The Supreme Court has decided to dismiss the plaintiff's appeal in two cases in Tokyo and Hiroshima where it was disputed whether the provisions of the Civil Code that do not allow married couples to marry with different surnames violate the Constitution. The decision was finalized.
Meanwhile, two of the five judges said that the provisions are unconstitutional.
Three pairs of de facto married couples in Tokyo and women living in Hiroshima City are disadvantaged because they cannot get married due to the provisions of the Civil Code and the Family Register Act, which do not allow married couples to have different surnames. He claimed to be in breach of the constitution and sought compensation from the state.
The Hiroshima High Court and the Tokyo High Court of the 2nd trial said, "Which surname the couple will give is left to the free choice by consultation, and it cannot be said that the provisions unreasonably restrict marriage." Following the trial, he decided that he would not violate the Constitution and dismissed the complaint.
The plaintiffs had appealed, but Judge Michiharu Hayashi of the Supreme Court's Third Small Court decided to dismiss by the 23rd, and the ruling that it was not unconstitutional was confirmed.
Meanwhile, two of the five judges said the provisions were unconstitutional.
Regarding the surnames of married couples, the Supreme Court of Japan has ruled in 2015 and last year that the provisions do not violate the Constitution.
Opinions of two judges "regulations are unconstitutional"
The plaintiff's decision to dismiss the appeal was a unanimous conclusion of the five judges, two of whom stated that "the provisions violate freedom of marriage and violate the Constitution."
Judge Eriko Watanabe, a former lawyer, said, "The rules force people who want to get married to choose between changing their surnames or giving up on their marriage, and it is clear that they will limit their freedom to marry. I do not deny that it helps to identify the family and foster a sense of unity, but it is unlikely that it will be the basis for justifying the practical restrictions. Given that there is a big difference between change and de facto forcedness, and that decision-making will affect the way we live afterwards, giving us the opportunity to make choices is a respect for the dignity of the individual. It is hard to admit that it has objective rationality, and it violates Article 24 of the Constitution. "
In addition, Judge Katsuya Uga, a scholar, said at the time of the decision of the Great Court last year, "It is unreasonable to impose the restriction that marriage is not legally permitted unless the couple's surnames are the same. Contrary to the purpose of the constitution that guarantees the equality of married couples, it is an unfair national intervention. "