Plaintiffs lost in the lawsuit on May 29 in the Tokyo District Court to accuse of responsibilities of the legislature which would not introduce a civil status system to allow a married couple to use separate family names. The complainants demanded compensation. This is the first ruling on the issue, but it does not correspond to the current realities and exposes an old aspect of judiciary.


COURT DECISION MUST REFLECT SOCIAL NEEDS


A group of five residents of Tokyo, Toyama and Kyoto, which includes men and women, sued the state, contending that it is unconstitutional that the government would not amend a civil code which does not allow a married couple to use separate family names. The plaintiffs demanded a total of six million Yen of compensation. The focal point lied in Article 750 of Civil Code that specifies 'a married couple shall have a single family name of a husband or a wife': was the description in favor or against the Constitution?


The court ruling says; it is not hard to suppose that some inconveniences will occur, for instance, ruptures of human relations and professional carrier if one's family name changes, but the Constitution does not assure the right that each of the married couple can use a family name before marriage. The court rejected the plaintiffs' demand.


The judgment continues to say that 'a family name constitutes part of personality of an individual' but that 'it is not clear that Article 13, which stipulates respect of individuals, contains the said right in a guaranteed manner. As for Article 24, which specifies on equality of genders, the court says 'the provision does not ensure the right that a married couple may use separate family names'.


More People Advocate Married Couple May Have Separate Names


According to a survey conducted two years ago by the Ministry of Health, Labor and Welfare, wives employ a family name of their husbands when marrying and the rate reaches an extent of 96%. Disadvantage due to a change of family name is concentrated on the side of women. Women who disfavor this system use dual family names or lead a married life without registering matrimony. But such a woman, or a couple, faces several inconveniences, limitations and demerits and suffers from the system. The number of these people increases.


The plaintiffs claimed of unconstitutionality of articles of civil code; consciousness on a family and a married life and their realities have changed, which undermines a habit to compel a couple to use a single family name. Meanwhile, the state argues that in accordance with the social norm, an introduction of a separate family name system is not necessarily indispensable.


Does the social opinion agree to the government's argument? According to a survey held last December by the Cabinet Office, approximately 30% of the contestants replied in favor of the introduction and, among women in their 20s and 30s, 50% of them answered that the articles of civil code could be revised and 20%, replied No, as unnecessary. More people in the younger generation support the idea that a married couple can use separate family names.


Advice from the UN Human Right Council


The Legislative Council of the Ministry of Justice replied in 1996 on the bill to revise the civil code by which a married couple might use separate family names. But opposition was so strong in the ruling Liberal Democratic Party that the bill was shelved in submission to the Diet. The succeeding government of the Democratic Party of Japan, which was enthusiastic in introducing a new civil system and actually had raised the demand in their election Manifesto, failed to present the bill to the Diet.


The UN Committee on Abolition of Discrimination against Women has issued advice, which says that it is unresolved to compel a change of family name at the time of marriage, and proposed to revise civil code several times. Many countries in Europe and Asia employ a selective system to allow a married couple to use separate family names.


Formation of family, or family structure, is diverse today along women's advancement into the society. Under the circumstances a civil system should reflect realities. The said plaintiffs have appealed the case to the high court. The judiciary stands at a historic phase to respect social realities.


June 18, 2013