This article deals with the abrogation of the obligation of a woman to take her husband's surname upon marriage within the scope of Article 187 of the Turkish Civil Code by the Constitutional Court's decision dated 22.02.2023 and numbered 2022/155E, 2023/38K.
According to the first sentence of the Article 187 of the Code, a woman shall take her husband's surname upon marriage, but she may also use her previous surname in front of her husband's surname upon her written application to the marriage officer or the civil registry office.
In other words, the woman's use of her maiden name was conditional upon her request to use her maiden name before her husband's surname.
According to the article subject to objection, it is not possible for a woman to use her maiden name alone after marriage.
A. Constitutional Court's Decision
Article 20 of the Constitution states that everyone has the right to respect for their private life. In this respect, bearing the surname is not an obligation but also a right within the scope of the Constitutional Court's decision.
In the first paragraph of Article 41 of the Constitution, which stipulates that the family is the foundation of Turkish society, the phrase "and is based on equality between spouses" has been added. In this respect, it has been concluded that the principle of equality has been violated since the different treatment envisaged by the rule between men and women in the context of using the surname before marriage alone after marriage is not based on an objective and reasonable basis.
Within the scope of the decision of the Constitutional Court, it was stated that the use of the surname of the woman after marriage only in front of the surname of her husband is not the only way to ensure the public interest. The woman taking the surname of her husband after marriage is not the only option that makes it possible for the family to have a common surname. In this context, it is possible to allow the spouses to determine the surname of one of them or a name other than this as a common surname, or that the common surname consists of a combination of the surnames of the spouses before marriage.
With the aforementioned Constitutional Court decision, the obligation for women to use their husband's surname after marriage has been abolished.
B. The Question of the Day of Entry into Force
Since the legal gap that will arise due to the annulment of the first and second sentences of Article 187 of the Law No. 4721 is deemed to violate the public interest, it has been deemed appropriate for the provisions regarding the annulment of the said sentences to enter into force nine months after the publication of the decision in the Official Gazette.
You have been informed about the Constitutional Court's decision regarding the annulment of the sentence of Article 187 of the Turkish Civil Code and we kindly ask you to contact us if you have any questions regarding the subject.
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