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Article Japan: Supreme Court States Family Name System Constitutional

(Jan. 8, 2016) On December 16, 2015, the Japanese Supreme Court held that a Civil Code provision that requires one partner of a married couple, which in practice is nearly always the female partner, to change his/her surname to that of the other partner does not violate the relevant provisions of the Constitution. (Case No. 2014 (o) 1023 (Dec. 16, 2015) (in Japanese) [click on the two characters beside .pdf icon].)

Nonviolation of the Principle of Equality (Art. 14)

Among other pronouncements, the Court stated that article 750 of the Civil Code does not violate article 14 of the 1946 Constitution, which guarantees equality of all people under the law. (Civil Code (Part IV and Part V (Tentative Translation), Act No. 89 of 1896, JAPANESE LAW TRANSLATION; Constitution of Japan (Nov. 3, 1946), Prime Minister of Japan and His Cabinet website.)   Article 750 of the Civil Code states that a married couple must adopt either the husband or the wife’s family name. It is up to a marrying couple to decide which family name will be adopted. Therefore, the Court concluded, the provision itself does not discriminate against women. (Case No. 2014 (o) 1023, supra, at 4-5.)

Nonviolation of the Principle of Equality of the Sexes (Art. 24)

One key issue considered by the Court was whether article 750 of the Civil Code violated article 24, paragraph 2, of the Constitution. The constitutional provision states:

With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes. (Constitution, art. 24, ¶ 2.)

The Court stated that, under this provision, it is not enough that the language of a law does not violate the principle of gender equality. A law must respect the dignity of the person, take into consideration the provision of substantial equality between the genders, and effectively seek not to place undue constraints on the formation of marriages. (Case No. 2014 (o) 1023, supra, at 7.)

The Court found that the same-name system has been well established and accepted by Japanese society and that there is merit in the adoption of such a system. The Court, however, found a problem with the system in that one member of a couple must change his or her surname. There are disadvantages for the one who changes the name, e.g. a feeling of a loss of identity and loss of a reputation that has been earned under a different name. Also, given that 96% of married couples in the last 40 years have chosen the husbands’ family name, women almost always are the ones who deal with those disadvantages. In some cases, the Court found that couples avoid legal marriage just to sidestep such problems. However, the Court did not find the provision unconstitutional and noted that it is a widespread practice in society in recent years for women to keep using their maiden names in certain professional or social situations. This practice has eased the disadvantages of the same-name-system. Therefore, overall, the system does not violate the Constitution, the Court held. (Id. at 8-10.)

Other Aspects of the Decision

The Court also commented that the change-of-name system for a married couple ought to be discussed in and decided upon by the Diet (Japan’s legislature). (Id. at 10.)

Of the 15 Justices comprising Japan’s Supreme Court, five, including all three female Justices, expressed the opinion that the Civil Code provision does violate article 24, paragraph 2, of the Constitution. (Provision That Does Not Allow Different Names for a Married Couple “Constitutional,” First Decision by Supreme Court, “Rational to Have One Family Name for a Family,” TOKYO NEWSPAPER (Dec. 17, 2015) (in Japanese).)

 

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Chicago citation style:

Umeda, Sayuri. Japan: Supreme Court States Family Name System Constitutional. 2016. Web Page. https://www.loc.gov/item/global-legal-monitor/2016-01-08/japan-supreme-court-states-family-name-system-constitutional/.

APA citation style:

Umeda, S. (2016) Japan: Supreme Court States Family Name System Constitutional. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2016-01-08/japan-supreme-court-states-family-name-system-constitutional/.

MLA citation style:

Umeda, Sayuri. Japan: Supreme Court States Family Name System Constitutional. 2016. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2016-01-08/japan-supreme-court-states-family-name-system-constitutional/>.