Dergiler / Uluslararası Politik Araştırmalar Dergisi / 2017 / Cilt: 3 - Sayı: 2
SON YARGI KARARLARI IŞIĞINDA KADININ SOYADI
- Sayfa
- 37–58
- DOI
- —
Özet
Türk Medeni Kanunu’nun 187. Maddesi incelendiğinde evlenen kadın, soyadını değiştirmeye zorlanmaktadır. Bu maddenin kadının kişilik hakkını, ayrımcılık yasağını ve kamu düzenini ihlal edip etmediği birçok karara konu olmuştur. Türkiye’de 2010 yılında yapılan değişiklik sonucunda Anayasa Mahkemesi'ne bireysel başvuru kabul edilmiş olunup, soyadı sorunu Anayasa Mahkemesi tarafından bireysel başvuruyla da incelenmiştir. Bu çalışmada kadının soyadına ilişkin Avrupa İnsan Hakları Mahkemesi, Anayasa Mahkemesi ve Yargıtay kararları ile Alman hukuku dikkate alınarak soruna çözüm önerisi getirilmeye çalışılacaktır.
Abstract
The problem of women’s surname has been one of the most controversial matters in European Court of Human Rights as well as in the Turkish jurisprudence. According to the "Turkish Civil Law Art. 187 ", married women are bound to carry their husband’s surname. They are allowed to use their former surname before their husband's surname either with a written application approved by the marriage officer, or later through written permission of Government Administration. Women can claim the right to use one surname only, even if they had two before marriage.” Turkish Law Art. 187 forcing women to carry their husbands’ last name is contrary to the principle of democracy and it has been discussed in front of many courts. In Turkish law, child takes his father's surname when parents are married, otherwise his mother's last name. Women birth name is replaced by husband's surname after marriage and this is against freedom and equal opportunity. Acquisition and replacement of the surname should be a personal right. It is instead regulated by the Family Law against personal rights. Individuals are socially well-known by their names and surnames. For this reason, the right to one's name and surname belongs strictly to one's personal rights. Using a surname can be a privilege but at the same time an obligation. Surname is "non erasable". Once surname is acquired, it can be changed only by justice for justified reason. The preservation of the invariance and continuity of the names and surnames of persons, is not only interest of the owner, but it is also interest of the society in which the person lives. Indeed, the name and surname of the person are distinguished from other persons in society in his social relations and legal procedures. In this respect, securing the permanence of the names and surnames of the persons prevents the confusion and ambiguity in determining the rights and obligations. Forcing an adult to change his surname violates his personal rights as well as the public interest. In this essay, the problems of the women's surname during marriage are discussed in light of the decisions and to make improvements.