Constitutionality Review

Contested Provision

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.

Ground for the Request for Annulment

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 (“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 unconstitutional.

The Court’s Assessment

The entitlement to bear surname, as a part of personality, is not only an obligation but also constitutes a right within the meaning of Article 20 of the Constitution. In the same vein, the ECHR has also acknowledged that this right falls within the scope of Article 8 of the European Convention on Human Rights. Through the constitutional amendments introduced over the course of time, particular emphasis was put on the need to duly ensure equality between women and men for securing the materialisation of the principle of equality before the law, and also the importance attached by the constitution-maker to the aspect of this principle between spouses was explicitly put forth. In this regard, it has been concluded that woman and man are in a comparably similar situation as regards their entitlement to bear the surname prior to marriage also after getting married. Although man is entitled to bear his own surname alone after getting married, the contested provision stipulates that woman shall be allowed to bear her maiden name after marriage only in front of her husband’s surname. Therefore, the provision causes an explicit difference in treatment on ground of sex between spouses who are in a comparably similar situation.

Both the ECHR and the Court have received several applications whereby the applicants raised an allegation that there had been a violation due to their inability to bear their maiden name also after marriage. In this regard, the ECHR held that the inability of the married woman to bear her maiden name alone after marriage constituted a violation of Article 14 of the Constitution taken in conjunction with Article 8 thereof. In similar cases before it, the Court held that as the international treaties envisaging that man and woman shall have equal rights as regards the use of surnames after marriage and the domestic laws that necessitate the married woman to bear her husband’s surname after marriage embody different provisions on the same matter, the provisions of the international treaties shall prevail pursuant to Article 90 § 5 of the Constitution. The Court accordingly concluded that the application of Article 187 of Law no. 4721 in the applicants’ cases was incompatible with the principle of legality and gave rise to a violation. In the same vein, the Court of Cassation, having established significant jurisprudence with respect to the cases regarding maiden name, has also acknowledged that in disputes arising from the woman’s inability to bear her maiden name alone after marriage, the provisions of the international treaties will prevail in accordance with Article 90 § 5 of the Constitution. However, it is clear that ensuring woman and man to enjoy equal rights must be primarily secured through legislation, as the primary source of law, and the administrative practices must be in pursuance of the guarantees laid down in the legislation; and that the jurisprudence developed by judicial bodies cannot be considered to suffice per se to afford the necessary guarantees in this regard. 

The public authorities enjoy a certain margin of appreciation in assessing whether the difference in treatment between those in a similar situation has an objective and reasonable justification or determining the permissible extent of difference in treatment. However, in case of any discrimination based on sex, the margin of appreciation afforded to the public authorities is narrower. Moreover, given the importance attached by the constitution-maker to the aspect of the equality principle between spouses, the law-maker explicitly has a very limited margin of appreciation with respect to difference in treatment between spouses on ground of sex.

Undoubtedly, the prevention of any confusion in records of civil registry and the facilitation of sound establishment of paternity serve the aim of public interest. However, it is unreasonable to consider that the sole means of achieving the public interest in question is to enable the woman to bear her maiden name after marriage in front of her husband’s surname. Therefore, the aim of ensuring order and convenience in records of civil registry cannot be considered as a reasonable ground to justify the difference in treatment resulting from the contested provision. Besides, the practice whereby the woman bears her husband’s surname 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. It is also possible to allow the spouses to have a derivative surname formed as a combination of their surnames prior to marriage. What is more, it is difficult to say that common surname is a compulsory element for the maintenance of family ties and that if the spouses do not have a common surname, family ties can in no way be preserved. Accordingly, the aim of maintaining and strengthening family ties cannot be considered as a reasonable justification for the difference in treatment resulting from the contested provision.

In the light of these considerations, it has been concluded that the impugned difference in treatment between woman and man as regards their entitlement to bear their own surname prior to marriage alone also after marriage falls foul of the equality principle.

Consequently, the contested provision has been found unconstitutional and therefore annulled.