The Surname of Married Women: An Everlasting Problem

Evli Kadının Bitmek Bilmeyen Soyadı Sorunu

Nazlı Hilal DEMİR

Presented here is the work on the analysis of the surname of married women in which there have been many developments recently. The aim is to give a general outlook about the legal situation of married women’s surname in Turkey in the light of the case of Tanbay Tüten v. Turkey (Appl. No: 38249/09). In this regard, a quick overview about the regulation related to women’s surname in Turkey will be given first. Then the judicial authority’s perspectives to this regulation will be examined. And in the last section, the situation will be evaluated and some important conclusions will be drawn.

Turkish Civil Code, Art. 187, Gender Equality, Tanbay Tüten v. Turkey, Surname of Married Women.

Bu çalışma, son yıllarda birçok gelişmenin yaşanmış olduğu evli kadının soyadına ilişkin sorunun incelemesini içermektedir. Burada amaç, AİHM’in bu konuya ilişkin vermiş olduğu son tarihli Tanbay Tüten - Türkiye (Başvuru No: 38249/09) kararı ışığında kadının soyadına ilişkin Türkiye’deki hukuki durum hakkında bilgi vermektir. Bu kapsamda çalışmada öncelikle kadının soyadına ilişkin pozitif hukuktaki düzenleme ele alınacak, ardından yargı mercilerinin bu düzenleme hakkındaki görüşleri incelenecektir. Son bölümde ise bu sürecin bir analizi yapılarak, bazı önemli sonuçlara varılacaktır.

Türk Medeni Kanunu, md. 187, Toplumsal Cinsiyet Eşitliği, Tanbay Tüten - Türkiye kararı, Evli Kadının Soyadı.

To begin, I want to underline the fact that a new Turkish Civil Code was enacted in 2002 in order to change some articles of Former Turkish Civil Code, which had inequality between a husband and his wife. However, Article 187, which is against the gender equality, was worded likewise as a mandatory legal norm in New Turkish Civil Code. So we can say that the only change was the regulation’s number.

This article is 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’.

As we can see, this Article does not allow women to use their maiden name alone. The husband's last name is selected as the ‘family name’ when they get married. Therefore, a woman has only the option to decide whether or not to use her maiden name before her husband’s surname. So according to Turkish law married woman has only two options; to use her husband’s surname and to give up her maiden name or to use her maiden name before her husband’s surname. After all, without the need to argue, it is obvious that this Article is against gender equality!

In Turkey, the debates about this issue are never-ending. However in the last 13 years, there have been significant developments relating to the surname of married women. Now let’s take a look at the judicial authority’s perspectives chronologically.

STEP 1 - The First Case of the ECtHR (2004)

The European Court of Human Rights has put an end to this debate in 2004. In the case of Ünal Tekeli v. Turkey (Appl. No. 29865/96) the applicant alleged that the refusal by the domestic courts to allow her to bear only her maiden name unjustifiably interfered with her right to protection of her private life. She further alleged that she had been discriminated against in that only married men could continue to bear their own family name after they married. In that connection she relied on Article 8 (which states the Right to respect for private and family life) of the Convention, read alone and in conjunction with Article 14 (which states the Prohibition of discrimination).

The Government disputed the applicability of Article 8 of the Convention in the present case. They maintained that the choice of name was not entirely a matter of a person’s individual choice and that the States had a wide margin of appreciation in the area. In their submission, the legislation on assigning names had to remain within the State’s domain and did not come within the scope of the Convention. After that, the Government acknowledged that it amounted to a difference in treatment on grounds of sex but argued that this was based on objective and reasonable grounds which prevented it from being in any way discriminatory.

The Government submitted that there was a link between family unity and the family name and that by providing that families should take the husband’s surname the Turkish legislature had opted for a traditional arrangement whereby family unity was reflected in a joint name. In the Government’s submission, family unity was a public policy consideration and private life ceased where the individual entered into contact with public life.

The Government argued that the difference of treatment on grounds of sex was justified in view of the social reality in Turkey. Pointing out that approximately 69 of women had very limited economic freedom, the Government argued that a joint surname - reflected through the husband’s surname - was designed to strengthen the wife’s position in the family.

The Government reiterated that since Article 153 of the Civil Code had been amended on 1997 married women could now keep their maiden name in front of their family name. And at last the Government also pointed out that major difficulties would be occasioned by a change in the system of keeping registers of births, marriages and deaths.