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Court rejects damages suit over same-surname rule after marriage

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But Presiding Judge Tetsuro Nakayoshi said the Civil Code provision stipulating a single surname for a husband and wife is constitutional and it is reasonable for the family register law not to allow separate surnames.

Right, because any Japanese person that marries a foreigner just isn't right in the head, so it's ok for them to use both, as "gaijin" can't be considered Japanese anyway!

13 ( +17 / -4 )

don't get married? What will be the surname of your sons and daughters? How about legal documents? What is wrong with our society?

-1 ( +7 / -8 )

Opposition parties have repeatedly submitted bills to amend the Civil Code, but they have been blocked by conservative members of the ruling Liberal Democratic Party.

The courts continue to prove themselves just as conservative. As always in Japan, a bunch of older men are deciding the boundaries for how women should live their lives (*and some men)

7 ( +10 / -3 )

Opposition parties have repeatedly submitted bills to amend the Civil Code, but they have been blocked by conservative members of the ruling Liberal Democratic Party.

Alas, the law is the law. And, to be honest, as much as I think this law is a relic of the 19th century, it is hard to imagine a constitutional reason for courts to overrule it.

The law is not discriminatory, in that couples who marry can choose either surname. In other words, it doesn't discriminate against females.

The truth is that the way to fix this is to change the law. And that requires overriding the LDP. And, by the way, some of the strongest opponents to changing these sorts of laws are conservative women in the LDP.

The whole family law / civil code needs to be completely rewritten, as it is literally stuck in the 19th century.

1 ( +7 / -6 )

The law is not discriminatory, in that couples who marry can choose either surname. In other words, it doesn't discriminate against females.

It is so very discriminatory in that any Japanese person who marries a foreigner is BY LAW allowed to use either name legally.

Something Japanese "only" couples themselves can not do.

If that is not discriminatory, then please tell me what is!

13 ( +14 / -1 )

Politicians are upholding an ideal, they yearn for. Reality is quite different and that's when the disconnect offends the politicians, they are not relevant in society and retreat into outdated ideology further distancing themselves from society.

7 ( +8 / -1 )

Aono adopted his wife's surname, Nishibata, when they married in 2001, but for business purposes he uses his former surname with which he said he had built trust and status.

He adopted wife's surname when married. He now wants to use his former name and the Japanese judge does not allow it.

U.N. Committee on the Elimination of Discrimination against Women has urged the Japanese government to amend the Civil Code

Is this really "Discrimination against Women" case? As it is often the case with UN human rights org, they have no real knowledge of local facts; they apparently does not know that Japan allows to adopt a surname of either side of the couple.

-7 ( +2 / -9 )

But Presiding Judge Tetsuro Nakayoshi said the Civil Code provision stipulating a single surname for a husband and wife is constitutional and it is reasonable for the family register law not to allow separate surnames.

Been married for many years in Japan. My wife has been allowed to keep her Japanese surname and me, my American surname on our family registry.

-6 ( +0 / -6 )

It is so very discriminatory in that any Japanese person who marries a foreigner is BY LAW allowed to use either name legally.

Something Japanese "only" couples themselves can not do.

If that is not discriminatory, then please tell me what is!

That is actually very easy.

Foreigners do not actually count when it comes to Family Law / Civil Code and when it comes to family registers.

As you know full well, a foreigner does not and cannot have a stand-alone Family Registry. They have no jikka and no koseki tohon.

If a Japanese marries a foreigner, there is no family register for the foreigner involved. As far as Japan is concerned, the foreigner is just a "footnote" to the family register for the Japanese.

Which is why a Japanese that marries a foreigner can keep their surname if they wish and, as far as Japan is concerned, the two partners can have separate surnames.

You are arguing on discrimination because both are humans. However, Japanese family law does not contemplate / incorporate foreigners into the system.

NOW, if foreigners were fully incorporated into the Japanese family register system and had their own family register and THEN marriages between a foreigners and Japanese were treated differently from marriages between two Japanese citizens, then you could argue for discrimination.

Look, the current family registry system does not really allow for foreigner. It doesn't allow for many things, actually. And it condones a number of things that are, frankly, horrific in this day and age, such as distinguishing children that are born out of wedlock.

But no court is going to overturn the entire legal framework. Rather, they would note that the proper way forward is for the laws / codes to be changed.

Which, actually, is the proper way forward.

3 ( +6 / -3 )

Is this really "Discrimination against Women" case? As it is often the case with UN human rights org, they have no real knowledge of local facts; they apparently does not know that Japan allows to adopt a surname of either side of the couple.

Seems to me you also have no real knowledge of local reality. One, this is not that uncommon here, believe it or not, Japan has one of the highest adoption rates in the world, over 80,000 a year. This guy, was adopted into his wives family, if the wording in the article is to be believed, He "adopted" his wives surname, if he was not "adopted", it should plainly state that he either "assumed" or "took" his wive's surname. The nuance is very important legally as well.

Aono adopted his wife's surname, Nishibata, when they married in 2001, but for business purposes he uses his former surname with which he said he had built trust and status.

However, that number is very misleading, as the overwhelming majority of adoptions, are men who are "adopted" into their wives families, and take their wives names, for the purpose of continuance of the family name.

In this case however, the man in question, built a reputation and a "name" for himself, not his wives name, and because tradition dictates that wives take the husbands name, he brought the case to court here, and lost.

https://en.wikipedia.org/wiki/Japanese_adult_adoption#Modern_practice

6 ( +6 / -0 )

Foreigners do not actually count when it comes to Family Law / Civil Code and when it comes to family registers.

Which by definition is discriminatory.

5 ( +6 / -1 )

He adopted wife's surname when married. He now wants to use his former name

Sounds like he never stopped using it. He wants legal recognition of it.

5 ( +5 / -0 )

I have a mukoyoushi uncle and am well aware of the practice. I actually think it's pretty cool if it's something you choose as opposed to the state or your parents force upon you. But I also have a good friend who wanted to get married but her parents insisted the guy she was dating take their name. They were both only (i.e. eldest) children so you can imagine his own parents' resistance. The end result was no marriage, which according to the dinosaurs running this place is a major concern. Less marriage, less children, dwindling worker pool to prop up an inverted demographic triangle.

The fact remains that the overwhelming majority (94%) of marriages in Japan result in women taking their husband's name. B/C some men are affected or gaijin-Ninhonjin marriages are excluded doesn't change that fact--that's discrimination, period. I do agree with zones that a legislative change would be ideal but since we live in what's essentially a one-party state and that party is held captive by the most reactionary of officials and their patrons...

Not to mention that most people in Japan didn't even have surnames until after the Meiji Restoration.

5 ( +6 / -1 )

However, Japanese family law does not contemplate / incorporate foreigners into the system.

This alone is one of the most discriminatory things Japanese do.

6 ( +6 / -0 )

Foreigners do not actually count when it comes to Family Law / Civil Code and when it comes to family registers.

Which by definition is discriminatory.

I understand what you are saying, but every country in the world is based upon the idea that certain things are just for citizens and not for non-citizens.

Look at voting. Non-citizens are not allowed to vote in elections. Theoretically that is discriminatory, but that is a framework that is virtually universal.

So, the idea that a legal framework only applies to citizens in certain respects can be argued as discriminatory, but courts leave it to the people and the legislatures to update the laws to reflect the policy preferences of the people.

-2 ( +1 / -3 )

Look at voting. Non-citizens are not allowed to vote in elections. Theoretically that is discriminatory

Not even theoretically - it IS discriminatory. The question is whether or not that discrimination is justified. Most people in the world (including myself) do agree that it is justified.

I think you made a good point - there are times most of us agree that discrimination is acceptable. So we need to rethink the idea of discrimination inherently being wrong, and rather figure out when/where we think it is acceptable and where it isn't.

6 ( +7 / -1 )

@zones2surf. But no court is going to overturn the entire legal framework. Rather, they would note that the proper way forward is for the laws / codes to be changed. Which, actually, is the proper way forward.

Not exactly. Common law courts are allowed to make recommendations and revise the law, without legislative intervention, and adapt to new trends in political, legal and social philosophy. Japan has elements of Common law in the system so the court actually has the ability to revise the law. I also wonder why the courts do not want to follow the changes in society. After all the court are public servants.

https://www.daiichihoki.co.jp/store/upload/pdf/025965_pub.pdf

2 ( +3 / -1 )

I think you made a good point - there are times most of us agree that discrimination is acceptable. So we need to rethink the idea of discrimination inherently being wrong, and rather figure out when/where we think it is acceptable and where it isn't.

A valid observation.

What I was trying to drive at is that "discrimination" in a negative legal sense has come to be viewed in terms of sex / gender, race, and so forth.

Discrimination based on being a citizen / non-citizen has not, historically, been viewed as discrimination in the same legal manner. In other words, it has not been determined to be a type of discrimination that should be eliminated.

So, a court could look at the Japanese family law system and say that it isn't discriminatory with respect to males vs. females in terms of a single family name because either surname can be adopted.

Doesn't mean I agree with the framework, just seeing how the logic works for Japanese courts.

0 ( +1 / -1 )

My partner and I have different surnames. Life goes on as usual. Even if gay marriage is allowed, I wouldn’t be allowed to vote.

2 ( +4 / -2 )

“the law violates the constitutional right to equality and the pursuit of happiness”

It certainly does! However, this is Japan and the law only effects the constitutional rights of women. Need I say anymore?

4 ( +5 / -1 )

Go abroad and get remarried changing names as you wish. Coming home they’ll have to recognize it.

-3 ( +1 / -4 )

 they apparently does not know that Japan allows to adopt a surname of either side of the couple.

well its actually worse because while it doesnt discriminate against sexes it discriminates against all Japanese who wish to get married as theyre forced to choose which name they want to keep.

2 ( +3 / -1 )

It just seems like overreach for the government to be able to tell people they can't choose their own name.

4 ( +5 / -1 )

 the use of a single surname for family members is an established practice in Japanese society

This hardly impacts the fabric of Japanese society, the judge needs to get a grip. I'm pretty sure many things used to be established practices in Japan that are now archaic, as should this. They'll drag their feet with this for years. Another ruling that also needs to change is holding dual nationality.

1 ( +2 / -1 )

Primitive stuff for sure, something that should NOT be that hard to make a change in a law......but TIJ...…..

3 ( +3 / -0 )

When I was teaching, I always told students to "think about what is not in a report." There's something very imporant that is left out of this article.

You only need to use your joint legal surname in a very limited set of circumstances. Otherwise, you can use any name you want to.

When I naturalised, I took my wife's surname and I became part of her family register much like a mukoshi. That joint surname gets used on my DL, passport, tax related documents, and medical records. Everywhere else, I use my European birth name.

When I changed my name, I asked my bank (the largest in Japan) if I needed to change my name. I was told, "Only if you want to do so."

At the time my name changed, I asked my employers including the two most prestigious private universities if I could continue to use my European birth name. "Sure, fill it out this form." The very simple form is basically a declaration. "My legal name is X but I want to be known as Y." That's all.

In Japan, you don't need to use your legal name when you stand for election. Entertainers who turn politicians use their stage names. Women use their maiden names. Adopted men use their birth names.

Without this information, the court ruling looks much more restrictive than it is in practice.

-1 ( +2 / -3 )

"Because it is my name!

Because I cannot have another in my life! Because I lie and sign myself to lies! Because I am not worth the dust on the feet of them that hang! How may I live without my name? I have given you my soul; leave me my name!"

The Crucible - Arthur Miller

5 ( +5 / -0 )

It is so very discriminatory in that any Japanese person who marries a foreigner is BY LAW allowed to use either name legally.

Japan has no authority over foreigner's name, that's why. 

Even if gay marriage is allowed, I wouldn’t be allowed to vote.

You would at your Embassy.

-7 ( +0 / -7 )

"the constitutional right to equality and the pursuit of happiness" are foreign concepts in Japan, and were introduced in the Constitution that was adopted at the close of the war. In fact, from the government's point of view neither "equality" nor "happiness" have ever figured at all in their conception of the lives of the citizens. These two things are one of the reasons that the LDP is trying so hard to revise the constitution - they seek to replace them with "obligation to the state as a Japanese citizen"

3 ( +4 / -1 )

My partner and I have different surnames. Life goes on as usual. Even if gay marriage is allowed, I wouldn’t be allowed to vote.

Yes you would, if you took the final step of taking Japanese citizenship!

3 ( +3 / -0 )

the use of a single surname for family members is an established practice in Japanese society

Not really, it's a rather "new" concept in the long history of Japan. As noted by another poster here, the use of surnames only came into common practice after the Meiji restoration.

Go abroad and get remarried changing names as you wish. Coming home they’ll have to recognize it.

No they wont, as the Japanese citizen in this case would not be able to register their name as being married because same sex marriage is not legal in Japan.

The "Japanese" in this case could possibly adopt their partner, as a way of getting around inheritance laws, and such, but they would not be recognized as being married.

3 ( +4 / -1 )

Politicians are from an earlier past, as are the judges. Can't change their regressive ideas. Best to live your lives in happiness and have nothing to do with them.

3 ( +4 / -1 )

Even if gay marriage is allowed, I wouldn’t be allowed to vote.

Your marital status does not determine whether you can vote. If you are a citizen, you can vote. There is no voter registration in Japan and legal challenges pertaining to the right of citizens to vote are unknown.

These two things are one of the reasons that the LDP is trying so hard to revise the constitution - they seek to replace them with "obligation to the state as a Japanese citizen"

Not just that. They stole the idea from JFK who in his 1961 inaugural address said, "'Ask not what your country can do for you – ask what you can do for your country."

Shameless ripoff.

0 ( +1 / -1 )

Japanese deontology is like this - similar to the governmental claim of “one nationality, one passport”!

So I guess they would also claim “One family, one family name” ... not that I agree, because the logic is trash.

2 ( +2 / -0 )

My wife didnt change her surname when we married (and i didnt adopt her surname), as it was mendokusai and because katakana surnames might affect her work prospects in the future. Lucky us? or maybe not... Because now that we have children, they must take her surname. And its not possible to register my children in my home country with my surname either. So now, my son wont get to carry on the very rare surname we have. Also we cant get family cards on our credit cards or sign up for family memberships because my surnane is different to hers. We are looking into changing her (and our kids) surnames to mine now, but it is a PITA

1 ( +1 / -0 )

Now this. I’m still struggling with my official registered hanko not accepted in the next prefecture. My name doesn’t have kanji. I can’t change my name to my partners Japanese name.

1 ( +1 / -0 )

My wife has my family name, which she would also choose. But I often call her by her own family name. Another difference between us. All of my names, first, middle and last are kanji characters but not so for my wife. Her first name is in kanji while her use of my family name is in katakana. My registered hanko is also kanji.

0 ( +0 / -0 )

Because now that we have children, they must take her surname. And its not possible to register my children in my home country with my surname either.

Funny, my children have two passports, one for Japan, with their mother's surname, and one from my country of origin, with my former surname.

Depends upon the country I guess!

2 ( +2 / -0 )

No one should be forced to change their name. You should be able to choose whatever name you want. I'm glad I wasn't obliged to change mine when I married.

1 ( +1 / -0 )

I can’t change my name to my partners Japanese name.

You can, but the process is going to cost a lot of time and money. The easiest way would be to go to your home country, change your name, get a new passport, come back and register it, but odds are they will not register it in kanji, but katakana.

1 ( +1 / -0 )

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