In its judgment in Case No. E.2022/155 of February 22, 2023, published in the Official Gazette on April 28, 2023, Turkey’s Constitutional Court held 9–6 that article 187 of the Turkish Civil Code of 2001, obliging married women either to use their husbands’ surnames after their maiden name or to replace their maiden name, violated article 10 of the Constitution, which states: “Everyone is equal before the law without distinction as to language, race, color, sex, political opinion, philosophical belief, religion and sect, or any such grounds. Men and women have equal rights. The State has the obligation to ensure that this equality exists in practice.”
The court invalidated article 187 and ruled that the invalidation will take effect nine months after the judgment’s publication in the Official Gazette.
Background to the Case
Article 187 of the Civil Code provides as follows:
Married women shall bear their husband’s name. However, they can make a written declaration to the Registrar of Births, Marriages and Deaths on signing the marriage deed, or at the Registry of Births, Marriages and Deaths after the marriage, if they wish to keep their maiden name in front of their surname.
The right of married women to use their maiden name together with the husband’s surname was added to the former Civil Code of 1926 by an amendment in 1997. Before the amendment, the law required married women to replace their maiden name with their husbands’ surname at marriage. (1926 Civil Code art. 153.) When the matter of the married woman’s surname was brought before the European Court of Human Rights in the case of Unal Tekeli v. Turkey (Application no: 29865/96, Nov. 16, 2004), the court held that obliging a married woman to bear her husband’s surname was a “violation of Article 14 [prohibition of discrimination] of the [European Convention on Human Rights] in conjunction with Article 8 [right to respect for private and family life].” In that case, the Turkish government argued that the interference with the relevant rights were justified by “the legitimate aim of reflecting family unity through the husband’s surname and thereby ensuring public order.” (Unal Tekeli § 57.) The court found that “while family unity can be reflected by choosing the husband’s surname as the family name, it can be reflected just as well by choosing the wife’s surname or a joint name chosen by the couple” and that the “objective of reflecting family unity through a joint family name cannot provide a justification for the gender-based difference.” (§§ 57, 64 & 68.) While the Unal Tekeli case concerned the application of the former rule that did not allow a woman to keep her maiden name in marriage, the court noted that the amended rule allowing a woman to keep her maiden name did not remedy the situation as it still obliged the married woman to take her husband’s name. (§ 62.)
However, article 187 of the Civil Code remained unchanged after the judgment in Unal Tekeli. The matter came before the Constitutional Court in 2009 in an invalidation action. In its judgment of March 10, 2011, the court dismissed the invalidation action, holding that the rule was a constitutional use of the legislature’s discretion and did not violate constitutional rights. Under article 152/4 of the Constitution, if the court dismisses an invalidation action on the merits, a second invalidation cannot be brought against the same statute for a period of 10 years. This meant that invalidation actions against article 187 of the Civil Code were foreclosed until 2021.
Nevertheless, in cases brought under the individual application procedure following the 2011 judgment, chambers of the court have held in various applications that obliging the applicant married woman to take her husband’s surname violated her constitutional rights, finding that articles 8 and 14 of the European Convention on Human Rights as interpreted by the European Court of Human Rights in Unal Tekeli superseded article 187 of the Civil Code by way of article 90 of the Constitution, which provides that provisions of duly ratified treaties on human rights and fundamental freedoms override laws when the treaties and the laws are in conflict. However, because the remedy in the individual application procedure is remanding the case to the trial court for a retrial and not invalidation, article 187 remained on the books. Regardless, in 2015, a judgment by the General Assembly of the Civil Chambers of the Court of Cassation (Turkey’s highest court of civil jurisdiction) affirmed a trial court decision ordering the civil registry administration to allow a married woman to use only her maiden name in the registry.
The February 22 Judgment of the Constitutional Court
In Case No. E:2022/155, the Constitutional Court took up the matter again in an invalidation action after a constitutional objection was raised in a family court, 10 years having passed since the 2011 invalidation action. The court in its judgment noted the gradual developments in family law over the last three decades that upheld equality between the sexes and equality within marriage. (Case No. E:2022/155, §§ 21–34.) The court observed that while it could be accepted that a common family name would help to strengthen the family bond and uphold the social functions of the family unit, it was apparent that obliging a married woman to take her husband’s surname was not the only way to achieve a common name. (§ 45.) Moreover, the court noted that it was not convinced that a common family name was necessary for safeguarding the family relationship, and thus this rationale did not justify obliging the married woman to take her husband’s name. (§ 46.) Finding no objective grounds for treating males and females differently in allowing a person to continue using only his or her original surname after marriage, the court held that article 187 of the Civil Code violated article 10 of the Constitution. (§§ 47–49.)
Kayahan Cantekin, Law Library of Congress
June 2, 2023
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