A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

Article 16.1(a)
Marriage and Family Life
Marriage
X1 and X2 (Appellants) v Government <strong>of</strong> Japan (Respondent)
The Hanreijihou, No. 1406 pp. 3-8
Hiroshima High Court
28 November 1991
International <strong>Law</strong>s and Instruments Considered
CEDAW 1979, Preamble, Articles 2, 15, 16;
Civil Code, Articles 733, 772;
Constitution <strong>of</strong> Japan 1949, Articles 13, 14, 15, 16, 24;
International Covenant on Civil and Political Rights 1966, Article 23;
State Redress <strong>Law</strong>, Article 1.
This case considered whether Section 733 <strong>of</strong> the Civil Code, which prohibits women
from remarrying for 180 days after a divorce, violates the Constitution <strong>of</strong> Japan
1949 (“the Constitution”) and international instruments such as CEDAW and the
International Covenant on Civil and Political Rights 1966 [ “ICCPR”].
The appellants, X1 and X2, began living together in a de facto marriage immediately
after X1, on 1 December 1988, obtained a divorce from her former husband and obtained
custody <strong>of</strong> her two children. On 9 December 1988, X2 applied for permission to adopt
the two children <strong>of</strong> X1. On 7 March 1989, X1 and X2 submitted <strong>of</strong>ficial notification <strong>of</strong>
their marriage. They were unable to register their marriage because Article 733 <strong>of</strong> the
Civil Code prohibited women from remarrying for 180 days after obtaining a divorce. The
Family Court also denied X2 the right to adopt X1’s children during the 180 day waiting
period on the basis that it was contrary to the welfare <strong>of</strong> the children since the marriage
might never be formalised. X1 and X2 began court proceedings on the basis that Article
733 <strong>of</strong> the Civil Code was unconstitutional as it discriminated against women. Their claim
was dismissed in the District Court and they subsequently appealed to the High Court.
The appellants argued in the High Court that the purpose <strong>of</strong> Article 733 was unreasonable
as it was not established to ensure clarity in paternity but rather was based on Confucian
19
CEDAW
Japan