Communication challenging French law on transmission of family names declared inadmissible (Michèle Dayras et al. v. France) (Joshua Wood)

Joshua Wood summarises the 2009 decision of the Committee on the Elimination of Discrimination against Women (CEDAW Committeein Michèle Dayras et al. v. France 

France’s Act on the transmission of family names came into force on 1 January 2005.  The Act provided that a child who was born after 1 January 2005 or was younger than 13 years of age at 1 September 2003 (i.e., was born after 1 September 1990) would assume his/her father’s surname, unless both of the child’s parents agreed and specified their intent to transmit to the child either parent’s family name or a hyphenated combination name (the transmission of hyphenated family names to subsequent generations was, however, prohibited).  In the absence of such parental agreement and intent, the father could exercise a veto right enabling the father’s family name to be transmitted to the child.  Under articles 61 and 61-1 of the French Civil Code, a person “with a lawful interest” could apply for a change of name (noting that children aged 13 years and above were required to consent to a name change).

On 6 July 2006, seven French women submitted a communication to the CEDAW Committee, claiming to be victims of violations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  Michèle Dayras and Micheline Zeghouani were unmarried and claimed that they had chosen to remain childless because the Act denied them the right to transmit their family names to their children.  Dayras also claimed that the Act prevented her from using her own mother’s surname.  Nelly Campo-Trumel, Sylvie Delange and Frédérique Remy-Cremieu were married and claimed that they were victims because the Act forced their children to take on their fathers’ surnames.  Hélène Muzard-Fekkar and Adèle Daufrene-Levrard were married and claimed that they were victims because the Act forced their children to take on their fathers’ surnames and because they were prevented from using their own mothers’ surnames.

The women claimed that France’s Act on the transmission of family names discriminated against married women and violated the principle of equality between men and women, contrary to CEDAW.  They based their claim on the fact that the Act:

  • gave fathers the right to veto the transmission of the family name of their wives to their children;
  • provided that fathers’ surnames should be transmitted to children in cases where the spouses disagreed about which partner’s surname should be passed onto their children;
  • automatically gave children their father’s surname in cases where their parents failed to specify that the mother’s surname should be used; and
  • prohibited a hyphenated name from being passed on from one generation to the next.

Some of the women also claimed that the Act discriminated against them because it prevented them from taking their mothers’ family names as their own.  Moreover the women argued that the Act “is not meant to establish equality between women and men in this area.”

The women did not specify which specific article or articles of CEDAW they considered had been breached by the Act.   

State Party’s observations on admissibility

France argued that the CEDAW Committee should declare the communication inadmissible under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol to CEDAW).  

First, it claimed that the communication was incompatible with its reservation* to article 16(1)(g) of CEDAW on the right to choose a family name and should be declared inadmissible.

Second, it submitted that Dayras, Zeghouani and Daufrene-Levrard were not “victims” within the meaning of article 2 of the Optional Protocol.  In this connection, it claimed that: the assertion of Dayras and Zeghouani that they chose to remain childless because the Act prevented the transmission of a mother’s surname to her child was “speculative and abusive;” and Daufrene-Levrard was not a victim because she had not provided her marital status to the State Party or offered proof that her children had been automatically given their father’s surname at birth.

Third, France asserted that Dayras, Muzard-Fekker and Daufrene-Levrard had failed to substantiate their claim that they had been discriminated against on the basis of their sex as a result of being forced to bear their fathers’ family name, as required by article 4(2)(b) of the Optional Protocol.

Fourth, the State Party submitted that the communication was inadmissible ratione temporis under article 4(2)(e) of the Optional Protocol with regard to Campo-Trumel, Muzard-Fekkar, Remy-Cremieu and Delange (in respect of her eldest child).  It asserted that the discrimination against these women ended when their children reached the age of majority because, after that point in time, only the children could decide to keep or change their family names.  As the children of these women attained the age of majority prior to the entry into force of the Optional Protocol for France, the State Party asserted that the women’s claims were inadmissible ratione temporis.

Fifth, the State Party claimed that the communication was inadmissible under article 4(2)(a) of the Optional Protocol because a substantially similar case had already been examined by the European Court of Human Rights and Delange had been one of the claimants in that case. 

Finally, the State Party claimed that Delange had failed to exhaust domestic remedies under the French Civil Code in respect of her youngest child, who was still a minor, in accordance with article 4(1) of the Optional Protocol.  It rejected the suggestion that the remedies would be unreasonably prolonged and therefore did not need to be exhausted, claiming that recent improvements had reduced the length of time needed to avail oneself of domestic remedies and such remedies had a high likelihood of success.   

CEDAW Committee’s interim decision on admissibility

In an interim decision on admissibility, the CEDAW Committee concluded that the communication appeared to raise issues under articles 2 (general obligations), 5 (stereotyping etc.) and 16(1) (marriage and family relations) of CEDAW and invited the parties to provide observations in relation to those articles. 

Authors’ observations

The seven women argued that the Act violated articles 2, 5 and 16 of CEDAW.  They claimed that the State Party’s failure to take appropriate measures to modify or abolish the customary norm by which married women traditionally bore their husbands’ surnames – a norm “grounded in married women’s submission to their husbands’ authority” – violated article 2 of CEDAW.  They also contended that the Act violated article 5(a) of CEDAW by maintaining paternal superiority and failing to guarantee de facto equality between parents.  Furthermore, the women claimed that France’s reservation to article 16(1)(g) had no effect in their case.

State Party’s observations on the merits

The State Party claimed it had not violated article 2, 5 or 16 of CEDAW.

Citing the lex specialis principle (that only the most specific relevant articles should be considered), the State Party asserted that the communication could be considered only under article 16(1)(g) of CEDAW.  Furthermore, the State Party claimed that its reservation to article 16(1)(g) prevented the Committee from considering alleged violations of this provision. 

The State Party went on to argue that, even if the Committee considered the communication under articles 2, 5 and 16(1) of CEDAW, it had not violated those provisions.  The State Party asserted that there was no discrimination because all children were named in an identical manner, regardless of their sex.  It also said that there had been no discrimination in the case of those women without children.  In addition, France claimed that article 5 was irrelevant “since the law … does not relate to prejudices and customary practices based on the idea of the inferiority or the superiority of either of the sexes.”

More generally, France maintained that it was necessary to reconcile the right of the women to be free from discrimination and the right of their children to enjoy a stable civil status (accorded by the permanency of one family name).  France further maintained that the rationale underlying the Act’s provision, that the father’s name be transmitted to the child where the parents disagree on the choice of name, was in the best interests of the child, whose rights are considered paramount under article 16(1)(d) of CEDAW.  Furthermore, France argued that the automatic transmission of the father’s surname when the parents disagreed would prevent litigation and limit the chance of children being the centre of their parents’ conflicts.

CEDAW Committee’s final decision on admissibility

The CEDAW Committee declared the communication inadmissible, through majority and concurring opinions.

Majority’s decision on admissibility

Citing the lex specialis principle, a majority of the Committee ultimately decided that the communication should be considered under article 16(1)(g) of CEDAW and, on this basis, declared the communication inadmissible in relation to all seven women.  

The majority explained that article 16(1)(g) of CEDAW applies only to married women, women in de facto unions and mothers.  As Dayras and Zeghouani did not fall within any of these categories, it concluded that they could not be considered “victims” under article 2 of the Optional Protocol.  It explained that, “since Ms. Dayras and Ms. Zeghouani are not married, do not live in husband-and-wife relationships and do not have children, they cannot claim rights pertaining to the use or the transmission of family names and cannot be victims of a right whose beneficiaries are only married women, women living in de facto union or mothers.”  In other words, they could not be considered “victims.”

The majority concluded that because the children of Campo-Trumel, Muzard-Fekkar, Remy-Cremieu, Daufrene-Levrard and Delange (in relation to her eldest child) reached the age of majority before the Optional Protocol entered into force for France, their claims were inadmissible ratione temporis.  It explained that “as at 1 January 2005, all the children of these five authors, except the youngest child of Ms. Delange, had reached the age of majority and had therefore become the primary-rights holders in relation to acquiring or changing their family names.  From then on, it is up to them, and not their mothers, to decide whether or not to change their family names.” 

Finally, the majority concluded that Delange had failed to exhaust domestic remedies in respect of her youngest child and the requirement to exhaust those remedies could not be waived in her case.  It also concluded that Dayras, Daufrene-Levrard and Muzard-Fekkar had not exhausted domestic remedies and had failed to demonstrate that they had suffered “any sex-based discrimination when they receive[d] the family name of their fathers at birth, as the family name they are given is not dependent on their sex.”

Individual (concurring) opinion

Seven Committee members issued an individual opinion, in which they concurred with the majority’s conclusion that the communication was inadmissible.  However, their reasoning differed, ultimately finding the communication inadmissible due to the authors’ failure to exhaust domestic remedies.   

* On 14 October 2013, the State Party informed the Secretary-General that it had decided to withdraw its reservation to article 16(1)(g), which it had made upon ratification of CEDAW.

Communication No. 13/2007, UN Doc. CEDAW/C/44/D/13/2007 (4 August 2009)

Decision

Joshua Wood is a L.L.B. student at the University of New South Wales and was an intern with the Australian Human Rights Centre in Semester 1, 2013.

This summary is published as part of the Optional Protocol to CEDAW website – Australian Human Rights Centre partnership.

AHRC

 

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