Befristetes Wiederverheiratungsverbot für Frauen und Verbot der Führung getrennter Nachnamen für Ehepartner. Zu zwei neuen verfassungsrechtlichen Entscheidungen des Obersten Gerichtshofes in Japan

Abstract

In December 2015 the Japanese Supreme Court rendered two decisions on the consistency of provisions of family law with the Japanese Constitution. One was about Art. 733(1) CC, which provides for a six-month-period during which remarriage is prohibited, while the other dealt with Art. 750 CC, which requires spouses to choose a common surname. In the first case, the Supreme Court concluded that as far as the period exceeded 100 days the provision was unconstitutional. The aim of prohibiting remarriage during a certain period is to avoid a twofold marital paternity presumptions under Art. 772 CC in favour of the prior husband of the mother as well as in favour of the second husband of the mother. While this aim was justified, it was sufficient to prohibit remarriage for a period of 100 days in view of the time limits set out in Art. 772 CC. The part exceeding 100 days, however, gave rise to an unjustified infringement of the freedom of marriage. In reaction to this judgment, Art. 733 CC was recently amended reducing the period to 100 days and providing for further exceptions to the prohibition of remarriage.

In the second decision, the Supreme Court held that Art. 750 CC did not violate the constitution. The Supreme Court argued that, first, the freedom not to be forced to change one’s surname was not protected as part of the personality right under Art. 13 Japanese Constitution. Secondly, even though more than 96 per cent of married couples choose the man’s surname, Art. 750 was not to be seen as unjustly discriminating between men and women (cf. Art. 14(1) Japanese Constitution) as the provision itself was neutral. Further, the choice of a surname is based on an agreement between the spouses. Thirdly, Art. 750 CC only provides for a specific effect of marriage but did not stipulate any limitations on the conclusion of marriage as such. Therefore, there was no violation of freedom of marriage as provided for in Art. 24(1) Japanese Constitution. While Art. 750 CC was therefore not held to be unconstitutional, it still leaves room for discussion on how future rules on the surname of spouses could look like.