Law Student
1. INTRODUCTION
Marriage is a family law contract. In accordance with the Turkish Civil Code (TCC), a marriage union is established between spouses by marriage. The subject of “Surname of the wife” is regulated in Article 187 of the Turkish Civil Code: “The wife shall take on her husband’s surname after marriage. However, through a written application made to the marriage officer or civil registry office later on, the wife can also use her own surname preceding that of her husband. Women having used two surnames before can benefit from this right only for one surname.”
As it is understood from this article, it is obligatory for the wife to take the surname of her husband with the beginning of the marriage can use the surname of celibacy together with the surname of her husband by complying with the stipulated conditions. In this case, it does not seem possible for the woman to use the surname of celibacy without taking her husband’s surname when the marriage continues. However, various decisions have been made by the Court of Cassation, the Constitutional Court and the European Court of Human Rights regarding that a woman may be allowed to use only her maiden name in marriage, pursuant to various constitutional provisions and international agreements.
2. RELEVANT CONSTITUTIONAL PROVISIONS AND INTERNATIONAL TREATMENTS
The principle of equality is regulated in Article 10 of the Constitution of the Republic of Turkey: “Everyone is equal before the law without distinction as to language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such grounds.” At the same time, with the 41st article, it is emphasized that women are in an equal position with men in the union of marriage.
Another constitutional provision that can be evaluated on the subject is included in Article 17: “Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.”
In addition, international treaties to which Turkey is a party are of great importance in terms of the surname of the woman. According to the 90/last article of our Constitution international agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail. Therefore, treaties to which Turkey is a party, such as the European Convention on Human Rights (ECHR), the Universal Declaration of Human Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women, have the force of law. These international agreements lay the groundwork for many judicial decisions regarding women’s use of maiden names only.
3. LEGAL PRECEDENTS
The European Court of Human Rights, in its first decision on this issue, decided that Articles 8 and 14 of the European Convention on Human Rights (ECHR) were violated and evaluated the obligation of a woman to take her husband’s surname as an interference with private life.
Article 8/1 of ECHR: “Everyone has the right to respect for his private and family life, his home and his correspondence.”
Article 14 of ECHR: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
After the individual application to the Constitutional Court was opened, the provision regarding the surname of a married woman has been the subject of individual application, based on both the ECtHR decisions, the constitutional provisions regulating gender equality and international treaties. As a result of the application, the decision of the Constitutional Court was in the direction of the violation of the right to protect and develop the spiritual existence, which is guaranteed in Article 187 of the Turkish Civil Code and Article 17 of our Constitution. Thus, the Constitutional Court made a decision in parallel with the ECtHR’s decision and paved the way for women to use only their pre-marriage surname after marriage.
In addition, in a decision of the Court of Cassation Civil Chamber, the right of a woman to use her maiden name after marriage was evaluated in accordance with Article 17 of the our Constitution and Articles 8 and 14 of the ECHR.
4. PROCEDURE AND RESULTS OF THE CASE OF ALLOWING WOMEN TO USE ONLY PRE-MARRIAGE SURNAME
According to Article 187 of the Turkish Civil Code, although a woman seems to be able to use her surname only with her husband’s surname after marriage, this decision is overcome by precedents. However, since the relevant article of the Turkish Civil Code is still in effect, it is not possible to use only the surname before marriage by applying directly to the population directorate. For this reason, a woman who wishes to use only her bachelor’s surname without taking her husband’s surname during marriage should file a lawsuit in the family court in the place of residence regarding this request. As stated in the decision of the General Assembly of Civil Chambers, it is not necessary for the woman to show a justification in order for this lawsuit to be filed.
The court that deals with the case regarding the woman’s use of her maiden name is the Family Courts. The competent court is the court of the plaintiff’s place of residence, in accordance with Article 36/1 of the Law on the Civil Registrations Services.
However, with the present case, it is only about the request of the woman to change her surname, the civil registry of the married woman will continue to remain in the registry of the person she married. In addition, the application made by the woman is valid only for her surname and does not affect the surname of their children.
5. DURATION OF THE CASE
A woman can always file a lawsuit regarding the use of her maiden name. The fact that the woman has not made such a request during a long marriage does not abolish her right to sue.
Since the state registration of citizens is carried out through the Republic of Turkey identification numbers, the change in the last name will not cause any public harm or systemic confusion.
6. CONCLUSION
Although a woman has been granted the right to use her maiden surname through judicial decisions, there is a contradiction between the provision of law and case-law, since the provision that a woman can use her maiden name only together with her husband’s surname still exists. For this reason, a woman who wishes to use her surname without taking her husband’s surname during the marriage union will only be able to use her previous surname by filing a lawsuit in the family court in the light of the ECtHR, Constitutional Court and Supreme Court decisions.
BIBLIOGRAPHY
• ORUÇ, Y. D. (2016). Exclusive Use of a Maiden Name of a Married Woman. Dergipark Akamedik.
• https://rm.coe.int/turkish-civil-code-family-law-book/1680a3bcd4
• https://www.echr.coe.int/documents/convention_eng.pdf
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