Japan's top court puts priority on family

Japan's top court puts priority on family
The Supreme Court Grand Bench where the ruling was issued on Wednesday.
PHOTO: The Japan News/ANN

The Supreme Court handed down two closely watched rulings Wednesday that emphasised the importance of family.

The 15 justices ruled that the Civil Code ban on the use of different surnames by married couples is constitutional, a decision respecting the role of the Diet and the code that has shaped the nation. Japan's top court also decided that prohibiting remarriage by women for six months after they divorce is unconstitutional, a change that rectifies an obvious inequality that has arisen due to the changing times.

"The concept of married couples having the same surname has become established in society," Wednesday's ruling said. "It is significant that when the individuals who form a family share the same surname, they truly feel that they are a member of that family."

The plaintiffs in this case had insisted that forcing married couples to share a surname "effectively amounted to gender inequality because, in practice, women take their husband's name in 96 per cent of cases." However, the Supreme Court can decide that a law is unconstitutional only if it generates an irrationality that directly violates what the Constitution requires.

Article 750 of the Civil Code 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," so formally it does not force only women to change their name. The argument put forward by the plaintiffs did not clear the high hurdle required to have the top court rule this law was unconstitutional.

The majority opinion presented by 10 justices, including Chief Justice Itsuro Terada, reflected the view that issues of family on which the values of the public are divided do not lend themselves well to judicial decisions. This is because it is difficult for the court, which essentially handles individual cases, to give consideration to factors including a future vision of the nation and the social impact brought about by the system.

However, the Grand Bench did not give the same surname system an unfettered seal of approval. Use of a maiden name at work and other places is widespread in Japan, but many of these married people often feel inconvenienced because certificates of residence and other legal documents must use the surname given in their family register. In most cases, it is women who suffer this inconvenience.

Three of the five justices who deemed this law to be unconstitutional on Wednesday were women. When explaining the current situation in which it is predominantly women who must change their name to match their spouse's, the justices said, "We can't say this system is based on gender equality."

2nd example since WWII

The Supreme Court ruled that the six-month ban on remarriage for women was unconstitutional, just the second time since World War II it has made such a decision regarding a Civil Code provision.

The ruling attached importance to major changes in society such as technological advances in the medical and scientific fields. The former civil law, which came into force in 1898, stipulated a six-month ban because it normally takes that long for it to become visibly obvious that a woman is pregnant. However, modern methods can determine whether a woman is pregnant much more quickly.

In December 1995, the Supreme Court ruled that it was "rational" to impose a 180-day ban on remarriage for women. This week's ruling overturned this position, saying, "Due to the increasing cases of divorce and remarriage, and as women tend to get married at a later age, there are growing demands for a loosening on the restrictions placed on remarriage."

The nation's top court has changed its stance on a Civil Code provision before. In July 1995, the Grand Bench ruled that a provision stating that a child born out of wedlock was entitled to only half the inheritance awarded to a legitimate child was constitutional. However, in September 2013, the bench decided this provision was unconstitutional and invalid due to changes in public awareness and an increase in the number of single mothers.

"The belief that every child should be respected as an individual has become established," the court ruled.

These recent rulings clearly indicate the Supreme Court is willing to declare a provision unconstitutional if the Civil Code becomes unable to respond to changes in family structures and creates situations that violate the principle of fairness.

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