last fortress of human rights by amending the 2015 ruling and pronouncing the unconstitutionality of Article 750 of the Civil Code.

Meanwhile, however, four judges decided the aforementioned two provisions unconstitutional after having examined them in great detail, which indicates there was a division of opinion among the judges of the Grand Bench. Additionally, the majority opinion—while holding that Article 750 of the Civil Code is not in violation of the Constitution of Japan—emphasized as follows: “the two issues, that is, the issue of what kind of system should be adopted as an appropriate legislative policy related to a married couple’s surname, and the issue of whether the current statutes requiring a single surname for a married couple is in violation of Article 24 of the Constitution of Japan and hence invalid—namely the issue of examining the constitutionality of these statutes—exist in separate dimensions” and “the mode of the system [related to a married couple’s surname] is nothing but an issue that should be debated in and decided by the Diet, as pointed out in the Grand Bench’s ruling in 2015.” The subsidiary opinion has also urged yet more strongly that the Diet facilitate the debate over the issue. Thus, the Diet should recognize the magnitude of the Supreme Court’s Grand Bench having required them, twice, to hold the debate in the Diet.

A quarter century has passed since the Legislative Council of the Ministry of Justice advising the Minister of Justice submitted an advisory report in 1996 proposing a draft outline of the amendment to the Civil Code to introduce a discretional separate-surname retaining system. Although enough arguments have been made thereafter, the Diet has left the issue unattended. Procrastinating the legislature’s debate is not acceptable any longer.

Accordingly, the JFBA calls on the Government again to amend Article 750 of the Civil Code immediately and embrace a discretional separate-surname retaining system.