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Our comprehensive legal analysis of the current legislation and case law on a woman’s use of her surname before marriage, during marriage and after divorce is now published. The article covers all the legal details and procedures relating to using a maiden name on its own and to continuing to use the ex-spouse’s surname after divorce, as well as recent Constitutional Court and high court decisions.
In Turkish law, the issue of a woman's surname has been one of the subjects debated for many years, both with regard to the choice of surname before and during marriage and with regard to the use of the former spouse's surname after divorce. While Article 187 of the Turkish Civil Code traditionally provided that a woman who marries must take her husband's surname, the important decisions given by the Constitutional Court in recent years have opened this requirement to re-evaluation within the framework of the principle of equality. On the other hand, Article 173 of the TCC introduces special provisions on a woman's personal status and surname use after divorce. This article will address, in a holistic manner, the possibility for a woman to use her pre-marriage surname on its own during marriage, the conditions for continuing to use the spouse's surname after divorce, and the effect of recent case law on practice.
According to Article 187 of the TCC, a woman acquires her husband's surname upon marriage; however, by a written application to the marriage officer or, later, to the population directorate, she may also use her previous surname before her husband's surname. Since this provision does not allow a woman to use her own surname on its own, it has long been the focus of criticism.
In the event of divorce, under Article 173 of the TCC, a woman reverts to the surname she held before marriage; however, if she proves that she has a “legitimate interest” in using her divorced spouse's surname and that this will not harm the former spouse, she may continue to use the surname by a judge's decision. The law also grants the former spouse the right to request that this permission be revoked if the circumstances change.
For a long time in Turkish law, attempts were made to secure, through court decisions, a woman's wish to use only her own maiden name throughout the marriage. The most critical development in this area is the Constitutional Court's decision of 2023. The Constitutional Court held that the structure of Article 187 of the TCC, which forces a woman to bear only her spouse's surname after marriage, is contrary to the principle of equality in the Constitution, and expressly recognised a woman's right to use her pre-marriage surname on its own during the marriage as well. This decision has created a strong legal basis for women to apply to population directorates or, where necessary, to family courts in order to use their own surnames on their own.
A frequently asked question in practice is whether a woman can use her own surname on its own at the moment she marries. Under the current statutory provision, at the moment of marriage a woman can only take her spouse's surname or use her own surname before her spouse's surname as a double surname. In other words, when the woman says during the marriage procedure, “I want to bear only my maiden name”, it is not possible for the administration to accept this directly.
For this reason, there are two routes for a woman who wishes to use her own surname on its own during marriage:
Administrative application to the population directorate: An application may be made to use her own surname on its own, relying on the Constitutional Court's decision of 2023. Some directorates accept this application.
Bringing an action before the family court: If the population directorate rejects the application, the woman may bring an action relying on the Constitutional Court's decision and the principle of equality.
For this reason, following the Constitutional Court's decision, it is legally possible for a woman to use her maiden name on its own at the moment she marries; however, this takes place not directly through the marriage officer but through an administrative application or a court decision.
Use of the Former Spouse's Surname After Divorce
After the divorce becomes final, a woman as a rule reverts to her pre-marriage surname. In practice, however, it is common for a woman to wish to continue using her former spouse's surname, particularly for reasons such as professional recognition, consistency of surname with the children, academic publications, recognition in the business world, or the appearance of the spouse's surname in international documents.
According to the established case law of the Court of Cassation (Yargıtay), the court may grant permission if the woman's interest in using the surname is proven by concrete evidence. For example, documents showing that she carries out her professional activities under the spouse's surname, business cards, official records, international passport documents, and unity of surname with the children are accepted as grounds constituting an interest. By contrast, the former spouse is required to put forward concrete grounds showing that he will be harmed by the use of his surname.
It should also be remembered that the permission granted is not a permanent right. Under Article 173 of the TCC, the former spouse may request the revocation of this permission by asserting that the circumstances have changed. For this reason, it is important that the reasoning of the decision is strong and that the concrete interests in the woman's favour are clearly demonstrated.
A woman's request concerning her surname may be subject to different procedures:
Use of the maiden name on its own during marriage:
An application may be made to the population directorate; in case of an administrative refusal, an action may be brought before the family court.
Request within the divorce action:
While the divorce action is pending, the woman may request from the court that she be permitted to continue using the former spouse's surname.
Action brought after the divorce:
After the divorce has become final, permission to use the surname may be requested before the family court.
Evidence:
Professional documents, documents showing social life, the surname status of the children, international documents and elements of recognition should be added to the file.
As regards procedure, in some of its decisions the Court of Cassation has separately examined the issue of jurisdiction, and assessments have been made to the effect that family courts have subject-matter jurisdiction. For this reason, the issues of territorial and subject-matter jurisdiction should be explained in the petition in a way that leaves no room for doubt.
The issue of a woman's surname is going through a significant process of transformation in Türkiye, both in terms of legislation and court decisions. The provisions that have traditionally been shaped by Articles 187 and 173 of the TCC are now being approached with a broader interpretation, together with the Constitutional Court's emphasis on the principle of equality; and the way has in practice been opened for a woman to use her own surname on its own during marriage. Continuing to use the spouse's surname after divorce, on the other hand, still requires a judicial assessment tied to the criteria of concrete interest and harm, and the case law of the Court of Cassation provides guidance in this regard.
In conclusion, a woman's freedom to dispose of her own surname is gradually strengthening; in applications to be made on this subject, both the Constitutional Court's decisions and the current practice of the Court of Cassation must be carefully assessed, and evidence must be presented in a concrete and strong manner. When the development of the legislation and the direction of court decisions are considered together, it can be said that a more egalitarian and fundamental-rights-oriented approach to a woman's surname is beginning to take root in our legal system.
Attorney at Law Yusuf Şimşek
