Japan’s Supreme Court has upheld a law from 1898 that requires married couples to have the same last name—a piece of legislation that critics said was discriminatory. At the same time, the court struck down another law, also from the Meiji Era, that barred women from remarrying within six months of a divorce.
Same Last Name
The case was brought by three separate women, and a couple in a civil partnership. They argued the law infringed on personal dignity and the freedom to marry.
The law itself requires Japanese couples to choose a single last name, but does not specify to whom that name should belong. Still, The Japan Times points out that in the past 40 years, 96 percent of Japanese couples have opted for the husband’s name.
The court upheld the law in a 10-5 decision. Presiding Justice Itsuro Terada said the practice is “deeply rooted in our society” and “enables people to identify themselves as part of a family in the eyes of others.” Terada noted that nothing prevents a woman from using her maiden name on a daily basis, but he acknowledged giving it up does disadvantage women in certain ways, including professionally.
The court’s decision upheld the ruling of two lower courts. Public opinion in Japan is split on the issue. Opponents of the law viewed it as an infringement of the fundamental rights of women. Conservatives view it as, in the words of The Japan Times, “a central pillar of the family unit.”
But as the BBC points out: “Women in Japan were traditionally able to retain their maiden names after marriage, until 1898 when the law was enacted as part of a feudal family system where all women and children came under control of the male head of the household. The system was abolished in 1948—but the surname law has been retained.”
Kyoko Tsukamoto, one of the plaintiffs in the case, wept at a news conference in Tokyo.
“I’m sad, I’m in pain,” she said. “My name is something I can’t give up.”
Tsukamoto is her maiden name, but she uses her husband’s last name on legal documents.
Masayuki Tanamura, a professor of family law at Waseda University, told The Japan Times the Supreme Court’s ruling was “anachronistic.” He urged the Diet, Japan’s parliament, to revise the law.
In the U.S., a New York Times analysis found that the practice of retaining one’s maiden name is on the rise again after declining in the 1980s or 1990s. It has, in fact, surpassed the figures from the 1970s, the Times pointed out.
From the time that the equal rights activist Lucy Stone became famous for keeping her name when she married in 1855, maiden names have been politically charged. In the 1970s — when state laws still required a woman to use her husband’s name to vote, do banking or get a passport — keeping one’s maiden name became a tenet of the women’s movement.
In the other decision, the Japanese court struck down as unconstitutional the law preventing women from getting remarried six months after a divorce. Judge Terada called the measure an “excessive restriction” on women’s freedom of marriage, and the ruling suggested the waiting period for remarriage be shortened to 100 days.
The decision obliges the legislature to revise the law. The Justice Ministry told its regional officers to permit women to marry 100 days after a divorce even before the law is amended, Justice Minister Mitsuhide Iwaki said.
NHK, the Japanese broadcaster, reported that supporters of the law said it “provides time to establish paternity if the woman is pregnant.” But its critics called it outdated.
The case was brought by a divorced woman from Okayama Prefecture. The court rejected the woman’s demand for compensation of about $13,500.