Wednesday, November 4, 2015

Supreme Court to examine marriage rules dubbed unfair, unconstitutional (Japan)

BY MASAMI ITO
The Supreme Court on Wednesday heard a case arguing that forcing married couples to choose one surname, and prohibiting women from remarrying for six months after a divorce, are unconstitutional.

It is expected to rule on the constitutionality of the two issues by the end of the year.

At a news conference following the hearing, one of the plaintiffs said she just wants to have the right to choose her name.

“I want to live as Kyoko Tsukamoto and I want to die as Kyoko Tsukamoto,” she said. “My name is something that I have to stand my ground on. It is my life itself.”


The 80-year-old former school teacher feels so strongly about the matter that she goes by the name Tsukamoto even though that is not her legal surname. To comply with pressure from an employer she took her husband’s.

Article 750 of the Civil Law stipulates that a married couple must choose either the wife’s or the husband’s surname. Although it allows couples to choose which name to take, more than 96 percent opt for the husband’s family name.

Meanwhile, Article 733 of the Civil Law states that a woman can only remarry six months after a divorce. This aims to avoid confusion over paternity and corresponds to a separate clause stipulating that a baby born within 300 days of divorce is the child of the previous husband, while one born at least 200 days after the second marriage will be considered that of the new husband.

The six-month rule dates from the Meiji Era. It has been in place since 1898.

In 1996, the Justice Ministry’s Legislative Council proposed amendments to the Civil Law so that couples can choose whether to share a surname, and that the six-month period be shortened to 100 days. Nearly two decades later, the clauses have yet to be changed.

The U.N. Committee on the Elimination of Discrimination against Women has repeatedly criticized Japan over its “discriminatory” clauses and urged it to take immediate action.

Experts on family law say lawmakers have neglected their responsibility to revise the Civil Law to the point that the Supreme Court has had to intervene.

Many conservative lawmakers — especially those in the ruling Liberal Democratic Party — strongly oppose revisions, especially those that would allow separate surnames, which they say would affect the sense of unity of the family.

Kaori Oguni, one of the plaintiffs, noted that there have been times when Japan came close to allowing people to choose separate surnames, but that the issue would then get lost in politics.

“We had to file this lawsuit because we couldn’t expect lawmakers to do anything about it,” said Oguni, which is also not her legal surname.

Two previous attempts by plaintiffs to resolve the matter ended in failure.

Five people, including Tsukamoto, filed a lawsuit against the government in 2011, seeking ¥6 million in damages. They argued that the Civil Law violates their constitutional rights of respect for individual dignity and gender equality. The Tokyo District Court and Tokyo High Court both dismissed the case.

For Tsukamoto, winning the right to assume a different surname from her husband has been her wish for the past 50 years.

The couple originally agreed to a common-law marriage to enable both of them to keep their surnames. Like many other women who want to keep their maiden names, Tsukamoto got married and then divorced every time she had a child, to ensure that the children were not born out of wedlock.

She finally gave in and got legally married for good after urging from her boss, the principal of the high school where she worked.

In the second case, a domestic violence victim in her 30s from Okayama Prefecture filed a lawsuit against the government in 2011 seeking ¥1.65 million in damages, arguing that the six-month rule goes against the Constitution’s “equality under the law.” Both the district and high courts dismissed her case as well.

The woman’s lawyer, Tomoshi Sakka, on Wednesday made an appearance at the Supreme Court on her behalf, telling reporters that the law limits the human rights of women.

“I hope that the Supreme Court will hand down a ruling to change the six-month rule that was set in the Meiji Era and will establish a judicial precedent that matches the current, 21st century,” Sakka said.

Sakka’s client finalized her divorce in 2008 and began a relationship with another man in the separation period, during which she became pregnant with his child. The Civil Law not only denied her marriage until six months after divorce, it initially recognized the child as that of her abusive ex-husband.


“The defendant has been through so much with her divorce, her child’s birth and her remarriage, none of which was her fault. She has suffered so much because of the inflexibility of the law,” Sakka said.

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