With The Constitutional Court's decision numbered dated 22.03.2023 and numbered 2022/155 E. 2023/38 K. published in the Official Gazette dated 28.04.2023 and numbered 32174, it has been decided to annul Article 187 of the Turkish Civil Code numbered 4721 ("TCC") due to the contradiction with Article 10 of the Constitution of the Republic of Türkiye numbered 2709 ("Constitution").
The Istanbul 8th Family Court applied for the annulment of the said provision on the grounds that Article 187 of the TCC is contrary to Articles 2, 10, 17, 20, 90, and 153 of the Constitution.
Pursuant to the rule introduced by the provision of law, requested to be annulled:
i. The woman takes her husband's surname after marriage, ii. It is possible for a woman to use her birthname only after a written application to the relevant authorities, iii. Even in this case, using her birthname is only permitted preceding that of her husband's surname, iv. It is not possible for a woman to use her birthname solely.
The assessment made by the Constitutional Court is based on Article 10 of the Constitution, titled "Equality before the law." The second paragraph of the relevant article reads as follows: "Men and women have equal rights. However, the State is obligated to ensure this equality exists in practice. Measures taken for this purpose shall not be interpreted as contrary to the principle of equality."
The Constitutional Court stated that Article 10 of the Constitution applies to persons with the same legal status and underlined that the relevant article aims to ensure that persons in the same situation are subject to the same treatment before the law. In this context, it was concluded that men and women are in a similar position regarding using the surname before and after marriage.
The Constitutional Court qualified the provision subject to the objection as a different treatment between spouses on the basis of gender. It was concluded that the relevant provision violates the principle of equality since it regulates that only women will receive a new surname upon marriage and allows men to continue to use their birthname solely after marriage. Accordingly, it was decided to annul the provision due to its violation of Article 10 of the Constitution.
The decision mentioned that there had been many individual applications to the Constitutional Court and the European Court of Human Rights. It was underlined that in all of these individual applications, it was concluded that there was a violation of rights.
In the decision, the Constitutional Court considered whether there was any reasonable ground for the different treatment, assuming that the related provision of the law caused discrimination between men and women.
The Constitutional Court assessed the reasonable ground from various points, such as preventing confusion in the civil registry records, determining the family lineage correctly, and transferring the social values of the family to the next generations, and concluded that none of them could be accepted as a reasonable ground. It has been underlined that, at the point where technology has advanced, civil registration records can be kept through information systems, and individuals have Republic of Türkiye identity numbers in addition to their surnames.
On the other hand, the Constitutional Court stated that although having the same surname may preserve the family bond in terms of protecting and transmitting the social value of the family, it is not possible for the family to have a common surname only by the wife taking her husband's surname; both spouses can take each other's surname, and even a common surname can be agreed upon.
For the time being, the annulment of the provision above is only for ensuring that the woman is not obliged to take her husband's surname. However, the statement mentioned above in the Constitutional Court's decision suggests that legal regulations will regulate and clarify issues such as the spouses choosing a common surname and the husband choosing the woman's surname.
The Constitutional Court underlined that pursuant to the principle of equality, it should be possible for a woman to use her birthname without any judicial or administrative remedy. Here, it was emphasized that equality before the law should be ensured not through judicial remedies or applications to administrative authorities but through legal regulations themselves: "A woman should not have to bear any burden to use her birthname."
With the aforementioned Constitutional Court decision, Article 187 of the TCC No. 4721 was annulled on the grounds that it violates Article 10 of the Constitution titled "Equality before the Law." Therefore, with the annulment of the provision above the law, women will still be able to take their husbands' surnames, but this will result from a choice they make based on their free will.
The annulment decision will enter into force nine (9) months after the publication of the decision in the Official Gazette. The Constitutional Court justified this by stating that the annulment of the provision above would create a legal loophole. Therefore, it is expected that in the near future, as mentioned in the decision, regulations will be made on issues such as men and women choosing a common surname and spouses being able to take each other's surnames.