INTRODUCTION

On 16 December 2015, the Supreme Court of Japan made two important and impactful decisions relating to marriage law. In the first case, the Court held that the provisions of Article 733 of the Japanese Civil Code, which prescribes a waiting period of six months for women only as a requirement of remarriage, violated the equality principle of the Japanese Constitution. The Court held that the waiting period of 100 days would be constitutional, however. Many scholars hold that the waiting period for a woman to remarry should be totally abolished.

In the second case, the Court held that Article 750 of the Civil Code, which prescribes the mandatory common family name for the married couple as an effect of a marriage, does not violate the equality of husband and wife. In Japan about 96 per cent of married couples choose the name of the husband as a common family name. Many wives must bear the practical and emotional burden as the result of the change of their name. Most of the Supreme Court justices, 10 of 15 justices, held that the common family name system has been established for a long time in Japanese society and that a common family name is rational for a natural and basic unit of society. With a common family name, one can recognise oneself as a member of a family. Furthermore, a legitimate child can have the same name as both parents.

Japan's ruling party (LDP) and conservative people believe that the common family name is one of the beautiful traditions of Japanese society, a tradition worthy of preserving, although such a mandatory common family name is seldom seen in foreign countries. They also point out especially that a different name of a husband (father) and a wife (mother) could inflict harm upon their children. Many Japanese scholars, however, have strong opinions that both the husband and wife should be able to preserve their names as they wish, so that a common family name should not be mandatory