The Constitutional Court has decided that the first sentence of Article 187 of the Turkish Civil Code dated 22/11/2001 and numbered 4721 is unconstitutional and annulled. this change was made on 22/2/2023, in the file numbered E.2022/155.
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The rule was that a married woman would take her husband’s surname, but with a written application to the marriage officer or the civil registry office, she could use her previous surname in front of her husband’s surname, but that she couldn’t use her previous surname alone after marriage.
In summary, in the application decision mentiones the fact that the surname constitutes a part of the identity and personality of the woman, that the restriction on the right of the woman to use the surname before marriage with the contested rule does not have a legitimate purpose, that while it is possible for the man to use the surname that he gained at birth throughout his life, the fact that the same right is not granted to the woman is incompatible with the principle of equality.
It has been argued that the rule is unconstitutional by stating that it has given infringement decisions due to the different treatment in question, that there are also violation decisions given by the Constitutional Court in the field of individual application, but the unaltered rule continues to be applied by the administration, which violates the principle of bindingness of the Constitutional Court’s decisions.
Carrying the surname, which is a part of the personality, is not only an obligation, but also a right under Article 20 of the Constitution. As a matter of fact, the ECHR accepted that the aforementioned right falls within the scope of Article 8 of the European Convention on Human Rights. With the constitutional amendments made during the process, it was strongly emphasized that in order to be able to talk about the realization of the principle of equality before the law, it was strongly emphasized that the equality of men and women should be fully ensured, and the importance given by the constitution maker to the appearance of the principle of equality between spouses was clearly demonstrated.
In this respect, it has been concluded that men and women are in a comparable situation in terms of using the surname before marriage also after marriage. Although the man can use his maiden name alone after marriage, since the rule stipulates that a woman can use her premarital surname only in front of her husband’s surname after marriage, it is clear that there is a difference in treatment on the basis of gender between spouses who are in a comparable situation.
Many individual applications have been made to the ECHR and the Constitutional Court, claiming that not allowing the woman to use her pre-marriage surname even after marriage, leads to a violation of rights.
In this context, the ECHR decided that not allowing a woman to use her maiden name alone violated Article 14 of the Convention within the meaning of Article 8 of the Convention. The Constitutional Court, on the other hand, stated that the provisions of international conventions should be taken as a basis in accordance with the fifth paragraph of Article 90 of the Constitution, since the provisions of the international conventions that stipulate that men and women have equal rights in terms of surnames after marriage and the domestic law regulations that stipulate that the married woman should use her husband’s surname, contain different provisions on the same subject.
In this respect, he stated that the implementation of Article 187 of the Law No. 4721 about the applicants was incompatible with the principle of legality and led to a violation. On the other hand, the Supreme Court of Appeals, which developed an important jurisprudence in cases related to the surname of women, accepted that the provisions of international conventions should be applied in accordance with the fifth paragraph of Article 90 of the Constitution, in the dispute arising from the fact that the woman was not allowed to use her surname before marriage. On the other hand, it is clear that women’s enjoyment of equal rights with men should be guaranteed primarily by law, which is the main source of law, and administrative practices that can implement this guarantee should be developed.
The public authorities have a certain margin of appreciation in assessing whether there is an objective and reasonable reason for different treatment to those in similar situations or to what extent it is possible to envisage different treatment. When it comes to gender-based differential treatment, the discretion of public authorities narrows. In addition, considering the importance that the legislator attaches to the appearance of the principle of equality between spouses, it is clear that the legislator has a very limited discretion in the context of gender-based differential treatment between spouses.
There is a public interest in preventing confusion in the population records and determining the lineage in a healthy way. However, it is not possible to say that the only way to ensure the said public interest is for the woman to use her surname before her husband’s surname after marriage. For this reason, the purpose of maintaining the order of the population registers cannot be accepted as a reasonable reason for the difference treatment stipulated by the rule. It is also clear that taking her husband’s surname after marriage is not the only option that makes it possible for the family to have a common surname. In this context, it is also possible for the spouses to be given the opportunity to determine the surname of one of them or another name as a common surname, or it is possible to foresee that the common surname will consist of the combination of the spouses’ surnames before marriage. Moreover, it is difficult to say that the common surname is a necessary element of protecting family ties, and in this sense, if the spouses do not have a common surname, family ties cannot be protected in any way. Accordingly, it is not possible to accept the aim of protecting and strengthening family ties as a reasonable reason for the difference in treatment stipulated by the rule.
In the light of these evaluations, it has been concluded that the different treatment stipulated by the rule between men and women in the context of using the surname before marriage alone after marriage violates the principle of equality. The Constitutional Court decided that the rule was unconstitutional and annulled with the reasons explained.
The inability of a woman to use only her surname after marriage has been a matter of debate for a long time. Great support came from the constitutional court with the above mentioned decision to combat this gender-based differential treatment. However, the cancellation decision will come into effect in January 2024. Unless there is a contrary regulation from the Parliament within this period, women will be able to use only their celibacy surnames after marriage without having to file a lawsuit.
Contact Antalya Lawyer Ceren Topcu İncetaban and her Antalya Law Firm with experts in Civil Law for legal support about the implementation of the relevant decision, the transition process and subsequent implementations.