Introduction　

Have you ever imagined a situation like this: you and your partner are talking about your surnames upon marriage, but either you or your partner have to change the surname. 

The current law in Japan requires a husband and wife to have the same surname upon marriage, meaning that one partner has to ask the other to change the surname (same surname system).

As such, couples in Japan cannot retain their own surnames upon marriage. When they wish to get married, they face the harsh choice between having one of the party change the surname, or giving up the legal marriage while maintaining their own surname. 

Moreover, surname change begets all kinds of harm. 

① Identity loss

A person’s name is deeply related to personal identity. By changing part of the name upon marriage, the old name will be used less often, and one can feel that they lose the selfhood that has been built up so far.

②  Career/social relation disruption 

In everyday life and during work, individuals use their names to accumulate their social trust and confidence from others, and cultivate social relations. If they change their names, the social relations and trusts could be disrupted.

③ Burden and insufficiency of using usual names and co-listed names 

Changing one’s name also comes with the burden of having to go through countless change procedures at public and financial institutions. These procedures are not uniformly stipulated by the law, and can vary depending on the institutions.  Even with the use of an old surname as a common name or co-listed name, this hurdle cannot be prevented. As it is quite common for a person to be asked to use the name on the family registry in administrative procedures, one can sometimes find oneself in a position where they need to use both surnames before and after marriage.

Along with such harms, about 95% of married couples choose the husband's last name.

If the couples do not want to change their names, it is very hard to have a conversation over this, and as the idea that “the wife should join the husband's household'' still persists, women are usually under great pressure when discussing this issue. 

Such harms are overwhelmingly imposed on women and become a heavy shackle for women to take more active roles in society. In this regard, the Japan Federation of Economic Organizations (Keidanren) recommended surnames for married couples to be considered as a top priority issue.

If couples have the option to continue to use their original family name (selective separate surnames system for married couples), couples will no longer have to face these impediments. 

The Grand Bench of the Japanese Supreme Court decided twice that the current same surname system for couples is constitutional, referring that it is a matter to be decided by the Congress. But the 12 plaintiffs have not yet given up and filed the third lawsuit in order to make the selective separate surname system for married couples a reality. 

▲Entering the Tokyo District Court for the third lawsuit.

　Stories of the plaintiffs　

Plaintiff Yukari Uchiyama

Plaintiffs Touko Kurokawa and Mitsuru Nezu

I met my current husband and wanted to live together as partners. However, I did not want to lose the name I had for many years, nor did I want to make the other partner think that they have to do the same, so I proposed a common-law marriage. As my husband listened to me, and started to imagine a society where men were effectively forced to change their surnames, he began to question the surname system. Having the same last name had nothing to do with family unity or happiness, so we decided to have a common-law marriage. 

We have been in a common-law marriage for nearly 17 years and have raised children, but there are almost no financial institutions that allow us to jointly take out a mortgage, the father of course does not have custody of the child, we are not each other's legal heirs, and we cannot even sign on the operation consent form for each other at hospitals. We always feel insecure because we don't know what will happen if something happens and we are not recognized as a married couple.

 

Plaintiff Megumi Ueda

I was a junior high school student in the early 1990s, when the option of separate surnames for married couples became a hot topic and there was a growing momentum for legal reform. I had the same question, “Why do so many women change their surnames when they get married?'' and began to think, “I don't want to change my name.'' I believed that the law would have changed by the time I became an adult, but nothing changed after more than 30 years. Getting married in 2013 makes me a directly related party to this issue. In 2015, on the day of the Supreme Court's decision in the first lawsuit, I learned about the constitutionality ruling online while on a business trip to Africa, and was so shocked that ringing in my ears and dizziness tormented me for about six months. I thought, “I can't wait any longer, I have to take action,'' so in the second lawsuit, I took charge of the secretariat of the organization that supported the lawsuit. However, even in the second lawsuit, the ruling was not found to be unconstitutional. I think that “this time, I want to change history,” and I decided to stand up. I will fight for the wishes of many people in Japan and abroad who are unable to decide their own surnames.

 

▲（From the left）Plainiff Mitsuru Nezu, Touko Kurokawa, Sachio Koike, Megumi Ueda and Kumi Nitta.

▲Plaintiff Mana Sato and Kiyotaka Nishi.

　Points in Dispute　

Plaintiffs' Claims:

(1) Status confirmation that both spouses can marry while retaining their original surnames.

(2)Confirmation of illegality (subsidiary request in case (1) is not admitted) of the State's failure to amend the law to allow each spouse to marry while maintaining their respective original surnames.

(3) State compensation: as the state fails to amend the law, the state shall compensate the plaintiffs for damages caused by the failure of recognizing the marriage of two individuals who keep their original surnames.

Legal Argument

1. Constitutional violation

This same surname system which does not allow separate surnames of spouses violates Article 13, and Article 24 (1), as well as Article 24(2) of the Japanese Constitution, which requires legislation to be enacted from the standpoint of individual dignity and the essential equality of the sexes. 

Names are inextricably connected to one's sense of self and identity, which constitute the foundation of individual dignity. As such, it falls under the umbrella of Article 13 of the Constitution, which protects rights and personal interests that are indispensable to personal existence.  

Moreover, Article 24(1) ought to be interpreted as guaranteeing free and equal decision-making in marriage. 

However, the current same surname system forces those who wish to retain their names before marriage to decide between either getting married by giving up their own names or giving up the legal marriage to keep their names. As such, it infringes on constitutionally-protected rights.  

In order to justify such a constraint on rights, the prohibition on married couples to use separate surnames without exceptions must satisfy the necessity and rationality test. However, as shown below, it does not fulfill these criteria.  

(1)  Irrelevance to the nature of marriage

According to the Supreme Court, the nature of marriage lies in “two sexes sincerely engaging in cultivating a shared life with the purpose of enduring a durable emotional and physical union.” Having the same surname is irrelevant in this regard and therefore lacks rationality.

⑵  The use of original family name as a usual name is insufficient

In order to mitigate the disadvantages caused by change of surname, there is an increasing use of the original family name as the usual name. For example, from November 2019, it is possible to record both names on the residence certificate and my number card, and from April 2021, the rules for passports have given greater leeway. 

However, the administrative procedure for many official documents is complicated when a person uses both registered and usual names, and even if both names are recorded, sometimes the maiden name is not recognized overseas. 

Moreover, everytime a problem occurs, one has to expose private details about their marriage to explain the situation. 

As a result, the use of usual names is greatly restrained and cannot eliminate all the disadvantages that come with having to change one’s name.

(3) Societal beliefs and change in awareness

As both men and women are getting married later in life, and more women are entering the workforce, the achievements and credibility one builds under their original surnames increase, and hence, there is a growing need to keep using original surnames.

Additionally, according to a survey regarding the selective separate surname system for married couples, 87% of young people were in favor of choosing separate surnames, out of which 91% were women. In January 2024, the Japan Business Federation (Keidanren) requested the government to introduce the selective separate surnames system for married couples.

In its prior judgment, the Supreme Court has cited certain reasons to justify the constitutionality of the same surname system such as the significance of using a single name for family unity, and the potential for debate over issues like children's surname and the method of registering in the family registry in cases of separate surnames. However, these reasons do not justify the complete denial of the option for separate surnames.

2. Violation of International Treaties

(1) Violation of the Convention on the Elimination of All Forms of Discrimination against Women

The Committee on the Elimination of Discrimination against Women has stated, in its General Recommendation No. 21 (1994), that when by law or custom a woman is obliged to change her name on marriage, she is denied the right to choose her name.

(2) Violation of the Covenant on on Civil and Political Rights

The Human Rights Committee adopted General Comment 19 in 1990, guaranteeing the “right of each spouse to retain the use of his or her original family name or to participate on an equal basis in the choice of a new family name.'' Further, in 2000, it adopted General Comment 28, which stated that it must ensure there is no gender discrimination with respect to these rights. 

Furthermore, the Committee on the Elimination of All Forms of Discrimination recommended the Japanese Government to rectify the same surname system for married couples in 2003, 2009 and 2016, as it deemed it discriminatory. The Human Rights Committee also cautioned the Japanese government in 2022 that the same surname system for married couples is discriminatory. To date, the Japanese Government has not complied.

　Summary of Prior Lawsuits　

In 1991, the Legislative Council deliberated on a review of the marriage system, including the same surname system for married couples, and in 1996, it submitted a draft proposition for revising the Civil Code. The draft stated as follows: “A married couple shall, at the time of their marriage, take the surname of the husband or wife, or their respective original surnames, as determined at the time of their marriage.” Yet, the draft was not approved by the ruling party's Legal Affairs Subcommittee and was not submitted to the Diet.

In the two previous lawsuits, the Court decided to leave the issue to the discretion of legislators. However, as of now, 30 years after the proposed outline was submitted, the selective married couple surname system has yet to be introduced.

First lawsuit

A first lawsuit was filed in 2011 to seek the right of couples to take separate surnames upon marriage. The plaintiffs were common-law couples and women who had changed their surnames due to legal marriage. They claimed state compensation and argued that there was a violation of Article 750 of the Civil Code, Articles 13, 14(1) and 24 of the Constitution, as well as the Convention on the Elimination of All Forms of Discrimination against Women. 

Although the Grand Bench of the Supreme Court ruled in 2015 that this system was constitutional, 5 out of 15 judges (3 of them women) expressed that forcing married couples to have the same surname is unconstitutional.

▲Briefing session after the decision of the Grand Bench of the Supreme Court

Second lawsuit

In a second lawsuit, the plaintiffs consisted of multiple common-law couples and Japanese couples who got married in New York state with separate surnames. The plaintiffs requested that ① domestic relations cases for adjudication accept the registration of marriages with separate surnames; ② state compensation based on legislative inaction; and ③ status confirmation that marriages overseas with separate surnames shall be notarized.

Regarding ①, the Supreme Court again held in a Grand Bench judgment in 2021 that it was constitutional, but 4 out of 15 judges (one of whom was a woman) expressed the opinion that it was unconstitutional.

▲Entering the district court of Hiroshima for the second lawsuit. 

　Message from the Lead Counsel　

Although in the first and second lawsuits courts regrettably found the system to be constitutional, a total of 10 Supreme Court justices have stated that the same surname system for married couples is unconstitutional, and the majority in the academia stand for unconstitutionality. It can be said that we accomplished a lot. 

The purpose of laws is to contribute to people's happiness, and besides, the Constitution does not tolerate laws that infringe on human rights. 

We will put forth our utmost effort to ensure this lawsuit is the final one. We greatly appreciate your continued support. 

Lead Counsel, Makiko Terahara

　Legal Counsel Team　

Makiko Terahara (Tokyo Omotesando Law and Accounting Office)
Tetsuya Miura (Asahi Law Office)
Toshihiko Noguchi (Ryoma Aoyama Lawyer Corporation)
Daisuke Igeta (Miyamura & Igeta Law Office)
Hidemi Otani (Hiroo Park Law Office)
Jun Orii (Yasaka Yoshitake Law Office)
Michiko Kameishi (Law Office Eclat Umeda)
Eriko Kawajiri (Hello Law Office)
Miharu Kawami (Kashinoki Sogo Law Office)
Masami Kikkata (Otani & Partners Law Office)
Izumi Kimura (Kitaarai/Aoki Law Office)
Fujiko Sakakibara (Senkawadori Law Office)
Tomoko Shioike (Yotsuya Kyodo Law Office)
Masumi Serizawa (Shinjuku Nishiguchi Law Office)
Hiroyuki Takeshita (Tsukushi Lawyer Corporation)
Keisuke Tanahashi (Frontier Law Office)
Motoki Taniguchi (Tokyo Public Law Office)
Tomoe Terabayashi (NTS General Lawyers Corporation Sapporo Office)
Yukiko Hayasaka (Senkawadori Law Office)
Emi Hisamichi (Waseda Legal Commons Law Office)
Yoko Fuchigami (Yasaka Mitake Law Office)
Kohei Matsuda (Yasaka Mitake Law Office)
Hiroko Mizota (Tokyo Bar Association)
Arata Yamazaki (Iris Law Office)
Akiko Yamada (Minami Odori Law Office) 

*For self-introductions of the attorneys, please see the website for the organization supporting this lawsuit.
https://bessei.net/lawyers/ 

　Use of Donations　

• Litigation expenses: Actual costs such as stamp fees and copying fees 

• Expert opinions by scholars: We plan to have experts such as constitutional scholars, civil law scholars, and administrative law scholars write the opinion. 

• Research expenses: We plan to carry out research that will involve ordering and translating a large number of documents, such as a public opinion survey regarding selective separate surnames of married couples and a survey of overseas legal systems regarding surnames. 

• Transportation expenses for lawyers, plaintiffs, etc.: We plan to use donations to cover transportation expenses for plaintiffs and defense team members who live far away from the court, as well as transportation expenses for experts and others to come to the court. 

• Event organization and public relations costs: We would like to use donations for events and public relations related to this trial. 

• Attorney's fees: After paying the above expenses, if there is any remaining amount, we would like to use it for the initial fee of the legal counsel's team, success fee, daily travel allowance, and personnel expenses of the organization supporting the lawsuit.

　Conclusion　

A selective separate surnames system for married couples would allow couples to choose the same surname or to continue using their respective original surnames. This would allow people who want to keep their original surname to do so, without producing a negative impact on society. Besides, we believe that the realization of the selective separate surnames system will increase the overall wellbeing of society. 

Both in 2015 and 2021, the Grand Bench of the Supreme Court has ruled that the system that forces married couples to have the same surname is constitutional. Although there are significant hurdles to overturn these judgments, we believe that if we are able to concretely substantiate changes in constitutional law theory and public awareness, we will certainly obtain a judgment of unconstitutionality.

We need your support to realize this goal. 

The actions of each and every person, no matter the form it takes (donations, attending court hearings, sharing content on social media), wield considerable power.

We will put forth our best efforts to make the selective separate surnames system a reality. 

▲Taken after the third lawsuit was filed in the Tokyo District Court.