Comparison of German and Turkish Family Law as the Aspect of Family Name
1. Introduction
In the context of human society, a family is a group of people related either by consanguinity (by recognized birth) or affinity (by marriage or other relationship). The purpose of families is to maintain the well-being of their members and society. Ideally, families would offer predictability, structure, and safety as members mature and participate in the community [1]. In the process of time, civilization gained momentum and improved itself snappily. That progress necessitates regulation for relations between people to prevent conflicts. With the dawn of civilization, the legal order started to rise inherently. Concordantly, the notion of family as the indispensable part of civilization could be of capital importance in the sense of domestic law. Correspondingly, society needs regulations to be maintained order in the community and of course in the family. In the light of these, states embody provisions about relations in “Family” under the title of Civil Code in the stage of the history.
2. Background
Civil law is a legal system originating in Europe, intellectualized within the framework of Roman law. Its core principles are codified into a referable system that serves as the primary source of law. This can be contrasted with common law systems, the intellectual framework of which comes from judge-made decisional law, and gives presidential authority to prior court decisions, on the principle that it is unfair to treat similar facts differently on particular occasions [2]. Within the modernization, it has tried to reach the perfect and ideal regulations. In this context, it has drawn up contracts that have international effects. Especially, the European Convention on Human Rights (ECHR) is the most known regulation in history. Hence, it will be discussed the interpretation of human rights within the aspects of ECHR while comparing the regulations in German and Turkish Civil Law on the Family Law.
3. Family Name
Firstly, it could be seen that there are different regulations and approaches between Turkish and German Civil Law. However, they were all affected by Roman Law. In my estimation, the woman’s surname in Turkey has critical importance to evaluate. Because it seems like, the Turkish authorities adopted gender equity instead of gender mainstreaming. Our regulations show partially the equality on surname, but in practice, authorities flag to apply rules due to the politicians’ tendency. Gender equity is interpreted with a sense of decency and custom of society that brings inequality. The main rights of women should not be interpreted by only society’s values. It should be applied in international standards, so this approach contains gender mainstreaming. Concordantly, a judicial system shouldn’t act with only society’s mentality, it could be assimilated into the ideal universal law. Then again, the path of de lege ferenda shall guide.
After that, it is good to mention the history of the surname in Turkey. The surname law adopted nine decades ago allowed all Turkish citizens to choose a surname for their family and forbade addressing people by titles. People adopted surnames related to their ancestors, historic events, or simply related to the holder’s profession or personality. Just 92 years ago, Turkish people started to choose a formal, legal family surname with a new regulation which is one of the radical reforms in their newly established country [3].
3.1 Regulations
A) German Civil Code Relevant Provision
The family name has an important position in German Civil Law. Authorities embodied a detailed and clear provision which deals with the family name — surname situation. Section 1355 of the German Civil Code especially regulates family names in common with other relevant codes. German Civil Code approaches family law as an elaborative aspect, thus, only Section 1355 will be interpreted in this part.
It says;
“(1) The spouses should determine a common family name (family name). The spouses have the family name determined by them. If the spouses do not determine a family name, they keep the names they use when the marriage is entered into after the marriage too.
(2) The spouses may choose the birth name of the husband or the wife or the name the husband or wife had at the time of the declaration on the determination of the family name as family name by declaration to the registry of births, deaths and marriages (…)”
That section shows both parts of marriage can protect their surname and also, they have the right of determining a common family name. When examined the birth name it is referred to as gender equality and freedom of choice. In this way, spouses and common children have the same surname and have declared that they belong to the same family to third parties. Although this is the general rule, spouses were not forced to choose a common family name, but they had the opportunity to protect their names in marriage. Spouses decide on whether they will use a common family name first, and then which spouse’s surname will be determined as the common family name, by using the two-step election awarded to them by law [4].
Under the principle of unity in the family name, which is valid in German law, spouses could determine a common family name. However, determining a new family name is not an obligation for spouses [5]. While the lawmaker structured the regime in which the family name is based on the principle of unity, it did not impose an obligation on the spouses in terms of determining the common family name. Although it was mentioned in the BGB §1355 that no family name was determined, no sanction was imposed on not making such a determination [6].
B) Turkish Civil Code Relevant Provisions
In the Turkish Civil Code, the surname of woman regulated specifically, despite that it is accepted in principle husbands’ surname is approved as the family name, but it has exceptions. The surname of woman regulated on Article 187 of the Turkish Civil Code stipulates;
“Married women shall bear their husband’s name. However, they can make a written declaration to the Registrar of Births, Marriages and Deaths on signing the marriage deed, or at the Registry of Births, Marriages and Deaths after the marriage, if they wish to keep their maiden name in front of their surname. Women who previously carried two surnames can only benefit from this law for one name.”
Applying Article 187 of the Civil Code, women are obliged to bear their husband’s name. Women cannot object to having their husband’s names. As long as she is married, the woman is obliged to bear her husband’s name and she cannot change her surname if the marriage ends [7]. Furthermore, a married woman can use her former surname between her first name and her husband’s surname provided that she makes the necessary applications to the authorities at the time of marriage or any time after. Nevertheless, this provision is regarded as insufficient in Turkey concerning equality between women and men, taking into consideration Articles 10, 41, and 90 of the Turkish Constitution and the provisions of the CEDAW, as well as the European Convention on Human Rights. The European Court of Human Rights (ECHR) held that the difference in treatment in question contravened Article 14 taken in conjunction with Article 8 [8]. Unfortunately, however, the Turkish Constitutional Court rejected applications concerning Article 187 TCC, in 1998 and 2011 respectively. In its recent decision, the court mentioned neither CEDAW nor the ECHR’s judgment against Turkey [9].
3.2 Similarities
Both Civil Codes regulated the surname situation after marriage. Turkish and German Civil Law set forth that there would be a change after marriage with the name or family name. However, there is a little difference with approaching perspectives about family name origin as it is understood. After all, both provisions regulated the origins of surnames in the new family order. Furthermore, Turkish and German authorities consider making a written declaration to the Registrar of Births, Marriages, and Deaths on signing the marriage deed.
3.3 Differences
Regarding woman’s surname, Turkey and Germany have different legislations and implementations. At this juncture, a Turkish woman can use her name after an individual application, but it is accepted as a rule that she should use her husband’s surname following cultural and juridical conceding. Women have limited by a provision (TCC Art.187) and they have to use their husband’s surname in this sense. This provision should be reconsidered by authorities. In particular, the Turkish Civil Code does not allow married women to use their birth last names exclusively; they may do so only together with their husband’s last name. A law concerning married women’s surnames has been drafted but regrettably, this law has never come into force. Following the ECHR’s famous Ünal Tekeli [10] the decision, a new decision is also made by ECHR in 2013 very recently regarding this matter. Turkey must take, at least this time, this new decision concerning married women’s surnames in the Turkish Civil Code into account and make the necessary changes to provide gender equality in this matter [11].
As it can be seen, there is some kind of imparities between genders’ surnames after marriage in Turkey. Concordantly, Turkish law doesn’t allow for choosing their family name to spouses, and for that matter, they cannot free to use their election right on their child’s surname. Technically, Turkish women could use their surname, but they should keep their husband’s surname too. However, there are exceptions for these cases, but it has not the usual way. Unlike Germany, Turkey has not an ordinary regulation to provide gender equality and freedom of choice on the family name. For this reason, it can be said that Germany got over more ground than Turkey in the sight of the implementation of gender equality on the surname of women.
4. Conclusion
Consequently, Turkish law needs a new regulation that includes equality on the choosing surname option. In Germany, since 1977, a woman may adopt her husband’s surname, or a man may adopt his wife’s surname. Since 2014, women in Turkey are allowed [12] to keep their birth names alone for their whole life instead of using their husbands’ names [13]. In 2014, the Constitutional Court ruled that prohibiting married women from retaining only maiden names is a violation of their rights [14]. However, there is no direct provision to protect women’s maiden name, it should be an amendment to the law which removes the provision that constitutes the necessity to take the husband’s surname.
After all, it could be realized the differences between approaches. The surname gives us the identity; thus, the maiden name has a place for everyone; so, if we are living in an equal world the rights should be estimated in an equal way. I wish Turkish Civil Law will reach the modern standards of the level of contemporary civilization on the equality of genders, especially in women’s surnames just like Germany does.
[1] Coleman H., Collins D., Jordan C., “An Introduction to Family Social Work” Brooks/Cole, Cengage Learning. pp. 28–29, 2010, ISBN 978–0–495–80872–5.
[2] Washington Probate, “Estate Planning & Probate Glossary”, Washington (State) Probate, 2008
[3] Anadolu Agency, ‘‘The surname law: A profound change in Turkish history’’, 2015
[4] Helvacı S., Kocabaş G., “Surname of Woman in French, German, Swiss and Turkish Law”, Mehmet Akif Aydın’a Armağan, Marmara Üniversitesi Hukuk Fakültesi-Hukuk Araştırmaları Dergisi, 2015/2, p.615–643
[5] Münchener Kommentar zum Bürgerlichen Gesetzbuch von Sachsen Gessaphe, §1355 — Scholz/Kleffmann/Motzer, Teil A, Rn.27; Göppinger/Börger, Teil 8, Rn.1
[6] Staudinger/Voppel, §1355, Rn.26. [Obtained from “Surname of woman in French, German, Swiss and Turkish Law” by Prof.Dr.Serap Helvacı]
[7] Tapan B., “A Woman’s Right and Obligation to Carry her Husband’s Name”, 17 December 2010, İstanbul — BIA News Center
[8] In 2004 Ünal Tekeli v. Turkey Application No: 29865/96 and most recently in 2013 Tuncer Güneş v. Turkey Application No.: 26268/08.
[9] The Constitutional Court dated 29.09.1998, E. 1997/61, K. 1998/59., 15.11.2002, Official Gazette No: 24937.
[10] Case of Ünal Tekeli v. Turkey, (Application no. 29865/96), 16 November 2004
[11] Çakırca İ., ‘‘Turkish Civil Code and CEDAW: Never Shall the Twain Meet?’’, 2012, the Scientific Research Projects Coordination Unit of Istanbul University, p. 186
[12] The Supreme Court of Appeals General Assembly E. 2014 /2–889 K. 2015/2011 T. 30.9.2015
It was decided to cancel the surname of her husband and use only her maiden name with a lawsuit to be filed by women who want to use only their surname after marriage. With this, the way is opened for them to use their surname.
[13] “Married Women in Turkey may use their maiden name without husband’s surname hereinafter”. Birthname usage in Turkey. 27 March 2016. Retrieved 24 February 2016.
[14] “Prohibiting married women from retaining only maiden names a violation: Top court” Hürriyet Daily News. Retrieved 15 December 2017.
