Statement Calling for the Revision of the Discriminatory Provisions of the Civil Code in Response to the Ruling Rendered by the Grand Bench of the Supreme Court Regarding the Requirement for Married Couples to Adopt the Same Surname and the Remarriage Prohibition Period (Summary)
On December 16, 2015, the Grand Bench of the Supreme Court rendered a decision that Article 750 of the Civil Code, which stipulates the requirement for married couples to use the same surname, is not in violation of Articles 13, 14 or 24 of the Japanese Constitution. The grounds for the judgment rendered included the following: (i) the Japanese Constitution does not guarantee the freedom from being required to change one’s surname when registering one’s marriage; (ii) there is no formal inequality between men and women in the same-surname requirement for married couples; and (iii) there is no proof that the same-surname requirement for married couples lacks rationality, in light of the principles of individual dignity and the essential equality of the sexes, as required in Article 24 of the Japanese Constitution.
Article 750 of the Civil Code violates: (i) the respect of people as individuals, which is guaranteed under Articles 13 and 24 of the Japanese Constitution; (ii) the freedom of marriage, which is guaranteed under Articles 13 and 24 of the Japanese Constitution; and (iii) the principle of equal rights, which is guaranteed under Articles 14 and 24 thereof. Furthermore, Article 750 of the Civil Code was also found to be in violation of Article 16-1 of the Convention on the Elimination of all Forms of Discrimination Against Women which guarantees “The same right freely to choose a spouse and to enter into marriage only with their free and full consent” as stated in Article 16-1 (b) thereof, and “The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation” as stated in Article 16-1 (g) thereof.
In the judgment given by the Grand Bench of the Supreme Court, five judges (including all three of the female judges present) expressed their opinion that Article 750 of the Civil Code is in violation of Article 24 of the Japanese Constitution. Among them, Judge Kiyoko Okabe pointed out, and Judges Ryuko Sakurai, Kaoru Onimaru and Yoshiki Yamaura shared her view, that, in most cases, the requirement for married couples to use the same surname leads to the majority of burdens being imposed on the wife’s side, such as troubles relating to personal identification and a sense of losing one’s identity. Judge Okabe also pointed out that there are various contributing factors regarding why most married couples are using the husband’s surname, such as women usually being in a weaker position both socially and economically, even inside the family, as well as the existence of societal pressure to use the husband’s surname. She explained that the system of requiring the use of the same surname for married couples has not been established based on the principles of individual dignity and the essential equality of the sexes. Furthermore, Judge Michiyoshi Kiuchi expressed his opinion that the requirement for married couples to use the same surname goes against the principles of individual dignity and the essential equality of the sexes as stipulated in Article 24 of the Japanese Constitution, and raised a question as to “whether the sense of belonging to a family and/or the feeling of being in a married couple and/or being a parent and child is borne out of sharing the same surname.”
On a separate note, on the same day, the Grand Bench of the Supreme Court also handed down a judgment stating that Article 733 of the Civil Code, which prohibits women (but not men) from remarrying for six months after divorce, is in violation of Articles 14-1 and 24-2 of the Japanese Constitution, on the grounds that the part of the provision which sets up the ban on remarriage for women for more than 100 days is lacking in rational grounds and imposes an overly severe burden on women only.
The JFBA agrees with the finding in the judgment that Article 733 of the Civil Code is in violation of the Constitution. However, it is our opinion that setting up a period which bans remarriage only to women can ever be acceptable, even if such period is shortened to 100 days (from six months) as an unavoidable minimum period.
Accordingly, the JFBA strongly urges the Japanese government to promptly revise Articles 750 and 733 of the Civil Code, as well as to revise Article 731 of the same act (which stipulates the marriageable age).
December 18, 2015
Japan Federation of Bar Associations