Japan Top Court Rules Forcing Couples to Share Surname is Constitutional

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Couples and their defense team who had appealed on a case regarding requests to legally marry while keeping their separate surnames walk to the Supreme Court Wednesday. | KYODO

The top court on Wednesday again ruled that legal provisions forcing married couples to use the same surname are constitutional, upholding a Supreme Court judgment from 2015.

The latest decision on a more than century-old provision based on the Civil Code and the family register law dismissed requests filed by three couples in 2018 to keep their separate surnames after local governments refused to accept their marriage registrations.

The decision handed down by presiding Justice Naoto Otani at the Supreme Court’s Grand Bench, composed of all 15 justices, came at a time when families have become more diverse and public opinion on surname sharing has shifted in Japan.

The ruling said the top court has “found no points that should be changed from the decision in 2015, even as it takes into account the changes in the society and awareness of people.”

Among the 15 justices, four said prohibiting separate surnames was unconstitutional, compared with five who expressed the same view in the 2015 ruling.

The latest decision again said the surname issue is a matter that should be discussed in the Diet rather than in the courts.

Japan is the only country in the world known to have a law forcing married couples to share a surname, according to the Justice Ministry. The United Nations Committee for the Elimination of Discrimination against Women has also recommended that Japan change the system.

The three couples, all in common-law relationships, had appealed to the Supreme Court after the Tokyo Family Court and its Tachikawa branch dismissed their requests to legally marry while keeping their separate surnames in 2019. The Tokyo High Court turned down their appeals in 2020.

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Article 750 of the Civil Code stipulates “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.” The provision applies only to Japanese couples as foreigners married under the country’s system are able to keep their family names.

Critics say the provision originating from the 1898 Civil Code reflects the traditional concept of marriage as an arrangement involving families rather than individuals. Usually, a woman left her family to become part of her husband’s family.

As of 2015, 96% of married couples in Japan used the husband’s surname, according to government data.

The family register law stipulates a couple must determine a shared surname to have their marriage registration accepted.

The 2015 top court ruling said the practice of using the same surname was “well-established in society” and there is no gender inequality in the system. But among 15 justices, five, including all three women, said prohibiting separate surnames was unconstitutional, citing the disadvantages involved in changing a name.

The court acknowledged individuals who change their surnames, in most cases women, could “feel their identities lost” and face other disadvantages in terms of social credibility, but said people are not forbidden to go by their maiden names in the current system.

Many companies and public offices in Japan now allow female employees to retain their maiden names at work. The government has been slowly expanding the scope of official documents used for identification that show maiden names in addition to registered surnames.

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The 2015 ruling also said the same surname issue is a matter that should be discussed in parliament, rather than seeking a judicial settlement.

Discussions in parliament, however, have not progressed much as members of the ruling Liberal Democratic Party are sharply divided over the issue.

Conservatives who seek to maintain traditional values are opposed to allowing couples to choose separate surnames, arguing the move may have an impact on family unity as well as children. Both those against and in favor of the change have formed groups to push the discussions further.

But the party’s working group set up earlier this year to seek common ground gave up last week on drafting a specific proposal ahead of a House of Representatives election to be held later this year.

Jun Azumi, the Diet affairs chief of the main opposition Constitutional Democratic Party of Japan, called the top court decision “outdated” and told reporters that his party will promise voters during the next Lower House election to “respond to the matter in a manner fitting with the times.”

In December, the government failed to include a commitment to allowing different surnames in its basic gender equality promotion policy following fierce opposition by conservative LDP members.

A Kyodo News survey conducted in March and April showed a total of 60% of respondents in Japan said married couples should be able to have separate surnames, while 38% said they are against the idea.

The JapanTimes

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