Automatic imposition of surname order, paternal followed by maternal, when parents disagree, is discriminatory – Violation of Art. 14 in conjunction with Art. 8 ECHR

EUROPE: DOMESTIC VIOLENCE

European Court of Human Rights, judgment, 26 October 2021, Léon Madrid v. Spain (Application no. 30306/13).

«The case concerned the applicant’s request to reverse the order of the surnames under which her minor daughter (born in 2005) was registered. At the relevant time Spanish law provided that in the event of disagreement between the parents, the child would bear the father’s surname followed by that of the mother. The applicant argued that this regulation was discriminatory. The automatic nature of the application of the law at the relevant time – which had prevented the domestic courts from taking account of the particular circumstances of the case at hand – could not, in the Court’s view, be validly justified under the Convention. While the rule that the paternal surname should come first, in cases where the parents disagreed, could prove necessary in practice and was not necessarily incompatible with the Convention, the inability to obtain a derogation had been excessively stringent and discriminatory against women. In addition, while placing the paternal surname first could serve the purpose of legal certainty, the same purpose could be served by having the maternal surname in that position. The reasons given by the Government had not therefore been sufficiently objective and reasonable in order to justify the difference in treatment imposed on the applicant.»

Direct link to the judgment (hudoc.echr.coe.int)
Accès direct au communiqué de presse (hudoc.echr.coe.int)
Direct link to the press release (hudoc.echr.coe.int)

Gender Law Newsletter FRI 2022#1, 01.03.2022 - Newsletter abonnieren