The Supreme Court's Grand Bench ruled on Dec. 16 that a Civil Code clause requiring married couples to use the same surname is constitutional. With regard to another provision in the law that bans women from remarrying for six months after divorce, the top court declared that the period of a remarriage ban on women that exceeds 100 days after divorce is unconstitutional. Still, the ruling should not be interpreted as the judicial branch's justification of the Diet's failure to review these clauses.
These provisions have been maintained for over 100 years since the Meiji era.
Concerning the provision requiring married couples to use the same surname, the Grand Bench, comprised of all the top court's 15 justices, pointed out "it can be assumed that those who changed their surnames felt their identities had been lost and women suffer disadvantages in many cases." However, the ruling said, "Such disadvantage can be mitigated to a certain extent by allowing the wider use of their maiden names."
One cannot help but wonder whether the ruling means that those who changed their surname after marriage should accept certain disadvantages. Serious doubts remain as to whether a large number of members of the general public, particularly women, understand the ruling.
The ruling urged the legislative branch to discuss the matter. The Supreme Court also stated that a system under which a husband and a wife would be allowed to select whether to use the same surname or maintain their original surnames cannot be deemed as irrational.
Family values form the basis of citizens' lives. The Diet should get down to fundamentally review the relevant clauses in the legislation while listening to opinions of members of the general public.
The old Civil Code that came into force in 1898 stipulated that married couples should have the same surname. Behind this provision is a system under which women were supposed to join their husbands' families. After World War II, such a family system was abolished, but the provision on the same surname for married couples was retained.
The postwar Civil Code stipulates that "a husband and wife shall adopt the surname of the husband or wife in accordance with that which is decided at the time of marriage." Although the provision is neutral, an overwhelming majority, about 96 percent, select the husbands' surnames.
As more and more women are advancing into society, a growing number of them ask for freedom to retain their surnames after marriage. In response, the Legislative Council of the Justice Ministry worked out a proposal in 1996 to revise the Civil Code to introduce a system under which husbands and wives would be allowed to have separate surnames. However, many legislators with the Liberal Democratic Party (LDP), which has been in power for many years, voiced stiff opposition to the proposal on the grounds that family ties would be damaged if the husband and wife were to use separate surnames. As such, no substantive discussions have been held on the issue. The previous administration led by the Democratic Party of Japan (DPJ) also failed to take any action to discuss the introduction of such a system.
Families are undoubtedly the smallest units that make up society. However, the idea that family ties could be damaged if married couples used separate surnames is difficult to understand.
There are a growing number of couples who select common-law marriages without submitting marriage notifications. However, that does not necessarily damage ties within their families. More than 200,000 married couples who share the same surnames divorce every year.
In nearly 30 percent of cases where couples register their marriage in recent years, either the husband or wife is getting married for the second time or more. There are a growing number of single mothers. Families are diversifying as the trends of the times have changed.
The introduction of a system allowing married couples to use separate surnames would mean that the wishes of couples who want to use the same surnames would also be respected. In an opinion poll conducted by the Mainichi Shimbun earlier this month, 73 percent of respondents said they would use the same surname even if a system allowing married couples to use separate surnames were to be introduced, while only 13 percent replied they would use separate surnames.
The need to respect the rights of minorities who want to use separate surnames after marriage is the main point of this issue.
In that sense, it is regrettable that the Supreme Court stated in the latest ruling that the right not to be forced to change surnames at the time of marriage is not part of personal rights guaranteed by the Constitution.
Five of the 15 justices in the Grand Bench, including all three female justices of the top court, expressed their opinions that the clause requiring married couples to use the same surname is unconstitutional. Three of these five justices pointed out that 96 percent of women change their surnames at the time of marriage because of the weakness of women's socioeconomic position and their positions in their families, reflecting inequality and the unfair balance of power between men and women. Society as a whole, particularly men, should take this statement seriously.
The Civil Code provision that bans women from remarrying for six months after divorce was also originally worked out during the Meiji era. It is highly questionable that the top court ruled at the time that banning remarriage for 100 days after divorce was rational while the ban for a period exceeding 100 days was unconstitutional.
This provision is based on the notion that if women were allowed to remarry immediately after divorce, it would be difficult to determine whether a child born shortly after remarriage is the child of the former husband or that of the new husband. This is why the provision was incorporated in the legislation. Also behind the ban was the opinion that women should not be allowed to remarry until it was confirmed that they were not pregnant with children of their former husbands.
However, it is now possible to identify the fathers of children because of the advancement of science. Therefore, reasons for forcing only women to wait over such a long period until they remarry have diminished.
In the latest ruling, many of the justices pointed out that there are not many cases in which it is difficult to identify the father of a child born to a woman who remarried within 100 days after divorce. If so, the provision that places more restrictions on women than necessary should be abolished.
A separate clause in the Civil Code stipulates that a child born within 300 days after the mother's divorce should be recognized as the former husband's child. Many women who gave birth to children while escaping from their husbands' violence choose not to submit birth notifications to avoid the application of this clause, as a result of which the children are not entered in their mothers' family registries. Discussions should be held on how to rectify this problem in reviewing the Civil Code.
The Diet bears a heavy responsibility for addressing these problems. It is difficult to reform family systems without considering tradition, customs and public awareness. However, many other countries have reviewed their legal provisions requiring married couples to use the same surname and those on the period when women were banned from remarrying after divorce, while Japan's Diet failed to hold debate on the proposal made by the Legislative Council for 19 years.
It should be kept in mind that the U.N. Committee on the Elimination of Discrimination against Women has repeatedly recommended that Japan eliminate these two provisions in the Civil Code. The legislative branch should hold debate on the issue while considering international trends.