Bad news for women in the 9th Judicial Package! Despite the Constitutional Court ruling...

The draft of the 9th Judicial Package, which consists of 38 articles and which the AKP plans to bring to the Grand National Assembly of Turkey (TBMM) and put into effect before the end of the legislative year, envisages regulations in Article 13 under the headings of "Woman's surname" and "Statutes of limitation" in Article 187 of the Turkish Civil Code No. 4721.

According to Article 187 of the Turkish Civil Code, a woman takes her husband's surname upon marriage. Under this provision, a woman was required to take her husband's surname upon marriage, but she had the right to use her own surname before her husband's surname if she wished.

The Constitutional Court, with its decision published in the Official Gazette dated February 22, 2023, decided to annul the first sentence of Article 187 of Law No. 4721, concluding that ''the fact that a woman takes her husband's surname after marriage is not the only option that makes it possible for a family to have a common surname, that the purpose of protecting and strengthening family ties cannot be accepted as a reasonable justification for the different treatment envisaged by the rule, and that the different treatment envisaged by the rule between men and women in the context of using the pre-marriage surname alone after marriage violates the principle of equality because it does not have an objective and reasonable basis.''

"IT MAY HAVE NEGATIVE EFFECTS ON THE CHILD"

In the draft of the article in question, pointing to this decision of the Constitutional Court, it is stated that in the new draft, if the woman's surname consists of her own surname and her previous husband's surname, the woman will only be able to use one of these surnames before the surname of the husband she is marrying. With this regulation, the woman's use of her surname alone will be prevented despite the Constitutional Court ruling. In the justification of the article in question, this situation was noted with the following expressions: "When the importance of the family is evaluated, the fact that the mother and father use separate surnames may have negative effects on the child, and which surname the child will use will become a separate subject of discussion."

"CAN BE USED BEFORE THE HUSBAND'S SURNAME"

The justification for the regulated article was explained in the draft as follows: "The provision subject to annulment states that a woman will take her husband's surname upon marriage, but she may also use her previous surname before her husband's surname upon a written application to the marriage officer during the marriage or to the population administration later. Accordingly, a woman who marries can also use her previous surname, provided that she takes the surname of the husband she marries. Article 41 of our Constitution accepts that the family is the foundation of Turkish society. When the importance of the family is evaluated, the fact that the mother and father use separate surnames may have negative effects on the child, and which surname the child will use will become a separate subject of discussion. This situation may harm the family integrity, which is the foundation of Turkish society. For this reason, the provision of the law annulled by the Constitutional Court is being re-regulated, and it is stipulated that the woman who marries will take her husband's surname, but if she wishes, she can also use her previous surname before her husband's surname, and if the woman's surname consists of her own surname and her previous husband's surname, she can only use one of these surnames before the surname of the husband she will marry."

THE MOTHER'S RIGHT TO FILE A LAWSUIT FOR DENIAL OF PATERNITY

Article 14 of the 9th Judicial Package also regulates the "Denial of paternity/Right to sue" clause in Article 286 of the Turkish Civil Code. The Constitutional Court's decision dated July 26, 2023, was shown as the justification for the regulation of this article. Accordingly, before the said Constitutional Court decision, the paternity established between the father and the child could only be eliminated through lawsuits filed by the husband or the child. This situation was in the first paragraph of Article 286 of the Turkish Civil Code as "The husband can refute the presumption of paternity by filing a lawsuit for denial of paternity; this lawsuit is filed against the mother and the child."

For this reason, even if the person appearing as the father in the population records knew that he was not the real father, the mother did not have the right to file a lawsuit for denial of paternity. For this reason, even if the person appearing as the father in the population records knew that he was not the real father, the mother did not have the right to file a lawsuit for denial of paternity.

The article, for which the Constitutional Court decision was shown as justification, was re-regulated as "The husband, mother, or child can refute the presumption of paternity by filing a lawsuit for denial of paternity. This lawsuit is filed against other persons who have the right to file a lawsuit."

STATUTES OF LIMITATION

A regulation is also envisaged in the 9th Judicial Package under the heading "Statutes of limitation" in Article 289 of the Turkish Civil Code, which is in Article 15. Accordingly, the expression in the current law "The husband must file the lawsuit within one year from the date he learns of the birth and that he is not the father or that the mother had sexual intercourse with another man during the time of conception, (...) The child must file the lawsuit within one year at the latest from the date he/she reaches adulthood." is being re-regulated as "The husband must file the lawsuit within one year from the date he learns of the birth and that he is not the father or that the mother had sexual intercourse with another man during the time of conception, (...). The mother must file the lawsuit within one year at the latest from the birth, and the child from the date he/she reaches adulthood."

The justification for the regulation envisaged in Article 314 of the Turkish Civil Code, which is in Article 16 of the 9th Judicial Package, is also shown as the Constitutional Court's decision dated July 26, 2023. Accordingly, the expression "The names of the adopting spouses are written as the mother and father's name in the population record of minors who are adopted together by the spouses and who do not have the power of discernment." is being re-regulated as "In the population record of minors who do not have the power of discernment, the names of the adopting spouses are written as the mother and father's name in joint adoption; in individual adoption, the name of the adopter is written as the mother or father's name. This provision is applied to other adopted persons upon their request."