The “Same Surname Rule” & the Remarriage Moratorium for Women

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The Supreme Court recently stopped short of declaring unconstitutional a century-old civil code forcing spouses to adopt a single surname. But the court ruled that a separate law banning female divorcees from remarrying within 6 months of their divorce is unconstitutional.

Both rulings relate to family laws dating from the Meiji Era (1868-1912). Campaigners who brought the pair of lawsuits alleged discrimination against women.

Same surname rule

A requirement to have the same surname after marriage is a strongly felt issue in Japan. On one hand, opponents call it an infringement of an individual’s fundamental rights while conservatives regard a shared name as a central pillar of the family unit.

One suit filed in 2011 involved a statute requiring Japanese spouses to choose which single family name (the husband’s or the wife’s) to adopt in legally registering their marriage.

Although the law gives couples the freedom to decide which surname to adopt, studies in show more that 96% of Japanese couples have opted for the husband’s name. The claim was that this potentially causes emotional distress and difficulties in the workplace to the wife where she was known by her maiden name.

Plaintiffs argued this amounts to gender discrimination. They said being forced to choose a single surname infringes on personal dignity and the right to freedom of marriage. Moreover, the UN Committee on the Elimination of Discrimination against Women has repeatedly urged the government to take “immediate action” to amend the law.

Even today, resistance to the idea of spouses retaining separate names remains particularly strong among lawmakers within the ruling Liberal Democratic Party. Despite Prime Minister Shinzo Abe’s push for “womenomics,” or the greater inclusion of women in society and economic life. The party opposes allowing separate surnames on the grounds that it would destroy “the sense of family unity.”

Public opinion is divided, too. A survey conducted by the Cabinet Office in 2012 showed that respondents were split, with 35% in favour of allowing separate surnames and 36% against.

Re-marriage moratorium

In a second lawsuit filed by a female divorcee challenged a statute prohibiting women from remarrying within 6 months of their divorce. She sought ¥1.65 million in compensation for emotional suffering. The 6 month ban was originally introduced in the Meiji period to decide the legal paternity of children born shortly after a divorce. Critics call the measure outdated in an era of early pregnancy detection and of DNA sequencing.

Debate over whether to revamp the Civil Code flared up in the 1990s following Japan’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women in 1985. In response to public calls for change, a legislative panel of the Justice Ministry proposed amendments in 1996 to legalize having separate surnames and to shorten the six-month ban on remarriage. It provoked fierce opposition from conservative lawmakers and the proposals were shelved, defeating what would have been the biggest postwar overhaul of family laws.

About Jon Sparks

Jon is a Japanese specialist with 2 decades of experience spanning:

• Board and Management experience in both Japanese and foreign companies
• Leading or participating in forming over 20 partnerships or acquisitions
• Representing foreign companies as their senior representative or advisor in Japan

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