Should women that divorce retain their former husband's surname?

Provenance, identity, family. But often it is mere social etiquette. In 2020, there were 64,356 marriages in Switzerland, based on the latest data provided by the Federal Statistical Office. Of those, 22,729 women chose to take their husband's surname, and 983 men chose their wives' surname. Whereas among those who chose to keep their unmarried surname, men stood out, as many as 30,588, compared to women, 8,345. The figure is astonishing, but not too surprising. Since January 1, 2013, the new rule on marriage allows each spouse to retain his or her own surname, or to bear that of the husband or wife. So "the law grants the possibility to women-who in the past were obliged to take their husband's last name-to take their own," remarks lawyer Roberta Soldati.

Frequently behind the choice is a matter of spite or the desire to maintain a status

Recently in Bern, the National Committee on Legal Affairs also reviewed a parliamentary initiative calling for a return to double surnames.

But, what becomes - now - when spouses decide to end their marital union? Well, the surname matter becomes controversial.

According to Article 119 of the Civil Code, as a matter of fact, "the spouse who changed his or her surname at the time of marriage shall retain the new surname even after the divorce." Barring exceptional cases, "the law is a one-way street: there is no possibility for a former spouse to force the other to take back his or her original surname," attorney Soldati further notes. Perhaps due to custom, it is more common for the woman at time of marriage to acquire her husband's unmarried surname. "The feeling is that-even though the law allows the woman now to keep the maiden surname-there remains a kind of, how should I say, patriarchal imprinting whereby women willingly acquiesce to this custom," observes attorney Igor Bernasconi, an expert in family law.

Each of the spouses then-according to the Code-"may declare at any time to the registrar that he or she wishes to resume his or her surname as single or unmarried." But what if the husband does not agree to his wife retaining her married surname even after the divorce? Nothing. "Because from the regulatory point of view there is no solution," intervenes lawyer Francesco Barletta. "Analyzing the high number of divorces in Switzerland, 17,044 in 2021 according to the Federal Statistical Office," Barletta adds, "the tendency is for the wife to keep her married name even after the divorce. The underlying reasons are many and subjective, however they can be traced more generally to familiarity and convenience." And then, Bernasconi explains, "I've had cases where the husband experienced a lot of discomfort because the wife did not want to give up her last name after the divorce, but he couldn't do anything about it, so we concentrated on other aspects of divorce."

It is up to the legislature to give the law a new, broader reading given the case history

The crux of the matter lies with the fact that at present, from the legal point of view, the right for a spouse to resume his or her maiden or maiden name is characterized as a strictly private right, subtracted from the free agreement between the parties. Outside of legal language, it implies that in principle this cannot be formally regulated in a divorce agreement. "In our opinion, this is a basic contradiction," says Soldati. "The spouse who chooses to keep the displaced surname, in our country frequently is the woman: she does it perhaps out of reprisal or because she does not want to give up a status that the surname gives her. And the spouse cannot do anything, in this respect for me there is still too much inequality of treatment between men and women. So the legislation should be changed."

The last name is not only a registry identifier, it can also be a social label, an appellation by which people are recognized. For this reason, many women commonly use the middle surname, turning it into a kind of distinguishing feature, especially when their husband is a famous person, or is known in a certain social milieu.

This notion might have been valid for the past when women did not have a role in the society in which they were living and getting married was considered the entry into society. It is peculiar that given the evolving role of women, the new law fossilizes on a concept that is in my view archaic today. This is not meant to reduce the argument to a critique concerning a custom codified over time but which must now be considered obsolete and outdated. Once the marriage bond terminates with divorce, all civil effects related to the marital bond cease, and all the more reason why the retention of the husband's surname no longer makes sense. Logically, it should cease with the divorce decree (once it becomes final), simply as a matter of identity and a correspondence of current/actual status. Both parties have the same right to remake their life to want to remarry--I will break a spear in favor--of the men who should feel free to want to eventually re-gift their surname to their (new) wife without there being a "literal" tie to the past (archaic legacy) to the use of their surname. Women who are empowering themselves in the working world and demanding fairness on equal terms in the workplace must do so in interpersonal relationships as well, and abandon old customs. To remain tied to a surname only by principle, by etiquette, by social role, once the marital relationship is over, to stay tied to obsolete customs, is a going backward as well as not wanting to reinstate one's maiden name, is a bit of denial of one's origin one's true and real identity. That being said, I believe that a further effort should be made by the legislature; with the new legislation has freed up the right "before" marriage between the future husband and wife as to which surname to select for the spouses, which one to give to the children, it is therefore necessary to liberalize the right even after the marital relationship ends, so with divorce all civil effects automatically cease, even the retention of the former spouse's surname.