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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