Whether a divorced woman may continue to bear her former husband’s surname is made subject to two conditions under Art. 173 of the Turkish Civil Code No. 4721: that the woman has an interest worthy of protection in that use, and that the situation causes no harm to the former husband. That request may be raised within divorce proceedings already pending, or it may form the subject of a separate action brought before the Family Courts.
Where a woman whose surname changed on marriage is obliged to give up that surname upon divorce, the consequence in practice is not confined to a change in her identity details. Bearing a different surname from her children, or the erosion of a professional recognition built up over years, are the principal difficulties to which that change gives rise. It is precisely for this reason that the legislator has afforded an exceptional possibility to a woman who has a legitimate benefit in retaining the surname.
Below we address the legislative framework of the subject, the conditions required for permission to be granted, the procedure to be followed and the legal remedies available to the former husband.
The Obligation of a Married Woman to Take Her Husband’s Surname
For many years in Turkish law it was applied as an obligation that a woman taking a husband would take his surname. By its decision of 22.02.2023 the Constitutional Court annulled Article 187 of the Turkish Civil Code No. 4721 and that obligation ceased to exist. As of 28.01.2024 women are under no obligation to bear their husbands’ surname upon marriage.
Under the new position a woman may, upon marriage, use her maiden surname alone. If she prefers to bear her own surname alongside that of her husband, it is sufficient for her to state that intention in the relevant form completed at the time of the marriage application. Where no such request is put forward, the woman may continue to take her husband’s surname.
As for women who married before the annulment decision and who still use their husband’s surname, no separate transitional provision has been laid down in the legislation. Among women in that position, only those who prefer to revert to their maiden surname need to apply to the court.
The Rule of Reverting to the Maiden Surname on Divorce
Article 173 of the Turkish Civil Code No. 4721 provides that a divorced woman retains the personal status she acquired by marriage, but that as a rule she reverts to the surname she bore before the marriage. That reversion occurs as of right once the divorce judgment becomes final; no separate request by the woman is required. When the family court notifies the judgment to the civil registry office, the surname entry is restored to its former state.
Alongside this, it is legally possible in certain situations to continue bearing the former husband’s surname. If the woman can demonstrate that use of that surname confers an appreciable benefit on her and will not cause the former husband any harm, she may obtain permission from the court to that effect.
Use by a Divorced Woman of Her Former Husband’s Surname
Reverting to the maiden surname following divorce is the statutory rule; retention of the former husband’s surname is the exception to that rule. Although Art. 173 of the Turkish Civil Code No. 4721 provides that personal status is retained but that, as regards the surname, the position prior to the marriage is restored, permission to bear the former husband’s surname may be granted by court order where certain conditions are satisfied.
Using the Surname Acquired by Marriage on Its Own
Since the rule is reversion to the maiden surname on divorce, in order for the former husband’s surname to be borne on its own the woman must demonstrate a legitimate interest. Where that proof is furnished, the surname in question may continue to be used by court order.
The grounds that may be put before the court include the following:
- That the change of surname produces adverse consequences in the woman’s personal or professional life,
- That she wishes to continue bearing a surname in common with her children,
- That the recognition acquired within her professional circle or in her social relations should not be lost.
The court examines the request; if it concludes that the use causes no harm as regards the former husband, it may grant permission. The former husband’s ability to challenge that decision is reserved. Upon an application by a former husband who can prove that use of the surname causes him harm in a professional or social sense, the court may revoke the permission granted.
Our detailed assessment of the subject may be found in our article entitled Is It Possible for a Woman to Use the Surname She Bore Before Marriage?
Use Together with the Maiden Surname
It is also possible for a woman to wish, following the divorce, to bear her former husband’s surname together with her maiden surname. The same burden of proof applies to that request as well: it must be demonstrated before the court that the use is in her own interest and causes no harm to the former husband. If the request is found to be well founded, the woman obtains the right to bear both surnames together.
Special situation: If the woman has already obtained permission to bear the former husband’s surname on its own, no fresh action is needed in respect of a subsequent wish to add her maiden surname to it.
In that case the application may be made by two routes:
- By submitting a petition to the Directorate of Civil Registration and Citizenship Affairs together with an identity document (Turkish identity card, identity register booklet, passport and the like),
- Or electronically through the e-Government portal.
The change of surname may thus be completed by an administrative act, without the need for a judicial decision.
Conditions Required for Permission to Be Granted
Continuing to bear the former husband’s surname is not a right conferred on a divorced woman absolutely and without limit. Under Art. 173 of the Turkish Civil Code No. 4721, for that outcome to arise an application must be made to the court and it must be shown that certain conditions are satisfied.
The court expects the woman to prove both that the use in question serves her own interest and that it will cause no harm as regards the former husband. The decision is given by weighing the legal position of both parties together.
Proving the Interest
The woman must demonstrate that she has a benefit worthy of protection in bearing her former husband’s surname. The principal grounds relied on in practice are as follows:
- Recognition in working life: A woman who has pursued her professional career under her former husband’s surname and has become known by that name may seek the continuation of that use by demonstrating the adverse effect a change of surname would have on her career.
- Social standing: Social position, public recognition or professional reputation may make retention of the surname necessary. This ground carries particular weight for persons active in fields such as the arts or academia, or who are known to the public.
- A surname in common with the children: A mother and her children bearing different surnames may give rise to difficulties in the child’s school life and social environment. The woman may argue that a common surname will protect the social position of both herself and her children.
The Condition That the Former Husband Suffer No Harm
Secondly, the woman must demonstrate before the court that this use will not give rise to any harm as regards the former husband.
❌ The former husband’s reputation must not be damaged: Continuing to bear the surname must not adversely affect the former husband’s standing within society.
❌ It must not give rise to a social or economic loss: Exercising the right in bad faith against the former husband, and thereby harming his working life or social relations, cannot be accepted.
If the former husband asserts that he suffers harm from the use of the surname, the court assesses that allegation and, if it finds it well founded, may annul the right granted to the woman.
The Legal Process Concerning Use of the Former Husband’s Surname
The Action for Permission
A divorced woman’s request to continue bearing her former husband’s surname may be raised by two separate procedural routes:
- A request raised within the divorce proceedings: Where the intention to continue bearing that surname is notified to the court while the proceedings are pending, the request is examined and determined within the scope of the divorce file. Since the request is advanced while the proceedings are still under way, no statute of limitations arises here.
- A separate action brought after the divorce: A woman who wishes to bear that surname after the divorce judgment has been given must bring a separate action.
The second route is subject to a time limit. Under the Turkish Civil Code No. 4721 the action must be brought within 1 year of the divorce becoming final. Once that period has been missed, the possibility of applying to the court ceases to exist.
Surname Provisions in an Uncontested Divorce
In uncontested divorce files, the woman’s continued use of her former husband’s surname may be written into the divorce protocol as a clause.
- If a provision to that effect appears in the text, the judgment to be given affords the woman the possibility of bearing the surname in question directly.
- The court examines and determines the arrangement the parties have included in the protocol.
Courts with Subject-Matter and Territorial Jurisdiction
- Subject-matter jurisdiction: Requests concerning a woman’s use of the surname of the husband she has divorced, and actions directed at revoking that permission, arise out of family law and are as a rule heard and determined in the family courts.
- Territorial jurisdiction: The determination of the court with territorial jurisdiction varies according to the stage at which the request is raised.
If the request is raised together with the divorce action, the court with jurisdiction in the divorce action also has jurisdiction in respect of that request. Under Article 167 of the Turkish Civil Code No. 4721, jurisdiction lies with the court of the domicile of one of the spouses or with the court of the place where the spouses resided together during the last six months before the action was brought.
If the request is raised by a separate action after the divorce judgment, the court with territorial jurisdiction is the court of the place where the former husband, as respondent, is domiciled.
Does the Former Husband Have a Right to Object?
A woman’s continued use of her former husband’s surname produces a consequence that also directly affects the former husband’s legal position. For that reason the Turkish Civil Code No. 4721 has afforded the former husband the possibility of bringing an action for the revocation of the permission granted.
However, the former husband merely manifesting an intention to object produces no result. He must apply to the court and prove either that this use causes him harm or that the woman’s interest has now ceased to exist. Otherwise there is a high likelihood that the request will be dismissed.
The Conditions and Operation of the Objection
In order for the former husband to be able to challenge the woman’s use of the surname, he is expected to meet the following conditions:
- Demonstrating harm: The former husband must prove before the court that this use causes him harm in the nature of a social or economic loss or a loss of reputation. The harm in question may take the following forms.
- Loss of reputation: That the perception of the former husband in the eyes of society is adversely affected by reason of the surname continuing to be borne,
- Social or economic harm: That the woman acting publicly under the former husband’s surname has adverse repercussions for his working life or private life.
Cessation of the Woman’s Interest
The former husband may also argue that the use of the surname no longer confers any benefit on the woman and has become unnecessary.
- Remarriage: The fact that the woman has entered into a new marriage may indicate that the ground justifying her bearing the former husband’s surname has ceased to exist.
- A change in professional position: That the circumstances requiring the woman to use that surname in her working life no longer exist.
- Exercise of the right in bad faith: That the woman deliberately uses that surname with the aim of harming her former husband.
When May the Objection Action Be Brought?
- The former husband may apply to the court seeking revocation of the permission at any time following the divorce judgment.
- By contrast, where the application is excessively delayed, the court may dismiss the action on the ground of the statute of limitations or of abuse of right.
Frequently Asked Questions
Is it compulsory to take the husband’s surname on marriage?
In marriages contracted after 28.01.2024 there is no obligation for a woman to take her husband’s surname.
May a woman who does not wish to revert to her maiden surname after divorce continue to bear her husband’s surname?
The rule is that a woman reverts on divorce to the surname she bore before marriage. Alongside this, for a woman who proves that she has an interest in bearing the surname in question and that this will cause no harm to her former husband, the judge may order that the use continue after the divorce as well.
Must a woman using her former husband’s surname bring an action in order to revert to her maiden surname?
She need not. No court order is required for this step; it is sufficient to apply to the Directorate of Civil Registration and Citizenship Affairs by submitting a petition through the e-Government portal, or together with one of the documents serving in place of identification — the original Turkish identity card or temporary identity document, the identity register booklet, the international family booklet, a driving licence or a passport.
What must be done in order to use the former husband’s surname after divorce?
There are two routes: the request must either be conveyed to the court during the divorce proceedings, or it must form the subject of a separate action brought within 1 year following the judgment becoming final.
May the maiden surname also be borne alongside the former husband’s surname?
A woman who has obtained permission by court order to use her former husband’s surname and who bears that surname may also use her birth surname by a written application through the e-Government portal or to the Directorates of Civil Registration and Citizenship Affairs.
The Independent Legal Assessment
Although surname disputes are often regarded as claims without economic value, in practice they produce concrete consequences for professional identity, commercial reputation and the bond with the child. The choice whether to advance the request within the divorce proceedings or by a separate action brought afterwards is decisive both as regards the risk of missing a time limit and as regards the burden of proof. While a request raised within the divorce file does not run up against a time limit, one year passing after the judgment becomes final leads to an irremediable loss of right.
In setting the course for a concrete file it is appropriate to give priority to the following headings:
- Assessing, according to the stage the file has reached, whether the request can be advanced within the divorce action
- Documenting the date on which the divorce judgment became final, for the purposes of the start of the one-year period
- Supporting the claim of interest with concrete documents such as trade registry records, academic publications, diplomas or trade mark registrations
- Submitting custody and school records to the file where the ground relied on is a surname in common with the child
- Anticipating in advance the allegations of harm the former husband may advance and preparing evidence in rebuttal
- Writing the request into the protocol as an express clause in an uncontested divorce
Independent Legal provides advisory services and conducts litigation in actions concerning permission for, and revocation of permission for, the use of a surname after divorce.