100-day Unfreedom of Marriage

The Supreme Court made two important decisions on marriage of the people. One was banning on remarriage of woman for 100 days from divorce. Another was maintaining the institution of requiring same surname for a married couple. While Civil Code, legislated in Meiji era, gives a couple a choice for one of their two surnames, 100-day ban does not make any sense in terms of gender equality instituted in Constitution of Japan. The decisions reflected a reality that Constitution was ruled by Civil Code.

Article 733 of Civil Code determines that a divorced woman cannot remarry for six months for avoiding trouble on biological identification of her new baby’s father between previous and new husbands. Supreme Court decided to shorten the period of marriage ban from six months to 100 days.

The reason was quite ridiculous. Civil Code has provisions that define a baby born within 300 days from the divorce as a child of ex-husband and a baby born after 200 days or more as a child of new husband. To determine baby’s father, the Court required all women 100 days of unmarried period, with which Civil Code cannot determine the father.

That decision was based on a notion that a baby would be born only by married couple, which concept had once existed in ancient Japan. Now, there are a various cases of unmarried sex or unmarried baby. Advanced biological technology can determine a baby’s father so easily and precisely that identification of father by birthday becomes significantly obsolete. If Supreme Court abides by the Constitution, it had to abolish the provision of unmarried period in Civil Code.

Although having a sense of insufficiency in light of human rights, constitutionality of choosing same surname can stand. “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,” says Article 750 of Civil Code. A married woman has a right to choose her original surname with consultation with her husband. If she liked her original surname, she can socially use it in her office or other local communities. It is not a matter of gender equality, but of dignity of individual who has to abandon her or his surname. Supreme Court found a value of maintaining traditional sense of integration of married couple through surname.

But, judicial branch has to take note the fact that some couples decide unmarried family institution, because of the mandate for choosing one surname. It is necessary to reform legal system for couples not to have disadvantage stemming from choosing different surnames.