The compulsory change that the institution of marriage brings about in a woman’s surname has for many years remained at the centre of debate, both in terms of the principle of equality and in terms of personality rights. The annulment decision handed down by the Constitutional Court marked a turning point in that debate, and since 28.01.2024 women have been able to bear their own maiden surname alone. By opening the way for the choice as to the surname after marriage to be made freely, the decision has secured a notable gain in terms of gender equality.
The source of the obligation was Article 187 of the Turkish Civil Code No. 4721; that provision imposed on a woman who married the duty to bear her husband’s surname. By its decision dated 22.02.2023, docket No. 2022/155, decision No. 2023/38, the Constitutional Court removed that article, and the requirement to take the spouse’s surname upon marriage thereby left the legal order. 28.01.2024, the date on which the annulment took effect, is the point of rupture taken as a basis in practice.
The fact that the article has been annulled does not prevent a woman from bearing her husband’s surname. Where a choice to that effect is expressed, the woman may continue to use her husband’s surname.
The Concept of a Surname and the General Framework Concerning a Woman’s Surname
The Turkish Language Institution defines the concept of a name as "a word serving to express, describe, explain or convey a person or a thing; a name, an appellation". A forename and a surname are today regarded as an inseparable component of personality; they are the element of identity that enables an individual to be distinguished from others, to be recognised and to be individualised within society. A surname carries a function beyond this: it is the family name that follows a person’s own forename and indicates their belonging to the family of which they are a member.
The fact that a woman’s surname also changes with every change in her civil status gives rise to numerous difficulties and to confusion in practice. The obligation to renew documents such as an identity card, a driving licence and a passport in the event of divorce or marriage is a concrete example of this. Set against the position of a man, who as a rule bears throughout his life the surname acquired at birth, leaving a woman obliged to change her surname again and again is incompatible with the principle of equality.
The Problem Arising in Respect of a Woman’s Surname
For citizens of the Republic of Türkiye the use of a surname is not merely a right but also an institution giving rise to a number of obligations, and it is protected by statute. Under the rules in force, a male individual bears his family’s surname from the moment of his birth, save where he is adopted or where a court orders a change on justified grounds. The confusion arises essentially in respect of a woman’s surname. This right, which is strictly personal, non-transferable, incapable of waiver and not susceptible to renunciation, is subject to change in a variety of situations where the person concerned is a woman.
Taking the Spouse’s Surname upon Marriage
Article 187 of the Turkish Civil Code No. 4721, annulled by the Constitutional Court, imposed on a woman who married the duty to take her spouse’s surname. That said, the article also afforded an optional facility: a woman who applied to the marriage registrar or to the civil registry office was able to bear her pre-marriage surname together with her spouse’s surname. The use of two surnames together was thus possible.
Following the annulment decision, with effect from 28.01.2024, the obligation of a woman who marries to take her spouse’s surname has been removed. As a result of that decision, a woman has acquired the right to bear her maiden surname alone.
A woman who prefers to be known solely by her own maiden surname after marriage must express that intention by completing the surname form obtained from the registration desk at the time of the marriage application. Where no such declaration is made, the woman will have taken her husband’s surname at the time the marriage is recorded.
Bearing Both Surnames Together
It is possible for a woman to use both her maiden surname and her spouse’s surname together after the marriage. This requires the completion of the surname form to be obtained from the registration desk during the marriage application made to the marriage office, and the declaration of the request by that means.
The administrative route is open to a woman who wishes to bear her own surname alongside her spouse’s surname after marriage. The application may be made through the e-Devlet portal; it may equally be directed, by petition, to the Directorate of Population and Citizenship Affairs together with one of the documents standing in place of an identity document, such as a Republic of Türkiye identity card, a temporary identity document, an identity card, an international family booklet, a driving licence or a passport.
Bearing the Maiden Surname Alone
Leaving women obliged to take their husbands’ surname upon marriage is a practice at odds with gender equality and therefore with human rights. The Constitutional Court’s recent annulment decision represents an important step taken towards bringing that inequality to an end. The decision, which took effect on 28.01.2024, has removed the legal obstacles to women bearing only their maiden surname.
The Constitutional Court’s Annulment Decision
The Position before the Annulment Decision
It was not entirely impossible, even before the annulment decision, for a woman to bear only her maiden surname after marriage. In a 2015 decision of the Assembly of Civil Chambers of the Court of Cassation, referring to the principle of equality, it was accepted that a woman could use only her own maiden surname while the marriage union subsisted, without having to show any further valid reason (Court of Cassation, Assembly of Civil Chambers, docket No. 2014/889, decision No. 2015/2011, decision dated 30.09.2015). Following that case law, a woman became able to use her pre-marriage surname by way of an action brought before the Family Court and a judgment obtained from it.
In the period preceding that decision of the Assembly of Civil Chambers the picture was narrower: a woman’s ability to bear only her maiden surname depended on a decision of the Constitutional Court. At that time the right was recognised only to a limited extent and could be exercised solely in line with decisions given by the Constitutional Court upon individual applications.
The Position after the Annulment Decision
By its decision dated 22.02.2023, docket No. 2022/155, decision No. 2023/38, the Constitutional Court annulled Article 187 of the Turkish Civil Code No. 4721. The text of the annulled provision read as follows:
Turkish Civil Code No. 4721, Art. 187 (annulled provision)
"A woman takes her husband’s surname upon marriage; she may, however, by written application to the marriage registrar or subsequently to the civil registry administration, also use her previous surname in front of her husband’s surname. A woman who previously used two surnames may benefit from this right in respect of one surname only."
Within the framework of that provision, a woman who married could bear her spouse’s surname alone, and could equally use her pre-marriage maiden surname together with her spouse’s surname. With the annulment decision, as from 28.01.2024, the rule which prevented a woman from using only her pre-marriage surname and which in that respect was contrary to the European Convention on Human Rights and to the Constitution ceased to have effect.
After the decision, the only step to be taken by women wishing to continue bearing their maiden surname after marriage is to make a declaration by completing the surname form obtained from the registration desk during the marriage application made to the marriage office. This route does not call for an action to be brought before a court. Women who marry are thus able to access the right to use their maiden surname directly and more easily.
The Position of Women Married before the Effective Date
The annulment of Article 187 of the Turkish Civil Code No. 4721 by the Constitutional Court’s decision dated 22.02.2023 has brought about a fundamental change in the use of surnames after marriage. That said, the position presents a more intricate picture for women who married before 28.01.2024, the date on which the rule took effect, and who bear their spouse’s surname or both surnames together. There is as yet no statutory or regulatory provision directly governing the case of women in that position who wish to use only their own maiden surname.
Under the current legal picture, pursuant to Article 24 of the Regulation on the Implementation of Civil Registry Services, a married woman must first obtain a court judgment to that effect in order to be able to bear only her maiden surname. Once the judgment has been obtained, the change of surname may be effected by applying to the Directorate of Population and Citizenship Affairs.
How May a Newly Married Woman Use Her Surname Alone?
By the Constitutional Court’s decision dated 22.02.2023, docket No. 2022/155, decision No. 2023/38, Article 187 of the Turkish Civil Code No. 4721 was annulled; women who marry have thereby obtained the right to bear their own surname alone without being obliged to take their spouses’ surname.
By contrast, Article 24 of the Regulation No. 2505 on the Implementation of Civil Registry Services has not yet been updated in line with the annulment decision. For that reason a great many civil registry offices are still able to refuse requests by women to use only their own surname.
Where the civil registry office refuses a woman’s request to use her own surname after marriage, the course to be followed is to obtain a judgment on the change of surname by applying to the court. Where the court gives a favourable judgment, a fresh application is made to the civil registry office and the transaction is completed on the basis of that judgment.
In brief:
- The first step is administrative: a woman who wishes to use her own surname after marriage may apply directly to the civil registry office.
- Where the request is refused at the administrative stage, the right may be exercised by way of a court judgment.
- Keeping track of the current state of the legislation on the use of surnames matters for the correct conduct of the process.
Those wishing to obtain legal support in this process may protect their rights more effectively by taking advice from a lawyer practising in the field of family law.
The Judicial Route for Using the Surname Alone
The judicial route is open to women who were left obliged, by reason of marriage, to take their spouse’s surname under the legislation in force before the Constitutional Court’s annulment decision, and to women whose request to use only their own surname when marrying was refused and who on that account entered into a legal dispute. Those persons may seek the annulment of their spouse’s surname by an action brought naming the Civil Registry Office and their spouse as respondents. Where the action is upheld, the woman acquires the right to bear her pre-marriage surname (maiden surname) alone.
Court with Subject-Matter and Territorial Jurisdiction
Court with subject-matter jurisdiction: The judgment to be given at the conclusion of the proceedings may be reflected in the family registers by way of amendments to the marriage records. Because of the effect it produces in the context of marriage, the dispute is characterised as a significant matter and is regarded as falling within the remit of the family courts.
Court with territorial jurisdiction: Pursuant to Article 167 of the Turkish Civil Code No. 4721, jurisdiction lies with the court of the place of residence of one of the spouses, or with the court of the place where they resided together within the last six months preceding the action.
Equality and Human Rights Dimensions of the Obligation to Take the Spouse’s Surname
Requiring women who marry to bear their husbands’ surname is contrary to gender equality and therefore to human rights. The Constitutional Court’s recent annulment decision is an important step taken towards putting an end to that unequal practice. The decision, which entered into force on 28.01.2024, has removed the legal obstacles to women using only their own maiden surname.
The traditional assumption that a woman should take her husband’s surname on marriage constitutes a serious violation in terms of gender equality. While settled case law accepts that this system may give rise to certain difficulties in the keeping of birth, marriage and death records, it has emphasised that it is reasonable for society to bear certain burdens so that individuals may preserve their dignity and their reputation through the name they have chosen for themselves. That approach demonstrates that a modern society is bound to recognise and to respect the rights and freedoms of the individual.
International human rights instruments impose on States the obligation to eliminate discrimination on grounds of sex. Leaving a woman obliged to change her surname by reason of marriage is incompatible with that obligation and is a manifestation of discrimination on grounds of sex. A woman who has to renew basic documents such as her identity card, passport and driving licence every time her civil status changes suffers a loss of both time and financial resources. In addition, the fact that personal attainments such as academic work and professional achievements continue to be associated with the husband’s surname renders the woman’s identity and labour invisible.
There is no objective and reasonable basis for leaving married women obliged to bear their husbands’ surname. That a man may continue to preserve his own surname after marriage while a woman is deprived of the same facility is a plain instance of discrimination on grounds of sex. Article 14 of the Constitution prohibits differential treatment on the ground of sex, and that principle must be applied equally as regards women and men.
In conclusion, compelling a woman to take her husband’s surname conflicts with the principle of gender equality and with human rights. The Constitutional Court’s annulment decision is an important advance that makes it possible for women to be freed from that unequal practice and to preserve their own identity. The decision amounts to a major step towards enabling women to carry on their identity and their personal achievements more freely upon marriage.
Independent Legal Assessment
Although the normative framework has become clear with the entry into force of the annulment decision, the real difficulty in practice stems from the fact that the secondary legislation has not yet been adapted to the decision. For as long as Article 24 of the Regulation on the Implementation of Civil Registry Services remains in force, the possibility of administrative applications being refused and of the dispute being carried to the family court will continue. For that reason, correctly anticipating at the very outset whether the request can be concluded by the administrative route or by way of an action is decisive in terms of both time and cost.
Furthermore, the distinction between marriages contracted before and after 28.01.2024 means that similar requests are subject to different procedures. Applications made without first establishing which period’s regime the particular case falls under are more often than not fruitless.
In practice we recommend that particular regard be had to the following points:
- Determining at the outset whether the date of the marriage falls before or after 28.01.2024
- Completing the surname form at the marriage application stage, and being aware that where no declaration is made the spouse’s surname is acquired automatically
- Obtaining the reasons for refusal in writing where the administrative application is refused, and submitting them to the case file as evidence
- Bringing the action before the family court, naming the Civil Registry Office and the spouse as opposing parties
- As regards territorial jurisdiction, choosing whichever of the two options in Turkish Civil Code No. 4721, Art. 167 is appropriate to the particular case
- Bearing in mind that a court judgment is not required for a request to use both surnames together and that an administrative application is sufficient
Independent Legal provides advisory services and conducts litigation in disputes concerning personal status and civil registry records, from the administrative application stage through to the conclusion of the court process.