Leading Judgments
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF TÜRKİYE
Docket Number: 2022/155
Decision Number: 2023/38
Date of Decision: 22/2/2023
Official Gazette Date & Issue: 28/4/2023 - 32174
ACTION FOR ANNULMENT FILED BY: Istanbul 8th Family Court
SUBJECT-MATTER: Request for the annulment of Article 187 of the Turkish Civil Code no. 4721 and dated 22 November 2001 (“the Code”) for being in breach of Articles 2, 10, 17, 20, 90, and 153 of the Constitution.
GROUND: In the action which was filed seeking the entitlement for a woman to bear her maiden name alone after marriage, the Family Court, having considered that the impugned provision was unconstitutional, applied for its annulment.
I. CONTESTED PROVISION
Article 187 of the Code, in so far as relevant, provides as follows:
“III. Surname of the wife
Article 187- 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.”
II. PRELIMINARY REVIEW
1. At the meeting as to the preliminary review, dated 29 December 2022, with the participation of Mr. Zühtü ARSLAN, Mr. Hasan Tahsin GÖKCAN, Mr. Kadir ÖZKAYA, Mr. Engin YILDIRIM, Mr. Muammer TOPAL, Mr. M. Emin KUZ, Mr. Rıdvan GÜLEÇ, Mr. Recai AKYEL, Mr. Yusuf Şevki HAKYEMEZ, Mr. Selahaddin MENTEŞ, Mr. Basri BAĞCI, Mr. İrfan FİDAN, Mr. Kenan YAŞAR and Mr. Muhterem İNCE pursuant to the provisions of the Internal Regulations of the Constitutional Court, the applicability of the contested provision was first discussed.
2. Pursuant to Article 152 of the Constitution and Article 40 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court dated 30 March 2011, if a court hearing a case finds that the provisions of a code or a Presidential decree that will be applied in the relevant case are contradictory with the Constitution or if it deems that the alleged contradiction with the Constitution as raised by one of the parties is serious, the court shall be authorized to lodge an application to the Constitutional Court for the annulment of the impugned provisions. However, in order for a court to bring an action before the Constitutional Court under the contested provisions, there must be a duly lodged case falling within the Court’s jurisdiction and the provision sought to be annulled must be applicable to the case. The provisions to be applied are those which have a positive or a negative impact on the resolution of the issues which arise at the various stages of the pending case or on the finalisation of the case.
3. Pursuant to the first sentence of the contested provision, which is Article 187 of Law No. 4721, a married woman shall take her husband’s surname as the family name; but through a written declaration to the Registrar of Marriages on signing the marriage deed or to the Civil Registry Office after the marriage, she shall be entitled to bear her maiden name in front of her husband’s surname; the second sentence thereof provides that women having used two surnames before can benefit from this right only for one surname. The present case does not concern an application lodged by the applicant, who had previously used two surnames, for the re-enjoyment of that right, but a request by the applicant to be entitled to bear her maiden name alone after marriage. In this regard, the second sentence cannot be deemed applicable in the present case.
4. For these reasons set out above, regarding Article 187 of the Turkish Civil Code no. 4721 and dated 22 November 2001, it was UNANIMOUSLY decided that
A. An examination on merits be carried out as regards the first sentence and that
B. Since the second sentence cannot be considered applicable to the case before the competent court which has lodged an application, an application as regards the second sentence be DISMISSED due to Court’s lack of competence.
III. EXAMINATION ON THE MERITS
5. Having deliberated on the petition and annexes thereto, the report on the merits of the case, which was issued by the rapporteur-judge Mr. Onur MERCAN, the contested provision, the relevant constitutional provisions and their legislative intentions, the Court decided as follows:
A. Overview
6. Article 1 of the Surname Law no. 2525 and dated 21 June 1934, stipulates that all Turks must bear their surnames in addition to their proper name; Article 2 provides that the surname must follow the proper name in signing, speaking and writing; and Article 3 envisages that names may not relate to rank and civil service; to tribes, foreign races or ethnicities; nor may they be offensive or ridiculous or contrary to general moral principles.
7. Article 5 § 1 of the same Law provides that adults who are of full legal age shall be free in the choice of their surnames, first sentence of Article 7 envisages that those who do not have a surname and those who seek to change their surname shall notify the name they shall bear with the civil registry offices within two years from the date of publication of the Law, Article 8 provides that the authority to settle disputes concerning the choice of surnames, to give names to children who have not chosen their own surname and whose parents are unknown, and to decide whether a name conforms to the form prescribed by law, is vested in the civil servant of the place where the civil registry office is located, and Article 10 stipulates that those who seek to change their surname after the expiry of the period laid down in the Law shall be subject to the provisions of Law No. 4721.
8. In Article 7 § 1 (c) of the Population Services Law no. 5490 and dated 25 April 2006, the surname and previous surname of married women are listed among the information that shall be included in the family registry.
9. Article 36 § 1 of Law no. 4721 provides that the personal status shall be determined by the official registry kept for this purpose, and Article 39 states that no correction can be made in any record of the personal status registry unless there is a court decision. Article 35 § 1 of Law no. 5490 stipulates that in the absence of a finalised court decision, no corrections may be made to the entries in the population registers and no annotations may be made that would have an impact on meaning and information of the entries. However, material errors made in the registration of events in the family registers are corrected by the Population Directorate according to the docket file.
10. Article 27 § 1 of Law no. 4721 provides that a request for a change of name may be submitted to the judge, provided that the reasons are justified. Article 36 § 1 (b) of Law no. 5490 provides that, in the case of justified reasons, the judge may be requested to make a correction on the same matter. In the event of a change of name, the Population Directorate also makes a correction on the registration of the children of the relevant person with regard to the father’s or mother’s name, and the surname of the spouse and the minor children in the event of a change of surname.
11. Article 3 of the impugned Law envisages that if a woman who has the right to use the surname of her divorced spouse wishes to use her surname prior to marriage, or if a woman who uses her former surname together with her husband’s surname wishes to use only her husband’s surname, the civil registry office shall, upon written request, adopt the necessary measures.
12. The first sentence of Article 321 of Law no. 4721 stipulates that the child shall bear the surname of the family if the parents are married, and Article 314 § 3 establishes that the adoptee shall bear the surname of the adopter if he/she is a minor, the adopter may give the child a new name if he/she so wishes, and the adult adoptee may bear the surname of the adopter if he/she so chooses during the adoption.
B. Meaning and Scope
13. The first sentence of the contested provision, i.e. Article 187 of Law no. 4721, provides that a married woman shall take her husband’s surname as the family name; but through a written declaration to the Registrar of Marriages on signing the marriage deed or to the Civil Registry Office after the marriage, she shall be entitled to bear her maiden name in front of her husband’s surname.
14. Pursuant to the impugned provision, a married woman shall take her husband’s surname as the family name; but she may request through a written declaration to the Registrar of Marriages on signing the marriage deed or to the Civil Registry Office after the marriage to bear her maiden name in front of her husband’s surname. In other words, the woman’s use of her maiden name is conditional upon her request to use her maiden name before her husband’s surname.
15. In this regard, the impugned provision does not allow a married woman to bear only her maiden name after marriage.
C. Ground for the Request for Annulment
16. It was maintained in brief that surname constituted a part of the woman’s identity and personality; that the restriction imposed by the contested provision on the woman’s right to bear her maiden name alone after marriage had no legitimate aim; and that whereas the married man was entitled to bear his surname acquired by birth during his lifetime, the married woman could not enjoy the very same right, which was in breach of the equality principle. It was also argued that the European Court of Human Rights (“ECHR”) found a violation in the relevant cases due to the said difference in treatment; that the Constitutional Court has also rendered judgments finding a violation in similar cases brought before it through individual application mechanism; however, the statutory provision that had not been amended yet was still applied by the administration, which fell foul of the binding nature of the Court’s decisions and judgments. It was accordingly claimed that the contested provision was in breach of Articles 2, 10, 17, 20, 90 and 153 of the Constitution.
Ç. The Court’s Assessment
17. Article 10 of the Constitution reads as: “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. /Men and women have equal rights. The State has the obligation to ensure that this equality exists in practice./ Measures taken for this purpose shall not be interpreted as contrary to the principle of equality./ Measures to be taken for children, the elderly, disabled people, widows and orphans of martyrs as well as for the invalid and veterans shall not be considered as violation of the principle of equality./ No privilege shall be granted to any individual, family, group or class./ State organs and administrative authorities are obliged to act in compliance with the principle of equality before the law in all their proceedings.”
18. The principle of equality enshrined in the impugned article of the Constitution applies to those who are in the same legal status. It is not de facto equality, but legal equality that is envisaged by this principle. This principle stipulates equality not in action but in legal terms. The purpose of this principle is to ensure that those who are in the same status be subject to the same process before laws and to prevent any distinction and privilege. This principle prohibits the breach of equality before laws due to applying different rules to certain individuals and communities of the same status. Equality before the law does not mean that everyone would be bound by the same rules in every aspect. The circumstances specific to these individuals and communities may require the application of different rules and practices in respect of them. If the same legal situations are subject to the same rules whereas the different legal situations are subject to different rules, the principle of equality enshrined in the Constitution is not impaired. (see the Court’s judgment no. E.2017/47, K.2017/84, 29 March 2017, § 18; E.2020/95, K.2022/3, 26 January 2022, § 25).
19. In the constitutionality review to be carried out in relation to the principle of equality, it must first be determined whether there is a difference in treatment between persons in the same or similar situations within the scope of Article 10 of the Constitution and, in this context, whether persons in the same or similar situations are discriminated against. It should then be examined whether the difference in treatment is based on an objective and reasonable ground, and finally, if it is based on an objective and reasonable ground, whether the difference in treatment in question is proportionate. The principle of proportionality requires a fair balance to be struck between the aim and the means. In other words, this principle requires that the difference in treatment be proportionate to the aim pursued (see the Court’s judgment no. E.2016/205, K.2019/63, 24 July 2019, § 65; E.2021/1, K.2021/32, 29 April 2021, § 32).
20. It is stipulated in the contested provision that a married woman shall take her husband’s surname as the family name; but through a written declaration to the Registrar of Marriages on signing the marriage deed or to the Civil Registry Office after the marriage, she shall be entitled to bear her maiden name in front of her husband’s surname. It is also set forth therein that the married woman cannot bear her maiden name alone after marriage.
21. Prior to the enactment of Law no. 4721, it can hardly be argued that the position of the spouses in the marriage union was equal in all respects. As a matter of fact, Article 152 of the repealed Turkish Civil Code no.743 and dated 17 February 1926 reads as follows: “The husband is the head of the union / The choice of the house and the proper and proper provision of the wife and children belong to him.” and Article 153 § 2, reads as follows: “The wife is the assistant and advisor of her husband as far as she is able to ensure mutual happiness. The woman takes care of the house.”, the first sentence of Article 154 reads: “The husband shall represent the union”. In addition, Article 21 of the repealed Law stipulates that the domicile of the male spouse shall be deemed to be the domicile of the female spouse, Article 98 establishes that the application for marriage shall be submitted to the administration of the place where the male spouse resides, and the second sentence of Article 263 provides that if the parents cannot agree on the custody of the child during the continuation of the marriage union, the father's vote shall prevail.
22. On the other hand, prior to the amendment made to Article 153 § 1 of the repealed Law by Article 1 of the Law no. 4248 and dated 14 May 1997, it was envisaged that a married woman shall take her husband’s surname as the family name. In the amendment to the impugned paragraph, it was stipulated that a married woman shall take her husband’s surname as the family name; but through a written declaration to the Registrar of Marriages on signing the marriage deed or to the Civil Registry Office after the marriage, she shall be entitled to bear her maiden name in front of her husband’s surname, and that the woman who had previously used two surnames could only enjoy this right for one surname. The ground for the amendment indicated that there was a need to allow a married woman to use her husband’s surname and her maiden name if she was recognised in her professional life before marriage or if, for some reason, she would like to retain her maiden surname.
23. Amendments to the legislation may need to be introduced over time for a number of reasons, including social, economic, demographic and technological developments. In addition, Article 2 of the Constitution refers to a State which respects human rights, and that may require amending or repealing certain legal provisions, taking into account developments and changes in the field of human rights. In other words, provisions which, when they come into force, have a positive impact on social life and make it possible to establish order in a given area, may, over time, become inadequate to meet social needs and may also deviate from ensuring the adequate realisation of universal values recognised in the context of human rights. In fact, the general preamble of Law no. 4721 emphasised that the law, like living beings, ages with time and has difficulty meeting the needs of the times, and accordingly, Law no. 743 is repealed by its Article 1028.
24. In consideration of the principle of equality, Law no. 4721 has redefined the position of the spouses in the marital union. The general preamble of the Law in question states that the amendments introduced by the law in the area of marriage law are based on the idea of maintaining the principle of equality between men and women, which is recognised as a fundamental principle in modern legal systems, and that the provisions contrary to this equality have been repealed from the law or regulated in such a way as to ensure equality, and that the majority of the amendments made in the Third Section of the Law, titled “GENERAL PROVISIONS OF MARRIAGE”, also aim to ensuring equality between men and women.
25. In this context, Article 186 of the Law stipulates that spouses shall choose their matrimonial home together, union of marriage shall be managed by the spouses together and spouses shall contribute to expenses of the union by way of endeavour and assets to the extent permitted by their power. As stated in the preamble to the impugned Article, the provision granting the husband the right to choose the place of residence has been amended, the provision stating that the husband is the head of the marriage union has been abolished in order to ensure equality between men and women, the spouses have been afforded an equal say in the management of the marriage union, and the participation of the spouses in the expenses of the marriage union has also been regulated, taking into account the principle of equality.
26. In addition, Article 159 of the repealed Law no. 743, which includes the provision stipulating that the female spouse may engage in a profession or work, provided that the male spouse explicitly or implicitly grants permission, has been annulled by the Court’s decision no. E.1990/30 dated 29 November 1990, following its annulment with the decision no. K.1900/31, Article 192 of the Law no. 4721, which regulates the same matter and referred to the impugned decision in its preamble, stipulates that neither of the spouses shall be obliged to obtain permission from the other one in choice of profession or work, however, peace and interests of the union of marriage shall be considered in choice of profession and work and when handling them.
27. Moreover, Article 134 § 1 of Law no. 4721 stipulates that the man and the woman to marry each other apply together to the marriage registry office in the domicile of one of the parties, thus abandoning the approach of Article 98 of the repealed Law no. 743, which granted priority to the man’s place of residence in determining the place of application for marriage.
28. In addition, Article 336 § 1 of Law no. 4721 states that the parents shall jointly exercise custody as long as the marriage continues, and this Article does not contain the provision of Article 263 of the repealed Law no. 743, which recognises the superiority of the male vote. Furthermore, the first sentence of Article 4 § 2 of Law no. 2525, which provides that in the event of dissolution of marriage or divorce, even if the child is given to the mother, the child shall take the name chosen or to be chosen by the father, was found to be contrary to the principle of equality and annulled by the Court in its decision no. E.2010/119, K.2011/165 of 8 December 2011.
29. In this respect, it is understood that there have been legal developments to ensure equality between women and men in the historical process; in this context, some provisions that were considered contrary to the principle of equality have been repealed; in addition, the provisions of the repealed Law no. 743 that were considered contrary to the principle of equality have not been included in Law no. 4721, and the marriage law has been largely reorganised in the context of the principle of equality. On the other hand, the question of the woman’s surname has not been reorganised in Law no. 4721, Article 153 § 1 of the repealed Law no. 743 has been incorporated into Article 187 of Law no. 4721, which also contains the contested provision.
30. Article 1 of Law no. 2525 states that it is an obligation to bear a surname. In addition, Article 20 § 1 of the Constitution states that everyone has the right to demand respect for his/her private life. It is clear that the right to a name, which is identified with the life of the individual and becomes an inseparable element of his/her personality, is one of the most important elements in determining his/her identity as an individual and is an inalienable personal right and also an element of the individual’s private life. Therefore, the right to identity information such as sex, birth registration and information on family ties, as well as the right to request changes and corrections thereto, and the right to a first name and surname are also covered by Article 20 of the Constitution (for similar assessments, see Hacı Ahmet Eskikanbur, no. 2015/2944, 9 January 2019, § 27; Turgay Karaca, no. 2018/34343, 27 January 2021, § 29).
31. In this respect, bearing a surname as part of one’s personality is not only an obligation but also a right under Article 20 of the Constitution. In the same vein, the ECHR has also recognised that this right falls within the scope of Article 8 of the European Convention on Human Rights (“the Convention”) (see Ünal Tekeli v. Türkiye, no. 29865/96, 16 November 2004, § 42).
32. Article 41 § 1 of the Constitution, which states that the family is the foundation of Turkish society, was amended by Article 17 of Law no. 4709 of 3 October 2001, which added the phrase “and based on equality between spouses”. The general preamble to the aforementioned Law states that the Constitution needs to be renewed in accordance with the needs that have arisen during the period in which it has been in force, the expectations of the public and new political initiatives, and that it is inevitable to make some amendments to the Constitution as a prerequisite for fulfilling the economic and political criteria in the process of full membership in the European Union and to make the necessary legal arrangements in this field, and that the proposal aims to amend the Constitution in accordance with contemporary democratic standards and universal norms that can respond to the needs of society and that emphasise human rights and the rule of law. The preamble to this Article states that the aim is to ensure equality between women and men.
33. Furthermore, while Article 10 § 1 of the Constitution states that everyone is equal before the law without discrimination on grounds of sex, the second paragraph, which was added to this Article by Article 1 of Law no. 5170 of 7 May 2004, states that women and men have equal rights and that the State is obliged to ensure that this equality exists in practice. The general preamble of the Law in question states that the need to make amendments to the laws in order to adapt to the new democratic initiatives developing in the world and to raise fundamental rights and freedoms to the level of universally accepted standards and norms and the criteria of the European Union, in accordance with these initiatives, has led to the necessity to make amendments to the Constitution. The preamble to this Article refers to international conventions prohibiting discrimination on grounds of sex and explains that the amendment in question provides that the maintenance or adoption of measures providing for certain advantages in favour of the under-represented sex shall not be contrary to the principle of equality.
34. The above-mentioned constitutional amendments both emphasise the need to ensure full equality between men and women in order to be able to speak of the realisation of the principle of equality before the law, and clearly demonstrate the importance that the constitution-maker attaches to the principle of equality between spouses.
35. Furthermore, the principle of equality between spouses is specifically regulated in Article 5 of Protocol No. 7 to the Convention: “Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children”. The said Additional Protocol was approved by Decision no. 2016/8717 of the Council of Ministers of 28 March 2016, published in the Official Gazette no. 29678 of 8 April 2016, following the approval of its ratification by Law no. 6684 of 10 March 2016.
36. In this respect, it has been concluded that women and men are in a comparably similar situation as regards their right to bear the surname they had before marriage also after marriage. Although a man is entitled to bear his own surname alone after marriage, the contested provision provides that a woman may bear her maiden name only before her husband’s surname after marriage. The provision therefore results in an explicit difference in treatment on grounds of sex between spouses who are in a comparably similar situation.
37. Many individual applications have been made to the ECHR and the Court on the grounds that it is a violation of right not to allow a woman to use her maiden name after marriage. In this context, the ECHR ruled that not allowing a woman to use her maiden name alone violated Article 14 of the Convention in conjunction with Article 8 (see Ünal Tekeli v. Türkiye).
38. In addition, the Court stated that since the provisions of international conventions, which provide that men and women have equal rights with regard to their surnames after marriage, and the provisions of domestic law, which provide that married women must use their husband’s surname, contain different provisions on the same subject, the provisions of international conventions, in accordance with Article 90 § 5 of the Constitution, prevail and, in this respect, the application of Article 187 of Law no. 4721 to the applicants is incompatible with the principle of legality and results in a violation (for the Court’s assessments in the same vein, see Sevim Akat Eşki, no. 2013/2187, 19 December 2013; Gülsüm Genç, no. 2013/4439, 6 March 2014; Neşe Aslanbay Akbıyık, no. 2014/5836, 16 April 2015).
39. In addition, the Court of Cassation, which has developed an important jurisprudence in cases concerning women’s surnames, has accepted, like the Court, that the provisions of international conventions should be applied in disputes arising from the fact that women are not allowed to use their maiden names, in accordance with Article 90 § 5 of the Constitution. In this context, the Court of Cassation concluded that the refusal to allow a woman to use her maiden name alone after marriage was contrary to Article 14, read in conjunction with Article 8, of the Convention, and stressed that there was no need for a justifiable reason for a woman to use her maiden name alone after marriage (see the decision of the General Assembly of Civil Chambers of the Court of Cassation, E.2014/889, K. 2015/2011, 30 September 2015).
40. It cannot be said, however, that the above-mentioned case law alone is sufficient for the realisation of the principle of equality before the law. The legislative, executive and administrative authorities also have certain obligations in order for the principle in question to dominate the legal order. In other words, as a requirement of the principle of a State that respects human rights, all state bodies and administrative authorities have the duty to create an order in which there are no disputes and conflicts regarding women’s rights in the context of the principle of equality. In fact, the second sentence of Article 10 § 2 points out that the State is obliged to ensure the realisation of equality between women and men, and Article 10 § 5 of the Constitution provides that the state organs and administrative authorities shall act in accordance with the principle of equality before the law in all their actions.
41. In addition, the preamble to the Constitution states that the separation of powers is a civilised division of labour and cooperation between state bodies. Accordingly, it is a constitutional obligation for state bodies and administrative authorities to cooperate in order to apply the principle of equality of spouses. It is clear that legal regulations and administrative practices are of great importance in the context of this cooperation. In fact, it is essential for the implementation of the principle of equality between spouses that women should be able to enjoy the same rights as men without having to resort to legal remedies. In other words, it is clear that women’s enjoyment of equal rights with men must first be guaranteed by laws, which are the primary source of law, and administrative practices must be developed which can implement this guarantee, and it cannot be accepted that judicial jurisprudence (case-law) alone provides sufficient guarantees in this context.
42. The above-mentioned judgments of the ECHR, the Court and the Court of Cassation have created a limited possibility for women to use their maiden name alone after marriage. This is because, despite the constitutional amendments on gender equality and all the developments in case-law, it has not been possible for a woman to use her maiden name alone without having to bear any burden due to the provision that is still in force and is still applied by the administrative authorities.
43. Public authorities have a certain degree of discretion in assessing whether there are objective and reasonable reasons for different treatment of persons in similar situations, or the extent to which different treatment can be foreseen. However, the scope of this discretion may vary depending on the nature of the right that is the subject of different treatment (see Nuriye Arpa, no. 2018/18505, 16 June 2021, § 59). On the other hand, the discretion of the public authorities is narrowed in the case of different treatment based on sex (see Ayşe Tezel and Others [Plenary], no. 2018/14186, 20 October 2022, § 91). Given the importance attached by the constitution-maker to the manifestation of the principle of equality between spouses, it is also clear that the lawmaker has an extremely limited margin of appreciation in the case of different treatment of spouses based on sex.
44. There is a public interest in preventing confusion in civil registry records and in determining descent in a sound manner. However, in view of the fact that individuals have identification numbers of the Republic of Türkiye and that civil registry services are provided through the use of information technologies, it cannot be said that the only way to ensure the public interest in question is for a woman, after marriage, to use her maiden name only before her husband’s surname. Therefore, the objective of ensuring the orderliness of civil registry records cannot be accepted as a reasonable justification for the difference in treatment provided for by the impugned provision.
45. The family, which is described as the foundation of Turkish society in Article 41 § 1 of the Constitution, has important functions such as the transmission of social values to the next generations. It can be said that the single name of the family, i.e. the family members having the same surname, protects the family ties and thus contributes to the fulfilment of the social function of the family. However, it is clear that the wife taking her husband’s surname after marriage is not the only way in which the family can have a common surname. In this context, it is also possible to allow the spouses to choose the surname of one or the other of them as the common surname, or to determine that the common surname will be a combination of the surnames of the spouses before the marriage.
46. Moreover, it is difficult to say that a common surname is a mandatory element for the protection of family ties and, in this sense, it is difficult to say that family ties cannot be protected in any way if the spouses do not have a common surname.
47. Accordingly, the aim of protecting and strengthening family ties cannot be accepted as a reasonable ground for the difference in treatment provided for by the provision. There is no other reason for providing that a woman may use her maiden name before her husband’s surname after marriage.
48. In this respect, it has been concluded that the difference in treatment between men and women provided for by the provision concerning the use of one’s own surname alone after marriage is contrary to the principle of equality, since it is not based on objective and reasonable grounds.
49. In the light of the foregoing reasons, the contested provision is contrary to Article 10 of the Constitution. Therefore, it should be repealed.
Mr. Kadir ÖZKAYA, Mr. Muammer TOPAL, Mr. Yıldız SEFERİNOĞLU, Mr. Selahaddin MENTEŞ, Mr. İrfan FİDAN and Mr. Muhterem İNCE dissented from this opinion.
As the provision was repealed as being contrary to Article 10 of the Constitution, it was not examined under Articles 2, 17, 20, 90 and 153 of the Constitution.
IV. THE IMPACT OF THE ANNULMENT OF THE CONTESTED PROVISION ON THE OTHER PROVISIONS
50. Pursuant to Article 43 § 4 of the Code no. 6216 on the Establishment and Rules of Procedures of the Constitutional Court, in cases where the annulment of certain provisions of a given law, Presidential decree or the Rules of Procedure of the Grand National Assembly of Türkiye renders inapplicable any other provisions or all provisions embodied therein, these provisions may also be annulled by the Constitutional Court.
51. Accordingly, the Court has decided, pursuant to Article 43 § 4 of the Code no. 6216, to annul the second sentence of Article 187 of the Law no. 4721, which becomes inapplicable due to the annulment of the first sentence thereof.
V. THE DATE WHEN THE ANNULMENT DECISION TAKES EFFECT
52. Article 153 § 3 of the Constitution sets forth “Laws, Presidential decrees, or the Rules of Procedure of the Grand National Assembly of Türkiye or provisions thereof shall cease to have effect from the date of publication in the Official Gazette of the annulment decision. Where necessary, the Constitutional Court may also decide on the date on which the annulment decision shall come into effect. That duration shall not be more than one year from the date of publication of the decision in the Official Gazette.” The same provision is also reiterated in Article 66 § 3 of the Code no. 6216, where it is stated that if deems necessary, the Constitutional Court may also set any other date as the effective date of the annulment decision, provided that it will be within a maximum of one year as from the date of publication of the decision in the Official Gazette.
53. Considering that the legal gap to occur following the annulment of the first and second sentences of Article 187 of the Law no. 4721 will be to the detriment of the public interest, the Court has held that the annulment of the said sentences shall take effect nine months after the publication of this decision in the Official Gazette, as laid down Article 153 of the Constitution and Article 66 § 3 of the Code no. 6216.
VI. JUDGMENT
For these reasons, the Constitutional Court held on 22 February 2023:
A. BY MAJORITY and by dissenting opinions of Mr. Kadir ÖZKAYA, Mr. Muammer TOPAL, Mr. Yıldız SEFERİNOĞLU, Mr. Selahaddin MENTEŞ, Mr. İrfan FİDAN and Mr. Muhterem İNCE, that the first sentence of Article 187 of the Turkish Civil Code no. 4721 and dated 22 November 2001 be ANNULLED for being unconstitutional; and UNANIMOUSLY THAT THE ANNULMENT TAKE EFFECT NINE MONTHS AFTER THE PUBLICATION OF THIS DECISION IN THE OFFICIAL GAZETTE, pursuant to Article 153 § 3 of the Constitution and Article 66 § 3 of the Code no. 6216 on the Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011.
B. UNANIMOUSLY that the second sentence of the same article be ANNULLED pursuant to Article 43 § 4 of the Code no. 6216; and that THE ANNULMENT TAKE EFFECT NINE MONTHS AFTER THE PUBLICATION OF THIS DECISION IN THE OFFICIAL GAZETTE, pursuant to Article 153 § 3 of the Constitution and Article 66 § 3 of the Code no. 6216.
DISSENTING OPINION OF JUSTICES KADİR ÖZKAYA, YILDIZ SEFERİNOĞLU, SELAHADDİN MENTEŞ, İRFAN FİDAN AND MUHTEREM İNCE
1.The İstanbul Family Court no. 8, dealing with the action brought by H.O.G.S. for being entitled to bear her maiden name alone, lodged an action for annulment before the Court, seeking the annulment of Article 187 of the Turkish Civil Code no. 4721 for being unconstitutional. Upon the constitutionality review, the majority of the Court ordered the annulment of the first sentence of the said provision. We dissented from the majority’s decision for the following reasons.
2. In the first sentence of Article 187 of the Turkish Civil Code no. 4721, which is the contested provision, it is stipulated that a married woman shall take her husband’s surname as the family name; but through a written declaration to the Registrar of Marriages on signing the marriage deed or to the Civil Registry Office after the marriage, she shall be entitled to bear her maiden name in front of her husband’s surname. The second sentence of the same provision, which was not subject to the constitutionality review for not being applicable in the present case, it is envisaged that the woman having two surnames before marriage shall be entitled to bear only one of them upon getting married. Accordingly, a woman getting married shall in principle take her husband’s surname as the family name; but if she wishes, she may seek entitlement to bear her maiden name in front of that of her husband through a written declaration to the Registrar of Marriages on signing the marriage deed or to the Civil Registry Office after the marriage. She may thus become entitled to hold her maiden name in front of her husband’s surname. In principle, the married woman cannot bear her maiden name alone –without her husband’s surname– after marriage.
3. The majority of the Court, touching upon the legal developments taking place in the historical process for ensuring equality between women and men and observing that the marriage law has been re-regulated in the light of the principle of equality, has noted that the issue of woman’s maiden name was not re-arranged in Law no. 4721; and that Article 153 § 1 of the repealed Law no. 743 is laid down in exactly the same way in Article 187 of Law no. 4721, where the contested provision is also embodied.
4. In the light of the findings and assessments, the majority of the Court has observed that woman and man are in a comparably similar situation as regards their entitlement to bear their own surname prior to marriage alone also after getting married. It has been accordingly concluded that the contested provision causes an explicit difference in treatment on ground of sex between spouses who are in a comparably similar situation.
5. On the other hand, the majority has acknowledged that the prevention of any confusion in records of civil registry and the facilitation of sound establishment of paternity serve the aim of public interest. The majority has, however, stated that the sole means of achieving the public interest in question is not the practice whereby the woman is allowed to bear her maiden name after marriage only in front of her husband’s surname; and that other measures may also be taken to achieve the same public interest.
6. In this context, it has been acknowledged that the family has important functions such as the transfer of social values to the next generations; and that the bearing of the family surname by the family members will contribute to the fulfilment of the social function of the family by preserving family ties. However, it has been once again emphasised that the practice whereby the woman bears her husband’s surname is not the sole option that enables the family to have a common surname. It has been further stated that it is difficult to consider the common surname as a compulsory element for the maintenance of family ties. It has been concluded that the impugned difference in treatment falls foul of the equality principle.
7. It is set forth in Article 2 of the Constitution that the Republic of Türkiye is a state governed by rule of law, whose actions and transactions are in conformity with the law and which is in pursuance of human rights, as well as protects and strengthens these rights and freedoms, establishes and maintains a fair legal order in every field, ensures legal security, abstains from situations and attitudes contrary to the Constitution, considers itself bound by the rules of law and is subject to judicial review.
8. The principle of equality before the law is enshrined in Article 10 of the Constitution, which reads “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. Men and women have equal rights. The State has the obligation to ensure that this equality exists in practice. Measures taken for this purpose shall not be interpreted as contrary to the principle of equality. Measures to be taken for children, the elderly, disabled people, widows and orphans of martyrs as well as for the invalid and veterans shall not be considered as violation of the principle of equality. No privilege shall be granted to any individual, family, group or class. State organs and administrative authorities are obliged to act in compliance with the principle of equality before the law in all their proceedings.”
9. The objective of the principle of equality set forth in Article 10 of the Constitution is to ensure that those having the same legal status are subject to the same treatment under the law and to prevent discrimination and privileges against persons before the law. This principle prohibits the breach of equality before the law due to the application of different rules to certain individuals and communities that are in the same situation. This principle envisages not de facto but de jure equality. Equality before the law does not mean that everyone will be subject to the same rules in every respect. The particular circumstances of every situation and position may entail different rules for some individuals or communities. In the event that the same legal situations are subject to the same rules and different legal situations are subject to different rules, then the principle of equality enshrined in the Constitution will not be breached (see the Court’s decision no. E.2020/95, K. 2022/3, 26 January 2022, § 25).
10. Article 12 of the Constitution sets forth “Everyone possesses inherent fundamental rights and freedoms, which are inviolable and inalienable. The fundamental rights and freedoms also comprise the duties and responsibilities of the individual to the society, his/her family and other individuals”. As it is clearly understood from the wording of the provision, the constitution-maker, while equipping the person with fundamental rights and freedoms, has emphasised that these rights and freedoms cannot be considered separately from the duties and responsibilities of the person towards the society, his/her family and other persons. In this sense, it is laid down in Article 17 of the Constitution that “Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence” and in Article 41 thereof that “Family is the foundation of the Turkish society and based on the equality between the spouses. The State shall take the necessary measures and establish the necessary organization to protect peace and welfare of the family, especially mother and children, and to ensure the instruction of family planning and its practice.”
11. Surname is a name that serves to distinguish members of a family from members of any other family and is passed down from generation to generation. Surname, which is the most important element in determining the identity of a person, is an inalienable and non-transferable personal right that is firmly attached to the person. In addition, according to Article 1 of the Surname Law No. 2525, which states “Every Turk is obliged to bear his surname along with his own name”, it is an obligation imposed on individuals to bear a surname. Surname, which is used as the synonym of the family name in Turkish law, also serves for establishing the identity of the person, as well as identifying the family and lineage and distinguishing the person from the members of other families. Taking into consideration these functions, the legislator envisages the use of surname as a rule through statutory arrangements for reasons such as ensuring order and convenience in records of civil registry, preventing confusion in official documents, determining lineage and protecting the family (see the Court’s decision no. E.2009/85, K.2011/49, 21/10/2011).
12. It appears that the contested provision, “A woman takes her husband’s surname upon marriage”, is intended to serve the public interest and requirements of public order such as the protection of family unity and the strengthening of family ties, ensuring order and convenience in records of civil registry, preventing confusion in official documents and determining lineage.
13. The family, which ensures the transmission of the distinctive characteristics, value judgments, beliefs and thought patterns of nations and the maintenance of the bond between generations, reflects the characteristics of almost every society from past to present through its roles and functions. In this respect, the effectiveness and perception of the family in society varies from one society to another. The family, which is the basic unit of society, is a sacred institution where love, respect, tolerance and similar human and moral values, traditions, customs, language, religion and other characteristics are experienced and passed on to future generations (see the Court’s judgment no. E. 2009/85, K. 2011/49, 21 October 2011).
14. Article 41 of the Constitution, where family is defined as the foundation of the Turkish society, points to the importance of the family for the individual and the society and imposes duties on the State to make the necessary arrangements and establish the necessary organization for the protection of the family.
15. Furthermore, Article 16 of the Universal Declaration of Human Rights and Article 10 of the International Covenant on Economic, Social and Cultural Rights, which are among the basic instruments of international law, state that the family is the natural and fundamental group unit of society and is entitled to protection by the State. It is acknowledged in Article 8 of the European Convention on Human Rights that everyone has the right to respect for family life.
16. The contested provision ensures the transfer of surname used as the family name from generation to generation, thus securing the maintenance of the unity and integrity of the family, which is the foundation of the Turkish society.
17. Despite being among the personal rights, surname should not be considered to be certainly exempt from any interference. It is clear that the legislator has a margin of appreciation to interfere with the use of surname in pursuance of public interest and public order requirements, provided that it complies with the Constitution.
18. The European Court of Human Rights has also examined the applications concerning the use of surnames under the principle of “protection of private and family life” enshrined in Article 8 of the European Convention on Human Rights. In its judgments, the European Court of Human Rights stated that the possibility of changing surnames may be subject to legal restrictions in pursuance of the public interest, such as the complete and accurate registration of the population, the importance attached to the stability of family names, personal identification or the establishment of links between those bearing a certain name and a certain family; and that the domestic legislator has a margin of appreciation in designating such restrictions in consideration of the historical and political structure of its own state (see the Court’s judgment no. E.2009 /85, K.2011/49, 21 October 2011).
19. Therefore, there is nothing contrary to the rule of law and the principle of equality for the legislator to exercise its margin of appreciation concerning the family surname in a way to give priority to one of the spouses due to certain obligations required by the public interest and public order, notably the maintenance of family unity and integrity and the strengthening of family ties. Moreover, the contested provision also enables the striking of a fair balance between the personal rights and the public interest by stating that the married woman is entitled to bear her maiden name in front of her husband’s surname upon her request (see the Court’s judgment no. E.2009/85, K.2011/49, 21 October 2011).
20. It should also be noted that the argument that the bearing of the husband’s surname by the wife after marriage leads to a difference in treatment on ground of sex is not reasonable. That is because the legislator has deemed necessary for individuals to bear a surname, and in this context, it has exercised its margin of appreciation in favour of the husband and designated the method specified in the contested provision. Moreover, as also accepted by the majority, the particular circumstances of every situation and position may necessitate the application of different rules for some individuals or communities. Accordingly, the priority given to the husband’s surname by the legislator, within the scope of its margin of appreciation, as the family surname cannot be said to be in breach of the principle of equality.
21. For these reasons, we consider that the request for annulment of the contested provision should have been dismissed as it is indeed constitutional.
DISSENTING OPINION OF JUSTICE MUAMMER TOPAL
I dissented from the majority’s decision whereby the first sentence of Article 187 of Law no. 4721 was annulled for being contrary to Article 10 of the Constitution.
The purpose of the principle of equality set forth in Article 10 of the Constitution is to ensure that those who are in the same legal status are subjected to the same treatment under the law and to prevent discrimination and privileges against persons before the law. This principle prohibits the breach of equality before the law by applying different rules to certain individuals and communities in the same situation. This principle envisages not de facto but de jure equality. Equality before the law does not mean that everyone is subject to the same rules in every respect. The particular circumstances of their situations and positions may necessitate the application of different rules for some individuals or communities. In the event that the same legal situations are subject to the same rules and different legal situations are subject to different rules, then the principle of equality enshrined in the Constitution will not be breached.
In the paragraph added, by Law no. 5170 and dated 7 May 2004, to Article 10 of the Turkish Constitution no. 2709 and dated 7 November 1982 and formulated just under the first paragraph thereof, it is set forth “Men and women have equal rights. The State has the obligation to ensure that this equality exists in practice.”
As being human beings, individuals have inherent value and dignity. This is a natural right. This very right entails that no discrimination can be made between individuals on the basis of any quality or criteria. Nor can there be any distinction between individuals in terms of the application of the laws. One of the foundations of equality between individuals is thus the principle of equality before the law. The organs and administrative authorities of the State must carry out all State activities without making any distinction among individuals.
Article 12 of the Constitution sets forth “Everyone possesses inherent fundamental rights and freedoms, which are inviolable and inalienable. The fundamental rights and freedoms also comprise the duties and responsibilities of the individual to the society, his/her family and other individuals”. As it is clearly understood from the wording of the provision, the constitution-maker, while equipping the person with fundamental rights and freedoms, has emphasized that these rights and freedoms cannot be considered separately from the duties and responsibilities of the person towards the society, his/her family and other persons. In this sense, it is laid down in Article 17 of the Constitution that “Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence” and in Article 41 thereof that “Family is the foundation of the Turkish society and based on the equality between the spouses. The State shall take the necessary measures and establish the necessary organization to protect peace and welfare of the family, especially mother and children, and to ensure the instruction of family planning and its practice.”
Article 12 of the Constitution defines the nature of fundamental rights and freedoms, and the first paragraph of this provision emphasises that the fundamental rights and freedoms are not a “favour” offered by the State but constitute an inviolable, inalienable and indispensable element of personality. The State is obliged, in principle, not to interfere in this area dedicated to the individual, and not to encroach within the boundaries of this private sphere.
Article 17 of the Constitution protects the right to life, as well as the right to protect and improve the corporeal and spiritual existence of individuals. It is clear that these two rights constitute a whole and complement one other.
Article 41 of the Constitution stipulates that the family is the foundation of Turkish society and based on equality between spouses. In pursuance of this provision, policies to that end have been developed in Türkiye, and important steps have been taken by adopting a discourse in support of positive discrimination towards women.
Surname is a name that serves to distinguish members of a family from other members of the same family and is passed down from generation to generation. Surname, which is the most important element in determining the identity of a person, is an inalienable and non-transferable personal right that is firmly attached to the person. In addition, according to Article 1 of the Surname Law No. 2525, which states “Every Turk is obliged to bear his surname along with his own name”, it is an obligation imposed on individuals to bear a surname. Surname, which is used as the synonym of the family name in Turkish law, also serves for establishing the identity of the person, as well as identifying the family and lineage and distinguishing the person from the members of other families. Due to these functions, the legislator envisages the use of surnames as a rule through statutory arrangements for reasons such as ensuring order and convenience in records of civil registry, preventing confusion in official documents, determining lineage and protecting the family (see the Court’s decision no. E.2009/85, K.2011/49, 21/10/2011).
It appears that the contested provision, “A woman takes her husband’s surname upon marriage”, is intended to serve the public interest and requirements of public order such as the protection of family unity and the strengthening of family ties, ensuring order and convenience in records of civil registry, preventing confusion in official documents and determining lineage.
The family, which ensures the transmission of the distinctive characteristics, value judgments, beliefs and thought patterns of nations and the maintenance of the bond between generations, reflects the characteristics of almost every society from past to present through its roles and functions. In this respect, the effectiveness and perception of the family in society varies from one society to another. The family, which is the basic unit of society, is a sacred institution where love, respect, tolerance and similar human and moral values, traditions, customs, language, religion and other characteristics are experienced and passed on to future generations (see the Court’s judgment no. E. 2009/85, K. 2011/49, 21 October 2011).
Article 41 of the Constitution, where family is defined as the foundation of the Turkish society, points to the importance of the family for the individual and the society and imposes duties on the State to make the necessary arrangements and establish the necessary organization for the protection of the family. Furthermore, Article 16 of the Universal Declaration of Human Rights and Article 10 of the International Covenant on Economic, Social and Cultural Rights, which are among the basic instruments of international law, state that the family is the natural and fundamental group unit of society and is entitled to protection by the State. It is acknowledged in Article 8 of the European Convention on Human Rights that everyone has the right to respect for family life.
The contested provision ensures the transmission of surname used as the family name from generation to generation, thus securing the maintenance of the unity and integrity of the family, which is the foundation of the Turkish society.
Despite being among the personal rights, surname should not be considered to be certainly exempt from any interference. It is clear that the legislator has a margin of appreciation to interfere with the use of the surname in pursuance of public interest and public order requirements, provided that it complies with the Constitution.
The European Court of Human Rights has also examined the applications concerning the use of surnames under the principle of “protection of private and family life” enshrined in Article 8 of the European Convention on Human Rights. In its judgments, the European Court of Human Rights stated that the possibility of changing surnames may be subject to legal restrictions in pursuance of the public interest, such as the complete and accurate registration of the population, the importance attached to the stability of family names, personal identification or the establishment of links between those bearing a certain name and a certain family; and that the domestic legislator has a margin of appreciation in designating such restrictions in consideration of the historical and political structure of its own state.
In this sense, there is nothing contrary to the rule of law and the principle of equality for the legislator to exercise its margin of appreciation concerning the family surname in a way to give priority to one of the spouses due to certain obligations required by the public interest and public order, notably the maintenance of family unity and integrity and the strengthening of family ties. Moreover, the contested provision also enables the striking of a fair balance between the personal rights and the public interest by stating that the married woman is entitled to bear her maiden name in front of her husband’s surname upon her request.
In order for the State to ensure the fulfilment of the equality stipulated in Article 10 of the Constitution within the framework of the annulled Law, it must determine the exact meaning of the “surname” for the society as well as observe the balance between the right to protect and improve one’s corporeal and spiritual existence and the purpose of ensuring the unity of the family, which is considered as the foundation of Turkish society. In this context, it is necessary to dwell on the perception by the society of the phrase “... based on the equality between the spouses” laid down in Article 41.
Although men and women are equal as human beings, it is not possible to argue that they are indeed the same in consideration of the differences resulting from gender. The main element brought forward by the modern world is equality. The corresponding element in the Turkish culture is equivalence and complementarity. Women and men are equivalent both biologically and in terms of their sociocultural positions/roles.
In the modern world, it has been argued that there is an unequal structure based on male domination in society and the family; that the power of masculinity is used as a tool of exploitation and violence against women; that men oppress and devalue women and condemn them to the home,; that woman becomes a model serving men throughout the historical process, which has been also a result of the classical culture of obedience that has turned into slavery; that sexist and biological discrimination has come into prominence; and that women’s labour is being exploited. The rebellion triggered and motivated by these arguments has had an impact all over the world, and the idea of “equality between women and men” has been offered as a solution to the aforementioned problems. This idea has been further strengthened through the statutory regulations introduced to that end. In pursuance of the provision laid down in Article 41 of the Constitution, Türkiye has adopted policies in this regard, and important steps have been taken by adopting a discourse in support of positive discrimination towards women.
The modern world has embraced the idea that a good relationship in the family may be achieved through a relationship of equals where each party has equal rights and obligations. This idea is based on the belief that equality will be effective in ensuring that the parties treat each other with respect and wish what’s best for each other.
In line with the above-mentioned arguments, it can be argued that inequality between men and women as a problem is based on the classical division of tasks where the man is responsible for the household and the woman is responsible for housework; that such a division of tasks is unequal; and what underlies this inequality is the common understanding that men and women should be responsible for different areas.
As a result, the anatomical, physiological, psychological differences as well as difference on ground of sex between men and women make equality impossible also in social terms. In short, there is structural inequality between women and men as a reality of creation. This situation is seen as an obstacle to the equality of women and men in terms of their positions in society in general. Therefore, despite being put forward as a dogmatic value that must be accepted without any discussion on it, the equality between women and men in the family is one of the modern superstitions, which is far from ensuring peace, justice and happiness in the family and society.
Therefore, it can be said that the value that determines the position of men and women is equivalence and complementarity. This is ensured by the fact that men and women have certain advantages over each other.
Equivalence refers to the value and weight of two beings in the eyes of the other with their existing differences and characteristics. This positioning of men and women vis-à-vis each other is both more in line with the reality of nature and more meaningful and consistent than the idea of equality imposed by the modern world. That is because in equality, two things are two halves of a whole, having the same characteristics. And one can be substituted for the other. In this sense, equivalence is different from equality. No matter how valuable and important a human being is for himself/herself, his/her real value and how meaningful he/she is, are determined by his/her difference and accordingly his/her interaction with his/ her environment, his/her relationship, the need for him/her and the interest of others in him or her.
As a result, the questions such as “who is more important, women or men?” or “who is superior, women or men?” are meaningless, virtual and artificial. Women and men are generally equal before the law, but their equivalence is at the forefront given their roles in the society.
The married partners may determine whose surname will be used as the family surname on the basis of their roles in the society. As also stated in the decision reached by the majority, the practice whereby the woman bears her husband’s surname after marriage is not the sole option that enables the family to have a common surname. In this context, spouses may be provided with the opportunity to choose any of their surnames, or to choose any other name as a common surname for the family, or to have a derivative surname formed as a combination of their surnames prior to marriage. However, this option should be decided by the legislator in consideration of the demands of the society (including the judgments finding a violation in cases regarding “surname” in the field of individual application). It is not reasonable to steer social demands through judicial decisions. Social demands should emerge in their natural environment in parallel to the developments and transitions that the society undergoes.
We should also mention the judgments where the Court has found a violation in the cases with respect to “surname” through individual application mechanism. These judgments are considered to be constitutional for being in pursuance of the right to protect and improve one’s corporeal and spiritual existence.
It should also be noted that the argument that the bearing of the husband’s surname by the wife after marriage leads to a difference in treatment on ground of sex is not reasonable. The particular circumstances of every situation and position may necessitate the application of different rules for some individuals or communities. Accordingly, the priority given by the legislator, within the scope of its margin of appreciation, to the husband’s surname as the family surname is not in breach of the principle of equality.
For these reasons, I dissented from the majority’s view as I consider that the contested provision is not contrary to Article 10 of the Constitution.