Introduction

Have you ever had a discussion with your partner about what your married name will be, and have you considered the choice you will have to make when you get married in the future: either change your name or ask your partner to change it for you?

Current law requires couples, without exception, that one spouse change their surname to the other spouse and forces married couples to have the same surname (same surname married couple system).

Under the same-surname married couple system, couples cannot get married while keeping their previous surnames. If one of them wants to get married, they have no choice but to change their surname, and if they want to keep their current surname, they are forced to make the difficult decision of giving up on legal marriage altogether.

However, changing your surname has many disadvantages.

1) Loss of identity

Names are deeply connected to an individual's personality, but when they change their surname, which is part of their name, upon marriage, some people feel as if they are losing a part of their old self as they are called less often by their previous name.

② Career break

In our social lives, people build their careers, trust and credibility in society, and relationships with their names. However, changing your surname can mean that you are separated from the career, trust, and relationships you have built up after marriage.

3) The burden of procedures for using common names/registering both names and their insufficient public effect

Changing your surname also comes with the burden of having to go through countless change procedures at public institutions and financial institutions. These burdens are not uniform by law, but vary depending on the institution you belong to.

Even if the use of maiden names or the use of both names is permitted, the disadvantages will not disappear.

There are many public institutions and other places where people are required to use their legal surname, and there are situations where they have to use both their married and new surnames.

Despite the disadvantages mentioned above, approximately 95% of couples who marry today choose to take the husband's surname.

When both partners do not want to change their name, discussions are extremely difficult, and with the idea that a wife should stay in her husband's home still deeply rooted, women in particular feel a great deal of pressure during discussions.

The current situation in which these disadvantages are overwhelmingly skewed towards women is a heavy hindrance to women at a time when women are becoming increasingly active in society, and the Japan Business Federation has called for consideration of the introduction of optional separate surnames for married couples as a top priority for promoting women's participation in the workforce.

If there was a system allowing both parties to continue using their maiden names after marriage (selective separate surnames for married couples), couples would no longer have to struggle over their married names.

The Supreme Court Grand Bench has twice ruled that the system of same surnames for married couples is constitutional, stating that it is something that should be decided by the Diet. However, this time 12 people have stepped up as plaintiffs and decided to file a third lawsuit in an effort to finally realize the option of separate surnames for married couples.

▲The third lawsuit: Plaintiffs and their lawyers entering the Tokyo District Court

How the plaintiffs came to power

Plaintiff Yukari Uchiyama

I have been using my nickname for about 25 years due to my legal marriage. However, due to the unwanted name change, I was forced to change my surname on all official documents that prove my existence, such as my driver's license, health insurance card, and passport, and my legal surname continued to be used on my bank account, insurance, etc. In the end, I was unable to use my nickname in important places, and instead, I was made to painfully aware on a daily basis that the birth name I wanted to use was not my real name, which caused me discomfort and a sense of loss.

For convenience, I have been married and divorced three times with the same partner and changed my name all three times, but for those who do not change their name, their daily lives and relationships with others do not change at all, so I cannot imagine the disadvantage that those who do change their name are facing. What else can this be but an imbalance?

More than 30 years have passed without any change. I could not bear to see my children's generation facing the same injustice, so I mustered up the courage to speak out.

Plaintiffs: Touko Kurokawa and Mitsuru Nezu

Plaintiff Megumi Ueda

(From left) Plaintiffs Mitsuru Nezu, Touko Kurokawa, Yukio Koike, Megumi Ueda, and Kumi Nitta

▲Plaintiffs Mana Sato and Kiyotaka Nishi

Issues at issue

What the plaintiffs are seeking

(1) Status confirmation : Confirmation that both spouses are in a position to marry while maintaining their pre-marriage surnames

(2) Confirmation of illegality : (Preliminary claim in case (1) is not granted) Confirmation that it is illegal for the government to not amend the law and therefore not allow the plaintiffs to marry while keeping their pre-marital surnames

3) Claim for State Compensation : Compensation for damages suffered by the plaintiffs as a result of the state failing to amend the law and thereby denying them the right to marry while keeping both spouses’ maiden names.

Legal basis

1. Unconstitutional

A system of married couples having the same surname, which does not allow for the exception of having different surnames, violates Article 13 and Article 24, paragraph 1 of the Constitution, as well as Article 24, paragraph 2, which calls for legislation based on the dignity of the individual and the essential equality of the sexes.

The interests of personal identity and social recognition associated with a name form the basis of individual dignity and are guaranteed by Article 13 of the Constitution, which guarantees the interests essential to the existence of the personal person.

Furthermore, Article 24, paragraph 1 of the Constitution can be said to guarantee free and equal decision-making regarding marriage.

However, the system of single surnames for married couples forces those who wish to keep their maiden name to choose between giving up their surname and getting married, or giving up marriage and keeping their surname, thereby restricting a right guaranteed by the Constitution.

In order to restrict such rights, there must be a necessity and rationality in not allowing the exception of married couples having different surnames, but this is also not recognized as follows.

1) Irrelevance to the essence of marriage

The essence of marriage is "two people of the sexes living together with a sincere intention for the purpose of a permanent mental and physical union," but whether or not they have the same surname is irrelevant to this intention and is irrational.

⑵Insufficient use of maiden names/nicknames

Recently, in order to mitigate the disadvantages of changing one's name, the number of situations in which one can use one's maiden name as a common name has been increasing. For example, in November 2019, it became possible to list one's maiden name on one's resident registration card and My Number card, and in April 2021, the requirements for listing one's maiden name on a passport were relaxed.

However, when it comes to the details to be recorded on official documents, the procedures can be complicated because there is a difference between the surname on the family register and the common name, and even if you are able to list your maiden name, it may not be recognized overseas. Every time confusion occurs, you have to disclose and explain the private fact that you changed your name upon marriage.

As such, the use of a common name has various limitations and drawbacks. Using a common name does not eliminate the disadvantages of changing your surname.

(3) Changes in social conditions and attitudes

As both men and women are getting married later in life and more women are entering the workforce, the achievements and trust built up under one's married name become more important, making it increasingly necessary to keep one's name.

In addition, a survey on optional separate surnames for married couples showed that 87% of young people were in favor of it. Among them, 91% of young women were in favor. In January 2024, the Japan Business Federation called on the government to introduce a system of optional separate surnames for married couples.

In addition, the Supreme Court has cited as reasons why a system of married couples having the same surname is constitutional that there is a certain significance in deciding on one name for a family, and that in the case of married couples having different surnames, there is room for discussion regarding the determination of children's surnames and the way in which they are recorded in the family register, etc., but this is not a reason to completely reject the option of married couples having different 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, in its 1994 General Recommendation 21, stated that forcing a woman to change her maiden name is a denial of her "right to choose her own surname."

⑵ Violation of the International Covenant on Civil and Political Rights

In 1990, the Human Rights Committee adopted General Comment No. 19, which states that every person should have the right to retain the use of their maiden surname or to participate on an equal basis in the selection of a new surname.

In 2000, the UN adopted General Comment 28, which stated that it is necessary to ensure that there is no discrimination on the basis of sex with regard to these rights.

Furthermore, the Committee on the Elimination of Discrimination against Women has recommended to the Japanese government three times, in 2003, 2009, and 2016, and the Human Rights Committee has recommended in 2022 that the Japanese government correct the same-surname system for married couples, stating that it is discriminatory.

The story so far

In 1991, the Legislative Council reviewed and deliberated the marriage system, including the requirement that married couples have the same surname, and in 1996 submitted a draft outline of a revision to the Civil Code, which included the provision that "Married couples shall take the surname of the husband or wife, or the surname of each spouse before marriage, as determined at the time of marriage."

However, the draft outline did not receive approval from the ruling party's Legal Affairs Committee and was not submitted to the Diet.

The Supreme Court has held two Grand Bench hearings on the matter, but has decided to leave it to the legislature to decide, and even now, some 30 years after the outline was submitted, the optional system of separate surnames for married couples has still not been introduced.

The first selective separate surnames lawsuit

In 2011, we filed our first lawsuit, aiming to realize the option of separate surnames for married couples.

In the first lawsuit, common-law couples and women who had changed their surnames in legal marriages were plaintiffs, and in the lawsuit seeking state compensation, they claimed that Article 750 of the Civil Code violated Article 13 of the Constitution, Article 14, paragraph 1, and Article 24 of the Constitution, as well as the Convention on the Elimination of All Forms of Discrimination against Women.

Although a Supreme Court Grand Bench ruling in 2015 ruled that it was constitutional, five of the 15 judges (three of whom were women) expressed the opinion that forcing married couples to have the same surname is unconstitutional.

At a briefing on the Supreme Court Grand Bench decision

The second selective separate surnames lawsuit

In the second lawsuit, several common-law couples and a Japanese couple who had married in New York State while maintaining different surnames were plaintiffs, and they filed 1) a domestic relations ruling seeking acceptance of their separate surname marriage registration, 2) a lawsuit seeking compensation from the state based on legislative inaction, and 3) a lawsuit seeking confirmation of their status to have their marriage relationship notarized for their separate surname marriage overseas.

Regarding ①, the Supreme Court re-examined the matter in a Grand Bench hearing in 2021 and ruled it constitutional, but four out of the 15 judges (one of whom was a woman) expressed the opinion that it was unconstitutional.

▲The second lawsuit was heard at the Hiroshima District Court.

Message from the lawyer in charge

Unfortunately, the first and second lawsuits were ruled constitutional, but there were many gains, such as a total of 10 Supreme Court Justices stating that the system of same surnames for married couples is unconstitutional, and the majority opinion in academic circles that it is unconstitutional.

The legal system exists to ensure the happiness of all people, and the Constitution does not tolerate a legal system that violates human rights.

We will do everything in our power to ensure that this is our final lawsuit, so we appreciate your support.

Head of defense team: Makiko Terahara

Introducing the Lawyers

Makiko Terahara (Tokyo Omotesando Legal and Accounting Office)
Tetsuya Miura (Asahi Law Office)
Toshihiko Noguchi (Ryoma Aoyama Law Office)
Daisuke Igeta (Miyamura & Igeta Law Office)
Hidemi Otani (Hiroo Park Law Office)
Jun Orii (Mitake Yasaka Law Office)
Michiko Kameishi (Eclat Umeda Law Office)
Eriko Kawajiri (Hello Law Office)
Mika Kawami (Kashinoki General Law Office)
Masami Tachibana (Otani & Partners Law Office)
Izumi Kimura (Kitaarai & Aoki Law Office)
Fujiko Sakakibara (Senkawa Street Law Office)
Tomoko Shio (Yotsuya Joint Law Office)
Masumi Serizawa (Shinjuku West Exit Law Office)
Hiromasa Takeshita (Tsukushi Law Firm)
Keisuke Tanahashi (Frontier Law Offices)
Taniguchi, Taiki (Tokyo Public Law Office)
Chie Terabayashi (NTS Associates, Sapporo Office)
Yukiko Hayasaka (Senkawa Street Law Office)
Eimi Hisamichi (Waseda Legal Commons Law Office)
Yoko Fuchigami (Mitake Yasaka Law Office)
Kohei Matsuda (Mitake Yasaka Law Office)
Hiroko Mizota (Tokyo Bar Association)
Arata Yamazaki (Iris Law Office)
Akiko Yamada (Minami Odori Law Office)

*For introductions of the legal team members, please see the website of the Association Supporting Separate Surname Lawsuits.
https://bessei.net/lawyers/

Use of funds

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

• Cost of written opinions requested from scholars : We plan to have experts such as constitutional law scholars, civil law scholars, and administrative law scholars write written opinions.

• Research costs : We plan to conduct research that will involve ordering and translating a large number of documents, such as a public opinion survey on optional separate surnames for married couples and a study of foreign laws regarding surnames.

• Travel expenses for legal team, plaintiffs, etc .: Donations will be used to cover travel expenses for plaintiffs and legal team members who live far from the court when they appear in court, as well as travel expenses for experts to come to the court.

• Event hosting and PR costs : We would like to use donations to hold events and cover PR costs related to this trial.

• Attorney's fees, etc .: If there is any money remaining after paying the above expenses, we would like to use it for the attorneys' retainer fees, success fees, travel allowances, and personnel costs for the group supporting the separate surname lawsuit.

in conclusion

As we have discussed so far, optional separate surnames for married couples means that in addition to the option of couples taking the same surname, both partners have the option of continuing to use their pre-married surnames.

Couples who wish to have the same surname will be able to do so as before, even under the optional separate surnames system.

Selective separate surnames for married couples would realize the wishes of couples who wish to continue using their maiden names, while not causing any major disadvantages to society. If selective separate surnames for married couples were realized, it could be said that the happiness of society as a whole would increase.

The Supreme Court Grand Bench has ruled twice, in 2015 and 2021, that the system of forcing married couples to have the same surname is constitutional. There is a high hurdle to overturning a constitutional ruling, but I believe that if we can concretely prove changes in constitutional theory and changes in societal attitudes, we will definitely be able to obtain a ruling that the law is unconstitutional.

To achieve this, we need your strong support.

Each individual's actions, such as donating, attending hearings, and spreading the word on social media, will make a big difference.

We will continue to work hard to realize the option of separate surnames for married couples, so we appreciate your support.

▲Photo taken after the third lawsuit was filed in the Tokyo District Court