The Law Requiring Women to Take Their Husband's Surname Has Been Abolished: Decision of the Turkish Constitutional Court dated 22.02.2023
Introduction
This study examines the decision ("Decision") of the Turkish Constitutional Court ("CC") dated 22.02.2023, published in the Official Gazette on April 28, 2023, which abolished the first sentence of Article 187 of the Turkish Civil Code numbered 4721 ("TCC"), which obliges a woman to take her husband's surname upon marriage. The Decision is considered an important step towards achieving gender equality.[1]
Provision Requested to be Annulled
The application to the Constitutional Court requested the annulment of Article 187 of the TCC on the grounds that it is unconstitutional. Article 187 of the TCC reads as follows:
“A woman takes her husband's surname upon marriage; however, she can also use her previous surname before her husband's surname by submitting a written application to the marriage officer or later to the civil registry. A woman who previously used two surnames can only benefit from this right for one surname.”
The provision in question was requested to be annulled on the grounds that it violates Article 2 titled "Qualities of the Republic," Article 10 titled "Equality before the Law," Article 17 protecting personal immunity and guaranteeing material and spiritual existence, Article 20 regulating the privacy of private life, Article 90 titled "Approval of International Treaties," and Article 153 titled "Decisions of the Constitutional Court" of the Constitution.
The subject of the application is the decision of the Istanbul 8th Family Court, which concluded that the rule requested to be annulled violates the Constitution, in a case filed with the request to allow the woman to use her birthname.
Constitutional Court Review on the Merits
In the Decision, the CC first explained the first sentence of Article 187 of the TCC. According to that, a woman can keep her surname before marriage only if she requests and uses it before her husband's surname. Therefore, a woman cannot use her previous surname that she used to carry before marriage alone after getting married.
i. Former Civil Code and TCC Regulations
In the Decision, the CC referred to the prior to the entry into force of the TCC and stated that the position of the spouses in the union of marriage was not regulated equally during this period.
With the TCC, the position of spouses in marriage are re-regulated within the scope of the principle of equality. The CC referred to the preamble of the TCC. It mentioned the provisions and practices abandoned by the former Civil Code numbered 743. For example, TCC eliminated the superiority given to the man's place of residence in determining the location of the marriage application with Article 134, the obligation for each spouse to obtain the other's permission in choosing a profession or occupation with Article 192, and abandoned the approach that gave superiority to the man in terms of custody as long as the marriage continues with Article 263. The CC evaluated these regulations as legal developments aimed at implementing gender equality.
However, the CC also drew attention to the fact that no changes were made to the provision regarding women's surnames in the former Civil Code numbered 743 and that the former provision was directly included in the TCC.
ii. Principle of Equality
The CC evaluated the situation where a woman cannot use her previous surname after marriage within the framework of the principle of equality protected by Article 10 of the Constitution.
According to the CC, the principle of equality means equality in a legal sense, and its purpose is to ensure that individuals in the same status are subject to the same procedures under the law, and to prevent discrimination and privilege. However, the CC refer to its precedents and notes that equality before the law does not mean that everyone will be subject to the same rule, as the specific characteristics of the case may require different rules and practices for certain individuals or groups without violating the principle of equality.
According to the CC, after examining whether there is different treatment of different persons, it should be examined whether the different treatment is based on an objective and reasonable basis. If there is a reasonable and objective basis, then it is necessary to assess the proportionality of the different treatment.
iii. Right to Privacy
The CC also evaluated the issue of a woman preserving her previous surname after marriage within the scope of the right to privacy.
Article 1 of Surname Law numbered 2525 imposes the obligation to bear a surname. Article 20 of the Constitution regulates the right of everyone has the right to demand respect for their private life. The right to name and surname, which becomes an integral part of an individual's identity and is closely associated with their life, is also part of the right to privacy. Therefore, the right to request changes in information such as gender, birth registration, and identity details is within the scope of the right to privacy, similar to the right to name and surname. In this context, carrying a surname is not only an obligation but also a right. Indeed, the European Court of Human Rights ("ECtHR") recognizes the right to name and surname under Article 8 of the European Convention on Human Rights ("ECHR") titled "Right to Respect for Private and Family Life."
iv. Constitutional Amendments
The CC also drew attention to the amendments in the constitutional provisions regarding gender equality.
In 2001, Article 41 of the Constitution was amended by Article 17 of Law No. 4709. With this amendment, the provision stating that the family is the foundation of Turkish society was supplemented with the phrase “based on equality between spouses.” The justification of this article includes the aim of ensuring gender equality.
Article 10 of the Constitution was amended in 2004 with the first paragraph of Article 1 of Law No. 5170, which states that women and men have equal rights and that the state is responsible for implementing this equality. The justification of this article also refers to international treaties that prohibit gender discrimination. It is stated that the amendment in Article 10 does not violate the principle of equality if it allows measures that provide certain advantages in favor of the gender that is not adequately represented.
The second paragraph added to Article 10 of the Constitution in 2004 with Article 1 of Law No. 5170 states that women and men have equal rights and that the state is obliged to realize this equality. The justification of this article also refers to international treaties that prohibit gender discrimination. It is stated that the amendment in Article 10 does not violate the principle of equality if it allows measures that provide certain advantages in favor of the gender that is not adequately represented.
Furthermore, Article 5 of Protocol No. 7 of the ECHR specifically regulates the principle of equality between spouses.[2] This Protocol was approved and put into effect by the Council of Ministers’ decision dated 28.3.2016 and numbered 2016/8717 which was published in the Official Gazette dated 28 March 2016 numbered 29678.[3]
The CC stated that these constitutional amendments emphasize the strong need to achieve gender equality and highlight the significance of the principle of equality in the relationship between spouses.
v. Precedents of ECtHR, CC and Court of Cassation
Finally, the CC referred to the judgments of the ECtHR, itself and the Court of Cassation.
The CC referred to the decision of ECtHR in the case of Ünal Tekeli vs. Turkey. In this decision, the ECtHR ruled that not allowing a woman to use her previous surname before marriage violates Article 14 of the ECHR titled “Prohibition of Discrimination” in the context of Article 8 of the ECHR.
Furthermore, international conventions that foresee equal rights for men and women regarding their surnames after marriage contain different provisions than the regulations of Turkish domestic law. This situation needs to be evaluated within the framework of Article 90 of the Constitution. In this regard, the CC referred to its own precedents which rule that the application of Article 187 of the TCC to the applicants contradicts the principle of legality and constitutes a violation.[4]
The Court of Cassation also establishes in its precedents that the situation where a woman cannot use her previous surname after marriage, is contrary to Article 14 of ECHR in connection with Article 8 of the ECHR. According to the Court of Cassation, there is no need for a valid reason for a woman to be able to use her previous surname after marriage.[5]
In the Decision, it was emphasized that the above-mentioned judicial decisions are not sufficient to implement the principle of equality before the law, and it is stated that the principle of state respecting human rights requires all state organs and administrative authorities to fulfill their duties in this regard, which is confirmed by Article 10 of the Constitution. The CC underlined the enjoyment of equal rights by women and men must first be guaranteed by law, which is the primary source of law, and that this guarantee must be developed through administrative practices. In this context, the CC states that the precedents of the ECtHR, CC, and Court of Cassation are not sufficient because despite the existence of these precedents, women could not use their previous surname before marriage due to rules that continues to be applied by administrative authorities, without burdening them with an additional obligation.
Evaluation
In light of all this information, the CC has concluded that women and men are found to be comparably similar in terms of using their previous surnames after marriage. The CC considered there is a different treatment for similarly situated spouses based on gender due to the fact that a man can use his maiden name alone after marriage while a woman can only use her maiden name in front of her husband's surname.
The CC acknowledges the public interest in preventing confusion in civil records and establishing lineage. However, considering that individuals' identification numbers are available and technology can be utilized in civil registration processes, the CC does not accept that the only way to achieve the mentioned public interest is for women to use their surname before their spouse's surname.
According to the CC, although it can be argued that being referred to with the same surname contributes to fulfilling the societal function of the family, this contribution cannot be achieved solely by a woman taking her husband’s surname. It is also possible for one of the spouses to adopt the surname of the other or to determine a common surname other than their previous surnames. The CC also expresses that it is difficult to claim that a common surname is an essential element of family ties and that family ties cannot be preserved without a common surname.
The CC states that different treatment between women and men regarding their surnames after marriage cannot be considered a reasonable justification for the purpose of preserving and strengthening family ties. The CC understands that there is no reason other than preserving family ties for women not being able to use their previous surname before marriage. In this regard, the CC decided to annul Article 187 of the TCC.
Dissenting Opinion
The decision is made by a majority vote in the CC. Two dissenting opinions are written against the Decision.
The first dissenting opinion argues that prioritizing one of the spouses regarding the surname does not violate the principle of equality as it considers the discretion of the legislator regarding family surnames, the preservation of family unity and integrity, and the consideration of the public interest. It is also stated in this dissenting opinion that allowing women to use their previous surname before their spouse's surname maintains a fair balance between personality rights and public interest. It is emphasized that a woman taking her spouse's surname does not rely on gender discrimination, and the fact that the legislator exercised discretion in favor of men regarding family surnames does not violate the principle of equality.
In the second dissenting opinion, it is stated that the question of which spouse's surname will be used can be determined by the parties based on their roles in society. In this context, it is also mentioned that it is possible to allow the spouses to choose one of their surnames or to have a common surname other than their previous surnames. It is emphasized that such matters should be decided by the legislative body based on societal demands and that it is not appropriate for judicial decisions to guide social demands. Furthermore, it is stated in this dissenting opinion that the violation decisions made by judicial bodies regarding surnames are not compatible with the Constitution due to highlighting the individual's material and spiritual existence and rights in society. Finally, it is noted that the issue of a woman adopting her spouse's surname does not rely on gender discrimination.
Conclusion
In light of the explanations above, the CC concluded with a majority of votes that the principle of equality is violated since the different treatment between men and women in terms of women not being able to use their surname before marriage alone is not based on an objective and reasonable basis. In this context, the CC rules that the provision stipulated in Article 187 of the TCC is contrary to Article 10 of the Constitution. Therefore, no examination has been conducted by the CC regarding Articles 2, 17, 20, 90, and 135 of the Constitution.
Furthermore, due to the annulment of the challenged provision, the CC also decides to annul the second sentence of Article 187 of the TCC in accordance with Article 43, paragraph 4 of Law numbered 6216.
The Decision will come into effect nine months after its publication in the Official Gazette, starting from April 28, 2023.
- For the full text of the decision, please see https://www.resmigazete.gov.tr/eskiler/2023/04/20230428-9.pdf
- For the European Convention on Human Rights and its Protocols, see.https://www.echr.coe.int/documents/convention_tur.pdf
- For the Official Gazette, see. https://www.resmigazete.gov.tr/eskiler/2016/04/20160408.htm
- See. Sevim Akat Eşki App. No. 2013/ 2187, 19/12/2013 D.: https://kararlarbilgibankasi.anayasa.gov.tr/BB/2013/2187 ; Gülsüm Genç B. App. No. 2013/4439, 6.3.2014 D.: https://kararlarbilgibankasi.anayasa.gov.tr/BB/2013/4439 ; Neşe Aslanbay Akbıyık App. No.: 2014/5836, 16/4/2015 D.: https://kararlarbilgibankasi.anayasa.gov.tr/BB/2014/5836 )
- Court of Cassation General Assembly of Civil Chambers 2014/889 E., 2015/2011 K. 30.09.2015: https://www.lexpera.com.tr/ictihat/yargitay/hukuk-genel-kurulu-e-2014-889-k-2015-2011-t-30-9-2015
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