Rejection of the request of a dual citizen to change her family name to her husband's first name

Facts

S.S. Si. (surname in italics) has been residing in Zurich for many years and holds both Swiss and Sri Lankan citizenship. She married K. Ma., a Sri Lankan national, on August 19, 2006 in Jaffna/Sri Lanka. The husband's surname (Ma.) was then registered as the common family name of the spouses domiciled in Zurich in the Swiss civil registry.

By submission dated February 28, 2008, S.S.Ma., née Si., applied to the municipal office of the Canton of Zurich to have her family name "Ma." changed to "K.", her husband's first name, based on Art. 30 para. 1 CC. The Directorate of Justice and Home Affairs of the Canton of Zurich rejected the request, which was confirmed by the High Court of the Canton of Zurich.

S.S.Ma. filed a civil law appeal with the Federal Supreme Court on October 23, 2009, requesting that the High Court's decision be overturned and the change of the family name "Ma." to "K." be approved.

Considerations

The Federal Supreme Court dismisses the appeal. It finds that according to Art. 37 para. 1 PILA, the appellant's name is subject to Swiss law with regard to the consequences of marriage. Consequently, she acquired her husband's surname "Ma." upon marriage, in accordance with Art. 160 para. 1 CC.

The Federal Supreme Court considers that a name change under Art. 30 para. 1 CC can only be approved if the new name complies with Art. 160 or Art. 30 para. 2 CC. Since the appellant does not request to place the name "K." before her husband's name "Ma." or to use "K." as a common family name, her request is not compatible with the principles of the applicable marital name law.

Furthermore, the Federal Supreme Court finds that the marital name regulations of the CC are incompatible with the ECHR, as they violate the right to respect for private…