Constitution v. Civil Law

Supreme Court of Japan is going to examine constitutionality of two issues on freedom of marriage. One is different family name of married couple and another is restriction on remarriage for women. This may lead to a major reform of Japanese Civil Law, which has been criticized as partly out of date. This could be a showdown between the 68 years old Constitution and 117 years old Civil Law.

Article 750 of Civil Law determines that a married couple chooses one of their family names to share. It was common for married couples in Japan to maintain one of their family and it was ordinarily husband who succeeded the name. This tradition has gradually been changed and a number of couples preferred different names for various reasons. Most motivation of not sharing one family name is psychological disappointment in registration of residence with spouse’s family name.

Article 24 of Constitution of Japan requires the people to maintain marriage based on equal rights for each of the couple. Five complaints assert that provision of Civil Law violates the Constitution which guarantees sexual equality and dignity of an individual. It is women who are mostly suffer from the demand of Civil Law, feeling discomfort in her name.

Restriction of remarriage for women is broadly recognized as ridiculous. Article 733 of Civil Law says that a woman cannot remarry before passing six months from former marriage. This provision is not applied to a man. The reason is simple: the divorced woman may unconsciously carry fetus. Civil Law also assumes that a baby born within 300 days from divorce is former husband’s child and one born after 200 days or more is current husband’s child.

For many people, the restriction is nothing but discrimination. Everyone knows that technology can detect who’s child is the fetus without waiting for six months from divorce. The female plaintiff argues that Civil Law violates Article 14 of the Constitution, which guarantees people’s equality under law. However, both the First Court and Appeal Court decided the provision of Civil Law was constitutional to avoid conflict over birth.

The biggest obstacle is conservative legislators mainly in Liberal Democratic Party. They argue that amending the provisions of Civil Law about marriage will destroy traditional value of marriage in Japan. LDP’s draft of constitutional amendment in 2012 includes a phrase that family is respected as natural and fundamental unit in society. But is it not formation of marriage that destroys family, but inappropriate social policies on the people.