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The Supreme Court on Wednesday gave mixed judgments on two century-old legal provisions linked to marriage, ruling that prohibiting women from remarrying for six months is unconstitutional but forcing married couples to use the same surname is constitutional.

Lawsuits have been filed over the two Civil Code articles, with plaintiffs arguing that they violate the Constitution’s guarantee of equality and individual dignity. The Supreme Court said in its ruling that a remarriage ban on women that exceeds 100 days is “an excessive restriction” and “contravenes the Constitution.”

The decisions were handed down at the top court’s Grand Bench led by Chief Justice Itsuro Terada. The ruling said it is “reasonable to use only one surname for family members” and the practice is “well-established in Japanese society.”

The top court also said, “Any disadvantage for women who changed their surname after marriage and felt their identities were lost can be mitigated by allowing the wider use of their maiden name.” The ruling urged parliament to reach a conclusion on the same surname rule and take necessary legislative measures.

Of the 15 justices at the Grand Bench, all of them found the remarriage ban on women violated the Constitution while 10 ruled the same surname rule is constitutional.

Both of the rules originate from the Civil Code that was enacted in 1898 and have been retained as moves in the past to revise them lost momentum, leaving Japan out of step with other countries.

But the latest ruling is expected to lead the Diet to take steps to revise Article 733 that sets a six-month period for women not to remarry, a clause that has been in place to avoid a dispute over the paternity of a child born within a certain period after a divorce and remarriage.

It is the 10th case in which the Supreme Court has judged that the country’s laws violate the postwar Constitution.

In the lawsuit on the remarriage clause filed in 2011, the plaintiff in her 30s, living in Okayama Prefecture, had sought 1.65 million yen ($13,600) in damages from the state, saying that she suffered mental pain as her freedom to marry was restricted.

The woman divorced her husband in March 2008 because of domestic violence. She was then forced to wait six months before being able to marry her current husband.

While rejecting her compensation claim, the top court said women should not have to wait more than 100 days to remarry to avoid confusion over the paternity of children conceived shortly before or after divorce.

“It was an excessive restriction even in 2008, given the progress in medical fields as well as science and technologies,” it said, apparently referring to the high accuracy of detecting pregnancy and DNA testing to specify a child’s parents.

On the clause on surnames, five male and female plaintiffs had sought a total of 6 million yen in state compensation over Article 750, which they claim constitutes “de facto discrimination against women” because it is customary for a wife to take her husband’s name, resulting in professional inconvenience and emotional distress.

The article has reflected 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.

Although the rules on the choice of surname were somewhat eased when the 1898 Civil Code was revised after World War II, Article 750 states “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.”

Calls for the system to be changed grew in the late 1980s as the number of working women increased significantly in Japan, with many women arguing that changing their surnames could interfere with their career development and workplace relationships.

Many companies and public offices in Japan now allow women employees to retain their maiden names at work. But only registered surnames may be used in official documents such as passports and health insurance cards that are used for identification.

The arguments of the plaintiffs in both lawsuits were rejected by district and high courts.

But Japan stands out when compared with other countries.

The Justice Ministry has said it could not find any other country that legally stipulates a married couple must use the same surname. It has also admitted it is rare to set a waiting period for women before they can remarry.

Germany had both clauses, but legal revisions in the 1990s have led the country to allow married couples to use separate surnames and to abolish the prohibition period for women’s remarriage.

In 1996, a Japanese Justice Ministry panel recommended a set of revisions to the Civil Code, including allowing married couples to use separate surnames and shortening the remarriage prohibition period to 100 days.

But the proposals were not implemented amid fierce resistance from conservative lawmakers who argued that the use of separate surnames would undermine family cohesion and traditional family values.

Japan has also been urged by the U.N. Committee on the Elimination of Discrimination against Women to address what it calls “discriminatory legal provisions” in the Civil Code, including the two issues in question.



Tag(s) : #Asia-Pacific

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