In 2001, a mother divorced her husband, who was her child’s father, and the court of first instance granted custody to the mother, who then filed a lawsuit to change the child’s name and surname because both names were causing the child problems in his social environment—his friends were making fun of him. The Surname Act provides that the husband, as the leader of the marriage union, shall choose the child’s surname, even after divorce. The court of first instance held that this provision violated the Constitution’s equality principle and requested that the Constitutional Court annul the provision. The Constitutional Court unanimously agreed, holding that the Constitution, Article 41, establishes the equality between husband and wife; moreover, the right to choose a surname for the child was an element of custody. The Court noted that the Turkish Civil Code, Number 4721, had introduced material changes in husband–wife equality, and more importantly, articles that did not comply with the equality principle had been excluded from the law, such as the husband being the leader of the marriage union. The Court referenced the European Court of Human Rights, which held that any differing treatment based on gender, except for valid reasons, breaches the non-discrimination principle. According to the Constitutional Court, the wife and the husband were in the same position regarding their rights and obligations, both during marriage and in divorce; therefore, granting the right to choose the child’s surname exclusively to the father would have violated the Constitution’s equality principle.
Application by Court of First Instance to Annul the Surname Act in Part