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major reform of Japanese Civil Law, which has been criticized as partly out of
date.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.
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