Article 187 of the TCC which stipulated that the married woman would take her husband’s surname, was annulled by the Constitutional Court on 22 February 2023. The annulment decision, published in the Official Gazette on 28 April 2023, entered into force nine months later according to the Court decision. After the annulment decision comes into force, Article 187 of the TCC has now become unenforceable. In addition, the legislator has not generated a new provision regulating the effect of marriage on a woman’s surname within nine months. Art. 22 of the Population Services Regulation contains a regulation with the same regulation as the art. 187 of the TCC. However, the annulment decision came into force, the provision of the regulation was not abolished. Therefore, these situations necessitated the examination of the surname issue of the woman, who married after the Constitutional Court’s annulment decision, from a constitutional perspective. When we look at the practice, it is seen that woman who marry after 28 January 2024 have to take their husband’s surname. Although it has no legal basis, art. 187 of the TCC continues to be implemented as if there was no annulment decision. This de facto situation causes rights violations and the expectation of a new regulation regarding the surname of the married woman continues to rightfully exist.
Surname Surname of Woman Family Surname The Binding of Decisions of the Constitutional Court Gap in Law
The study aims to explain the legal status after the annulment of article 187 of Turkish Civil Code (TCC) No. 4721 by the decision of the Constitutional Court and put forward a nor-mative evaluation about the new regulation that the legislative branch will make for the sur-name of the married couple. On the one hand, this study takes over the explanatory method in terms of the effort to reveal the effects on the legal order by the annulment decision of the Constitutional Court, on the other hand, it can be seen as a normative study from the point of containing normative evaluations regarding married couple surnames.
Article 187 of the TCC which stipulated that the married woman would take her husband’s surname, was annulled by the Constitutional Court on 22 February 2023. The annulment decision, published in the Official Gazette on 28 April 2023, entered into force nine months later according to the Court decision. After the annulment decision comes into force, Article 187 of the TCC has now become unenforceable. In addition, the legislator has not generated a new provision regulating the effect of marriage on a woman’s surname within nine months. Art. 22 of the Population Services Regulation contains a regulation with the same regulation as the art. 187 of the TCC. However, the annulment decision came into force, the provision of the regulation was not abolished. Therefore, these situations necessi-tated the examination of the surname issue of the woman, who married after the Constitu-tional Court’s annulment decision, from a constitutional perspective. In this context, the following questions may arise: Can the Parliament introduce the same or a similar regulation that the Constitutional Court annulled? What is the legal situation if the Parliament does not make a regulation on the relevant issue within the period given to it by the Constitution-al Court?
In our opinion, instead of the two extreme views that the justification part of the Constitutional Court’s decisions is completely binding and not binding at all, it can be argued that the mandatory elements that must be taken into account in the justification part are binding. In this context, the legislative branch has an obligation not to make a regulation that requires one of the parties to take the surname of the other party. However, a regulation stating that the surname of either party can be chosen with their free will cannot be seen as contrary to the principle of equality. Another issue that needs to be discussed is whether a legal vacuum situation will arise if another rule is not issued instead of the annuled norm after the nine-month period given by the Constitutional Court to the parliament has ex-pired.
In this case, although it may be thought that there is a legal gap regarding the wom-an’s surname, in our opinion, such a gap does not exist. Therefore, no legal gap arises. For a gap in the law to occur, a subject or issue that needs to be regulated in the law must not be regulated. The effect of marriage on a woman’s surname cannot be seen as an obligation that needs to be regulated when viewed objectively. However, when we look at the practice, it is seen that woman who marry after 28 January 2024 have to take their husband’s surname. Although it has no legal basis, art. 187 of the TCC continues to be implemented as if there was no annulment decision.
Moreover, in the annulment decision of the Constitutional Court, nine members decided against six members for violation, making the annulment decision controversial in terms of content. While evaluating the constitutionality of the provision of art. 187 of the TCC, the Court evaluated the violation only in terms of Article 10 of the Constitution. The lack of consensus on the constitutionality of the provision in question necessitated an evalua-tion of this provision in terms of its fundamental rights dimension. In our opinion, the obligation of a woman to take her husband’s surname upon marriage is a violation of the right to protect and develop the material and spiritual existence of the person regulated in art. 17 of the Constitution and the right to respect for private life regulated in art. 20.
When regulating the effect of marriage on a woman’s surname, should the legislator place the concept of family surname or the principle of immutability of the name at the cen-ter of the rule? In our opinion, the principle to be taken as the basis when regulating the effect of marriage on married couple’s surnames should be the principle of immutability of the name. However, this should not mean the elimination of the family surname. Although the rule is that couples continue to bear their surname, choosing the family surname should be presented to couples as a choice.
