Issue of Woman’s Surname In Terms of Gender Equality Principles
1- INTRODUCTION
The name and last name are the inseparable part of an individual which identifies that person in social life. Name (First name), word or phrase used to differentiate individuals from other legal subjects. Surname (Last name); can be defined as a symbol that provides attachment to a certain family or makes it easier to differentiate people belonging to other families. [1] A surname is normally acquired by birth, but it can also be obtained through choice, marriage, adoption, administrative decision or court ruling. [2]
The Turkish legal order is binding on the issue of women’s surname. This article touches upon the regulations brought in Turkish Law in regard of women taking their husband’s surname, and further explains the international conventions also signed by Turkey that regulates fundamental rights and freedoms and various judicial rulings.
2- WOMAN’S SURNAME IN TURKISH LAW
Article 1 of the Surname Law numbered 2525 dated 21.06.1934 stipulates that “All Turks must bear their surnames in addition to their proper name”. Article 153 of the former Turkish Civil Code states that “women take the husband’s surname on marriage”. Pursuant to this article without the will of the parties, the husband’s surname is considered the “family surname”; accordingly a right, also an obligation, to take the husband’s surname was granted to women. [3]
The approach that attaches importance to the interests and surname of men is a reflection of the patriarchal family structure in the western world during the 19th and 20th centuries[4] and even though this regulation is seen to comply with social norms of the period, its undoubtedly a violation of the individual rights of women and with gender equality principles of the Constitution. [5]
The article was changed with the 1st article of Law on the amendment of the first paragraph of the 153th article of the Turkish Civil Code numbered 4248 and it was amended as; “women take the husband’s surname on marriage; with the written application to the register office or census bureau, women can use the maiden name in front of the husband’s surname. A woman formerly with two surnames, in order to use this right, can opt for only one.” [6]
Article 141 of Turkish Civil Code numbered 743 regarding divorce, that also has an impact on the surname of women, states that the mandatory rule; “After a divorce, a woman is free to keep her husband’s last name or revert back to her maiden name” gave women a right to choose. In 1990 this article was amended as; “After a divorce, a woman is free to keep her husband’s last name or revert back to her maiden name, If keeping the ex-husband’s surname is beneficial and that it causes no harm to the husband, the judge, upon request, can allow the woman to retain the husband’s surname. The husband can request the reversal of the decision if conditions change.” [7]
With the enactment of the Turkish Civil Code (“TCC”) numbered 4721 in 2002, article 153 which was amended by Law Numbered 4248, was transferred to the Turkish Civil Code numbered 4721 (article 187).
The legislator, has kept the aforementioned regulation considered to be against gender equality even though it has amended other regulations that are not in accordance with the principles on equality that are adapted by the modern legal systems and TCC. [8] Therefore criticism made towards the former legislation is still valid for the new law. [9] Article 173 of the TCC in relation to divorce has also been kept in parallel with the former article 141.
In an individual application made to the Constitutional court in 2013, it was accepted that the plaintiff did not have to use the surname of her husband and that it was a violation of rights. [10] The basis of the decision is that; the surname of women change according to marital status and men retain their surname from birth throughout their lives, therefore the elimination of inequality in such cases can be interpreted as enjoyment of fundamental human rights and freedoms regardless of language, religion, race, political affiliation, and gender. [11]
The decision that addresses the approach in the Turkish legal system on the issue is the decision of the General Assembly of Civil Chambers of the Court of Appeals dated September 30, 2015. [12] The decision, “No matter the reason the plaintiff wishes to use her maiden name during the course of the marriage. There is no need to justify the need to use maiden name. This right is a human right in accordance with article 8 of the ECHR and article 17 of the Constitution and is implemented equally regardless of gender. Otherwise, it will be in violation of article 14 of the ECHR.” opening the way for women to keep their maiden name by filing a lawsuit in family courts without presenting a justification.
In the case of constitutional regulations, with the amendment made by Law No. 5170 to the second paragraph of article 10 of the Constitution, [13] adding the clause “Men and women have equal rights. The state is obliged to realize these equal rights.” Again, the first paragraph of article 41 of the Constitution was amended by Law No. 4709 the clause “is based on equality between the spouses” stating that the regulation is made to ensure equality between women and men. [14]
With the addition of a clause to the Law numbered 5170 and article 90 of the Constitution, the provision; “the provisions of the international conventions are taken as basis for disputes arising from different provision on the same subject in international agreements regarding basic rights and freedoms that are in force” was set forth.
3- INTERNATIONAL CONVENTIONS ON FUNDAMENTAL RIGHTS AND FREEDOMS SIGNED BY TURKEY
Important legislative regulations under article 90 of the Constitution that should be noted; If the law and the conventions of fundamental rights and freedom are in conflict, the provision of the international agreements will be taken as basis, such as; the European Convention on Human Rights (“ECHR”, “Convention”) and Convention on the Elimination of all Forms of Discrimination Against Women (“CEDAW”) and International Covenant on Civil and Political Rights.
Article 14 of the ECHR which regulates the prohibition of discrimination states that; “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” Regarding the precedents of the European Court of Human Rights (“ECtHR”, “Court”), it is observed that the court acknowledges the woman’s surname under article 8 of the Convention titled “Respect for Private and Family Life”. [15]
Article 5 “Equality Between Spouses” in Additional Protocol No. 7 of the convention regulates that; “ Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of it dissolution. This Article shall not prevent States from taking such measures as are necessary in the interest of the children.”
With Article 16 of CEDAW stating that; “Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women” and subparagraph (g) of the same article “The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation” meaning that gender equality has been ensured.
Even though the International Covenant on Civil and Political Rights regulates women’s surname, an important amendment was made regarding women’s surname with article 23/3 stating that “Parties shall take all appropriate measures to ensure equal rights, about marriage, and responsibilities within marriage or divorce” [16]
4- UNAL TEKELI DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS
While controversy continues in the doctrine on article 187 of TMK regarding the surname of married women, the ECHR decision dated 16.11.2004[17] on the Ünal Tekeli-Turkey case has opened a new page in the discussion. [18]
Within ten years of the decision to decline by the Constitutional Court published in the Official Gazette, no new legal action shall be taken for the same decision claiming that it is against the Constitution. [19] Until 2008, Ayşe Ünal Tekeli was not able to take the decision on her surname before the Constitutional Court, as the current legislations did not answer to her requests in 2004, Ayşe Ünal Tekeli brought her request on using only her maiden name before ECtHR with the claim that it was in violation of article 14 and 8 of the European Convention on Human Rights. [20]
Turkey argued that; due to the relation between family unity and surname, the legislation aims to use a common name and to emphasize family unity by adopting the husband’s surname and that this was an issue of public order and private life ends when public order is of concern, therefore, this does not constitute as discrimination even though there is different treatment between the genders as it’s based on objective and viable reasons, also with amendments to article 153 of the TCC, married women can add their maiden name on front of their husband’s surname and that further changes in this system can lead to significant complications in the country. [21]
The court investigated interference towards fundamental rights and freedoms under article 8 and 14 of the ECHR.
The Court, in the investigation pursuant to article 8 “Respect for Private and Family Life”, stated that; the provision had brought general protection and that the surname affects the identity and family bond of the individual, and therefore the national legislation on the determination of the family surname constitutes an interference with the right set out in Article 8 of the Convention. [22]
The Court also stated that in the investigation made in terms of article 14 “Prohibition of Discrimination” of the ECHR; “In the mentioned lawsuit, the Government could not demonstrate a concrete or Significant problem that married couples and/or third parties may face or that public interest could be harmed unless a common family name and family union are reflected. Under these circumstances, the ECtHR cannot find any objective or viable reason for married women to carry their husband’s surname for the sake of family union – even if they can add their maiden name before their husband’s surname. ECtHR does not ignore the importance of the problems in birth, marriage and death certificates due to the transition from the traditional husband’s family name system to another system that allows married couples to use their own surnames or to choose a common family name freely. However, it would be reasonable to expect society to experience minor discomfort so that individuals can live with dignity and respect depending on their names”. With this statement, by referring to the studies of the Council of Europe and the United Nations on preventing discrimination, concluded that the regulations on determining the family name in Turkish legislative system leads to different treatment of the genders and that this in violation of European Convention on Human Rights. [23]
A further appeal was made to the constitutional court regarding article 187 of the TCC following the Ünal Tekeli-Turkey decision of the ECtHR, The Constitutional Court reiterated its view that there was no violation of the Constitution. [24] Since the decision in question was published in the Official Gazette on 21.10.2011, the way to bring this matter to the Constitutional Court has been suspended for ten years.
5- CONCLUSION
The individual has an absolute right strictly attached to the surname, and a surname has a function of public order while a name and surname are unchangeable and must be used. [25]
The abovementioned ECtHR decision and the decision on individual application to the Constitutional Court are the decisions in which the individual and social functions of surnames are the subject of controversy. No amendments were made to legislations that are in violation of gender equality regarding women’s surname and the personal rights of women in the Turkish legislative system. As long as no change is made, women will have no choice but to sue in family courts so that they can continue to carry their own surname only after marriage. [26]
What is expected from the legislator is that; in the Turkish legal system that values democratic, equal and fundamental rights and freedoms, is to create an equal system, adopted by the new TMK, truly functional in all areas of social life for women and to make the necessary amendments to lift the obligation to use the man’s surname for women brought by article 187 of the TCC.
REFERENCES
ATASOY, Hakan, Evli Kadının Soyadı Sorunu “Anayasal” Mı? “Bireysel” Mi?, Uyuşmazlık Mahkemesi Dergisi, 2015, Sayı 5
HELVACI Serap, Avrupa İnsan Hakları Mahkemesinin Ve Anayasa Mahkemesinin Kararları Işığında Evli Kadının Soyadı
İNCE, Nurten, Son Yargı Kararları Işığında Kadının Soyadı, Uluslararası Politik Araştırmalar Dergisi, Ağustos 2017, Cilt 3, Sayı 2
KILIÇOĞLU YILMAZ, Kumru, Kadının Bitmeyen Soyadı Sorunu, Ankara Barosu Dergisi, 2014, Sayı 4
ÖCAL APAYDIN, Bahar, Son Yargı Kararları Işığında Kadının Soyadı Meselesi Çözüme Kavuşturulmuş Mudur?, İnönü Üniversitesi Hukuk Fakültesi Dergisi Cilt:6 Sayı 2 Yıl 2015
[1] İNCE, Nurten, Son Yargı Kararları Işığında Kadının Soyadı, Uluslararası Politik Araştırmalar Dergisi, Ağustos 2017, Cilt 3, Sayı 2, s.38
[2] ATASOY, Hakan, Evli Kadının Soyadı Sorunu “Anayasal” Mı? “Bireysel” Mi?, Uyuşmazlık Mahkemesi Dergisi, 2015, Sayı 5, s.135
[3] İNCE, Nurten, Son Yargı Kararları Işığında Kadının Soyadı, Uluslararası Politik Araştırmalar Dergisi, Ağustos 2017, Cilt 3, Sayı 2, s.40
[4] ÖCAL APAYDIN, Bahar, Son Yargı Kararları Işığında Kadının Soyadı Meselesi Çözüme Kavuşturulmuş Mudur?, İnönü Üniversitesi Hukuk Fakültesi Dergisi Cilt:6 Sayı 2 Yıl 2015, s.427
[5] İNCE, Nurten, Son Yargı Kararları Işığında Kadının Soyadı, Uluslararası Politik Araştırmalar Dergisi, Ağustos 2017, Cilt 3, Sayı 2, s.40, 41
[6] ATASOY, Hakan, Evli Kadının Soyadı Sorunu “Anayasal” Mı? “Bireysel” Mi?, Uyuşmazlık Mahkemesi Dergisi, 2015, Sayı 5, s.142
[7] İNCE, Nurten, Son Yargı Kararları Işığında Kadının Soyadı, Uluslararası Politik Araştırmalar Dergisi, Ağustos 2017, Cilt 3, Sayı 2, s.41
[8] HELVACI Serap, Avrupa İnsan Hakları Mahkemesinin Ve Anayasa Mahkemesinin Kararları Işığında Evli Kadının Soyadı, s.160
[9] HELVACI Serap, Avrupa İnsan Hakları Mahkemesinin Ve Anayasa Mahkemesinin Kararları Işığında Evli Kadının Soyadı, s.160
[10] http://www.resmigazete.gov.tr/eskiler/2014/01/20140107-8.pdf, (Erişim Tarihi: 12.05.2019)
[11] KILIÇOĞLU YILMAZ, Kumru, Kadının Bitmeyen Soyadı Sorunu, Ankara Barosu Dergisi, 2014, Sayı 4, s.586
[12] Yargıtay Hukuk Genel Kurulu, 30.09.2015, 2014/889 Esas ve 2015/2011 Karar, www.karararama.yargitay.gov.tr
[13] 2709 Sayılı 1982 Tarihli Anayasa
[14] İNCE, Nurten, Son Yargı Kararları Işığında Kadının Soyadı, Uluslararası Politik Araştırmalar Dergisi, Ağustos 2017, Cilt 3, Sayı 2, s.42
[15] İNCE, Nurten, Son Yargı Kararları Işığında Kadının Soyadı, Uluslararası Politik Araştırmalar Dergisi, Ağustos 2017, Cilt 3, Sayı 2, s.43
[16] İNCE, Nurten, Son Yargı Kararları Işığında Kadının Soyadı, Uluslararası Politik Araştırmalar Dergisi, Ağustos 2017, Cilt 3, Sayı 2, s.44
[17] http://www.inhak.adalet.gov.tr/ara/karar/unaltekeli2004.pdf (Erişim Tarihi: 14.05.2019)
[18] HELVACI Serap, Avrupa İnsan Hakları Mahkemesinin Ve Anayasa Mahkemesinin Kararları Işığında Evli Kadının Soyadı, s.161
[19] 2709 Sayılı 1982 Tarihli Anayasa’nın 152. maddesi
[20] İNCE, Nurten, Son Yargı Kararları Işığında Kadının Soyadı, Uluslararası Politik Araştırmalar Dergisi, Ağustos 2017, Cilt 3, Sayı 2, s.46
[21] ATASOY, Hakan, Evli Kadının Soyadı Sorunu “Anayasal” Mı? “Bireysel” Mi?, Uyuşmazlık Mahkemesi Dergisi, 2015, Sayı 5, s.155
[22] HELVACI Serap, Avrupa İnsan Hakları Mahkemesinin Ve Anayasa Mahkemesinin Kararları Işığında Evli Kadının Soyadı, s.161
[23] HELVACI Serap, Avrupa İnsan Hakları Mahkemesinin Ve Anayasa Mahkemesinin Kararları Işığında Evli Kadının Soyadı, s.161, 162
[24] http://www.resmigazete.gov.tr/eskiler/2011/10/20111021-8.htm (Erişim Tarihi: 14.05.2019)
[25] İNCE, Nurten, Son Yargı Kararları Işığında Kadının Soyadı, Uluslararası Politik Araştırmalar Dergisi, Ağustos 2017, Cilt 3, Sayı 2, s.54
[26] HELVACI Serap, Avrupa İnsan Hakları Mahkemesinin Ve Anayasa Mahkemesinin Kararları Işığında Evli Kadının Soyadı, s.167