The Human Rights Court ruled this Tuesday that, indeed, the prevalence of the paternal surname over that of the mother is discriminatory. An issue that the entry into force in June 2017 of the reform of the Civil Registry law stopped by annulling the regulation that legitimized the prevalence of the male surname. In practice, as the ECHR ruling questions, the authorization of both parents was necessary to put the mother’s last name first, something that did not happen if the father’s was first. From the reform, the parents have to agree and, if not, the person in charge of the Civil Registry will decide at the expense of the “best interests of the minor”.
In the ruling this Tuesday, in the León Madrid against Spain, the European Court of Human Rights maintains that there had been a violation of the European Convention on Human Rights in two of its articles: the 14th, prohibition of discrimination, and the 8, right to respect for private and family life.
The case concerned the applicant’s request to reverse the order of the surnames under which her youngest daughter (born in 2005) was registered. At that time, Spanish law provided that in the event of disagreement between the parents, the child would bear the father’s surname and then that of the mother. The applicant argued that this regulation was discriminatory.
The automatic nature of the application of the law at the time of the case – which had prevented the national courts from taking into account the particular circumstances of the case – could not, in the opinion of the European Court of Human Rights, be justified under the European Convention of Human Rights.
Although the rule that the paternal surname must come first, in cases where the parents do not agree, “may be necessary in practice and is not necessarily incompatible with the Convention, the inability to obtain a derogation has been excessively strict and discriminatory against women, “says the sentence.
Furthermore, “while putting the paternal surname first could serve the purposes of legal certainty, the same purpose could be served by having the maternal surname in that position. Therefore, the reasons given by the Government have not been sufficiently objective. and reasonable to justify the difference in treatment imposed on the plaintiff “.
Thus, the Court maintains that Spain must pay the plaintiff 10,000 euros for non-pecuniary damage and 23,853.22 euros for costs and expenses.
From the reform of the Civil Registry law, whose preamble refers to the fact that the norm “dispenses with the historical prevalence of the paternal surname” in order “to advance in gender equality”, it is obliged that both parents be agree and sign an authorization document – want to put her or his last name first – that any of them can send to the registry.
In the event that they do not agree or when the order of the surnames has not been indicated, the person in charge of the Civil Registry will require the parents to communicate it within three days. If this does not happen, “the person in charge will agree on the order of the surnames according to the best interests of the minor.” This is: avoid bad sonances when combining the surname with the name, common character or not of the surname, by alphabetical order or lottery, clarifies Justice.