Woman’s Name Right
The name is expressed as words or phrases that distinguish one person from the other jurisdictions and provide the last name, separated from another person sociologically and legally, and helped to identify. The right on the name is a right connected with the person and cannot be separated from him. Therefore, the right on the name is part of the preservation of personality.
The surname, which is an absolute right, is also a right that is strictly attached to the person, so it is an inalienable right for the first time in Turkey surname law, it was adopted by law Number 2525 on 26.1.1934. The surname of the surname is that each Turkish person should carry his surname outside his name as envisaged by the law. Besides, the last name is a surname and can be obtained in three ways: Last name; Turkish Civil Code (TCC) can be obtained through Article 321 of the TCC. There are some problems in the definition of the nation. As stipulated in the “Last Name Law”, it is understood that every Turkish citizen must have a surname with the first name and come after his/her name. Also, the last name is a surname and can be obtained in three ways: Last name; The TCC can be taken with the Article 17 of the TCC, which is organized in paternity, through the administrative or the 187th marriage with 17/3. Article 187 creates a fundamental problem because it is based on creating a family.
In Turkish law, the system is based on the family, if the foundation is intact; each of the applicants is affected by this problem, so Article 187 is, therefore, an important article. The Article of 321 says that his surname comes with the family. This is a recurring problem nowadays. Many married women, regardless of employment status, are-asserting their right to live unencumbered by laws or customs which discriminate based on sex. Therefore, Article 187 should be looked at more closely. The problems in Article 187 can be summarized in this way.
First, the meaning of rights that are strictly bound to the person is not transferable and a right is exclusive to the proprietor and the owner cannot give up this right even if the owner desires, but we see that a woman needs to change. The surname of the law, so there is a semantic confusion that can be easily said.
Second, when we look at the general characteristics of laws, they are abstract, generalized and permanent. In Article 187, only one woman has to change his surname when married. In other words, the function and characteristics of the surname, which has a personality in terms of its legal character, are valid only for men, because it only changes the female surname. Legal articles cannot be said to be general. There is a contradiction here.
Finally, today, we accept that the Turkish Constitution is based on many articles on equality, but there are some obstacles as set out in the introduction. This arrangement of the woman’s last name is contrary to Article 10 of the Constitution, stating that women and men have equal rights.
Why does the woman have to take her husband’s name, but not a man?
Women do not keep up with the speed of life due to problems caused by paperwork in daily life. For these reasons, we will discuss how other countries overcome this problem and what we do in our country.
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I. The Woman’s Name Right in Germany
A. General Review
In German Law, ¨family name¨ is arranged under the title of general provisions of marriage in BGB §1355 German law based on a surname of the family rather than generations of patterns in the current laws has given more importance. When they get married, the spouses gain a right of choice for the surname. If they want to continue to use the old surnames or do not specify anything they will use the old surnames. The implicit will statement does not entitle it to win a new surname. The other right is that will be named after the family if they report that they want to use the family name to the corporation of the population management.
B. The process of The Woman’s Name Right in Germany
Prussia for the first time in 1794 in the married woman takes her husband’s surname in provision was started to be implemented and in 1896 the law was put into effect, and this provision was the same reception. Arrangements made since 1920;
a) 1794- A married woman took her husband surname in Prussia;
b) 1896- The same reception;
c) Acceptance of the Equal Rights Principle (1949);
d) The entry into force of the Equal Rights Act (1957);
e) Marriage and Family Law Reform Law (1976);
f) German Federal Constitutional Court 1355/2. Cancellation Decision (5.3.1991);
g) Adoption of the Law on the Family Right (16.12.1993).
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II. The Woman’s Name Right in France
A. General Review
Debates on equality between men and women brought a great deal in France. With these discussions, the word of patronym which is mention surname is based from Greek, pater mention father means and onyma mention name means, as a result, patronym is mentioned father name. With the law of 4 March 2002, the French Civil Code “patronyme” and “patronymique” has removed the words. These words are replaced by family name. It is called “nom d’usage”, which can be used in daily life outside the family name, for example in the signature, and in the name, which is used for a name. The family name cannot replace the name because it does not continue, it ends with the user.
B. The Effect of Marriage on Woman’s Name Right in French Law
The right to receive the surname of the other spouse was converted into a simple use right under French law with the regulation of May 17, 2013, numbered 2013-404. With these regulations, the French legislator thinks that it also provides the equality of men and women. The woman is free to carry her husband’s last name. After marriage, each spouse has the opportunity to use the last name of the other spouse. Using the other surname is an optional right, not an obligation. In other words, spouses must use the other’s surname or their surnames as a personal choice.
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III. The Woman’s Name Right in Switzerland
A. General Review
A softening was done to the law. The law gives a right if a woman wants to use her surname, the woman’s right to use the last name in front of her husband’s surname by the acceptance of a qualified public servant.
B. The process of The Woman’s Name Right in Swiss Law
Despite the intense efforts of the jurists who argued that 1984 was an obstacle to equality, their efforts had failed. In 1994, the legal struggle was resumed and in 2003 a new trend gained. The new regulations on equality between men and women were adopted on 30.09.2011, but the surname of the husband continued to be superior until 31.12.2012.
- After the revision, the new regulations and the invariance of the surname have been adopted on 01.01.2013. Thus, the principle of unity, by the family, which forced the woman to take her husband’s surname, was repulsed by the Swiss legislator.
IV. The Woman’s Name Right in Turkey
A. General Review
Woman in marriage union takes the last name of the husband. Article 187- The woman takes her husband’s surname after getting married; however, he can use his previous surname before the husband or surname of the marriage officer or his application in written form to the population administration. Women who use two surnames before can only benefit from this right to just one surname.
This regulation was entered into our law with the amendment made in Article 153 of our former Civil Code with the Law No. 4248, dated 14.05.1997, in the period of the former Civil Code numbered 743. It is discussed in the doctrine that the opposite of the law, despite the explicit provision, can be applied. For example, in the case of the doctrine, the spouses may agree to use the female surname as the family surname in among themselves before making a marriage agreement. In this case, spouses may benefit from the modification of the name given in Article 27 of the TCC.
The demand for changing the man’s surname will be accepted by the court only if there are justified reasons. According to another view, the married woman is obliged to use her family name as soy family surname soy and “family surname soy as her husband. Article 187 of the TCC is a mandatory provision. For this reason, in the case of Turkish law, the husband’s surname, “family surname” to turn into a case to change his surname, the law should be considered as a state of cheating against the law. These constraints are opposed to the definitions of freedom today.
B. Judicial Review
The married woman’s family name was moved to the ECHR in 2004, this time. The court considered the issue together with the principle of equality and the prohibition of discrimination. As in the case of the Burghartz v. Switzerland judgment, the Court has firstly examined the existence of a compelling reason for the different treatment of women. Accordingly, given the article regulating the woman’s surname, the Turkish government did not accept the fact that married women were required to carry their husband’s surname in the name of family unity and that even married women could add their surnames before this surname. And the fact that, if the family unit is not reflected, the concrete or important problem encountered by married couples and/or third parties could not be demonstrated or the public interest could not be proven, the ECHR’s objective to reflect the family unity through a common family name is a concrete and objective. Consequently, the Court finds it difficult to reflect and protect family unity under a common name and to protect it in a manner that is gender-specific in the interest of public interest and public order. NL by assessment as to why that makes has decided that there has been a violation of the principle of equality issues.
Following this decision, discussed further in three separate cases and each one has also been decided to violate against Turkey on the same grounds by the Court. Following the entry into force of the TCC numbered 4721, the issue was once again transferred to the Constitutional Court through concrete norm control and the TMK m. 187 of the Constitution a. 2, 10, 12, 17, 41 and 90. However, although the TCC no. 4721 was adopted and the regulations on gender equality had been accepted and the period passed for thirteen years, the perspective of the Constitutional Court was not changed yet and the annulment application was rejected by repeating the reasons stated in the previous decision. In its decision, the Constitutional Court firstly acknowledged that the surname was a strictly binding right to the person, thus emphasizing that the Constitution was an inalienable and indispensable right in terms of articles 12 and 1782. However, the Constitutional Court acts as the discretionary right “of the legislator in determining the family name.
The use of this discretion as a family name is based on the public order and the public interest by the Constitutional Court. The Court considers this obligation to protect family unity and integrity; the protection of family ties; it has attempted to concrete in formal documents with the necessity of preventing confusion and determining the lineage. Here, the woman’s right to renounce her surname until the marriage, public interest and public order are required per the normal. This approach, by the law, is obliged to change the surname of the woman in every civilian change and to be obliged to explain this to the public. Therefore, the right on the surname inalienable and inalienable is not “untouchable” according to the Constitutional Court. Constitution. In terms of 1089, the Constitutional Court did not go beyond repeating the conclusions it reached in its decision made thirteen years ago. Accordingly, the principle of equality aims to ensure that the same legal ones are treated the same as those of the law and to prevent discrimination and privilege against persons by law. Following this general assessment, the Constitutional Court stressed that equality before the law does not mean that everyone will be subject to the same rules in all aspects. Consequently, it was not contrary to the principle of equality by the Constitutional Court.
Since the Constitutional Court has not decided to annul the TCC a. 187 is still in force. Besides, many draft laws and proposals on the amendment of the aforementioned provision were given to the TCC. A law on the amendment of 187 was not enacted. After marriage, only the woman, who wants to use her surname, must apply for the case. In the case of the case, the judge is confronted with the relevant international rules and the applicable law. In this case, the issue of international treaties on fundamental rights and freedoms duly carried out by the Constitution a.90 / V and whether international treaties in the disputes that may arise if the laws contain different provisions on the same issue should be resolved.
A more narrow interpretation of the decision of the Court of Cassation in the international conventions regulating fundamental rights and freedoms clearly stated that there is no provision for the surname of the woman. Unless cancelled by the Constitutional Court or amended by the legislator, the TCC in force in force is a. 187 should be applied.
But the circle then returned from this case-law and the rules of international law on fundamental rights and freedoms and the TCC a. 187, the European Convention on Human Rights (ECHR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), After the fact that the plaintiff is legally beneficial to use his / her previous surname after marriage because of his professional and social life, the decision was put into force by the ECHR, CEDAW and the protocols and recommendations related to the basic rights and freedoms. Then, only the right to use the sole surname of the justification of the right to use is shown.
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Conclusion
As explained under the conditions prescribed by our law, our women change their surname at each marital change. The opportunity to use the husband’s last name if the married woman uses her surname in front of her husband’s family name or if the divorce proves that this cannot cause any harm to the husband. The principle of equality between the sexes under international conventions to which the main and side of Turkey as seen in the review decision above the constitutional court, is expanding this narrow frame with judicial decisions, but our law does not yet allow it, unfortunately. As a result of the judicial decisions in the marriage with the woman’s surname of marriage can be used alone by her name and the divorced woman in the custody of her left to the child can give their surname. These conditions bring about two important consequences: They will not have to prove that they have an interest and will not harm their husbands, but on the contrary, they will not be forced to use a foreign last name when they are married. Then it is also possible to say that divorced women and the custody of the mother who was left to her mother’s ability to move to the same name last to be able to carry the same name.
The new jurisprudence of the Court of Appeals, and in particular the attitude of the Constitutional Court in the individual application decisions, shows that it is only possible for the woman to use her surname after her marriage. This development, in Turkey, “the woman’s name,” which is about the undeniable step in the ongoing struggle for the achievement of gender equality. However, it cannot be described as a victory in itself.
While the legislator is expected to take action through these developments, it is observed that he is still inactive. Currently, the commissions and proposals are pending for the surname of the woman. At this stage of the judicial decisions, after the marriage of the woman to carry only their surname or the custody of the child left to her surname after the court decision was made possible by the court decision. However, even this new situation, Turkey is a party to the United Nations Political Rights, Convention Against Women All Forms of Discrimination Elimination of the European Convention of their obligations under the Convention on Human Rights does not mean that you have to be fulfilled literally.
Unfortunately, it is still a wish for the legislator to adopt a new regulation that is more democratic and gender equality and compatible with the international conventions and judicial decisions on fundamental rights and freedoms.
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Bibliography
- Abik, Yıldız. Kadının Soyadı ve Buna Bağlı Olarak Çocuğun Soyadı. Ankara: Seçkin Yayınevi, 2005.
- Özdemir, Hayrünissa. “Türk ve İsviçre Medeni Hukukunda Ad Üzerindeki Hak ve Korunması”. Ankara Üniversitesi Hukuk Fakültesi Dergisi 57/3 (2008): 561-598.
- Conrad-Rice, Joy Belle. “The Legal Status of a Married Woman’s Maiden Name”. Women Lawyers Journal 59 (Summer 1973): 98-102.
- ECtHR, 16.11.2004, Application No. 29865/96, Unal Tekeli v. Turkey.
- The Court D. 28.05.2013, Application No. 7971/07 of Leventoğlu Abdülkadiroğlu v. Turkey
- D. 03.10.2013, Application No. 26268/08 Tuncer Sun v. Turkey
- The Court D. 10.12.2013, Application No. 38249/09 Tanbay Tüten v. Turkey.
- Dural, Mustafa – Öğüz, Tufan – Gümüş, Mustafa Alper. Türk Özel Hukuku. İstanbul: Filiz Kitabevi, 2019.
- Family under old arrangement against unity principle. BSK ZGB-I / Bühler, Art.160, N.1.
- Helvacı, Serap – Kocabaş, Gediz. “Fransız, Alman, İsviçre ve Türk Hukuklarında Kadının Soyadı”. Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi 21/2 (2015): 615-644.
- Moroğlu, Nazan. “Kadının Kimlik Sorunu: Kadının Soyadı”. TBB Dergisi 99 (2012).
- Öcal Apaydın, Bahar. “Son Yargı Kararları Işığında Kadının Soyadı Meselesi Çözüme Kavuşturulmuş mudur?”. İnönü Üniversitesi Hukuk Fakültesi Dergisi 6/2 (2015).
- Turan, Gamze. “Türk Hukukunda Evli Kadının Soyadı: İsviçre ve Alman Hukuklarıyla Karşılaştırmalı Olarak”. Doğu Akdeniz Üniversitesi Kadın Araştırmaları Dergisi 7/2 (December 2006): 73-87.
- Zevkliler, Aydın – Acabey, Beşir – Gökyayla, Emre. Medeni Hukuk. Ankara: Seçkin Yayınevi, 2016.
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