Turkish Family Law in Context

17.02.2019

The Family Law Act of 1917 (Hukuku Aile Kararnamesi), adopted in the Ottoman Empire, was the first codification of Muslim family law. The act was based on the sharīʻa provisions of all four legal schools of fikh. The first book “Marriage” contained 101 articles, the second book “Divorce” contained 56 articles. In addition to the sharīʻa provisions, the Act contained a definition of marriage and family and adopted through the influence of the European legal tradition it also provided for the registration of marriage contracts. The Act was valid in Syria until 1953, in Jordan until 1951.

The Lausanne Peace Treaty of July 24, 1923, which marked the end of the Ottoman Empire and the creation of a new Turkish state, imposed an obligation in Art. 42 to reorganize the legal and judicial systems. The Republic of Turkey was proclaimed on October 29, 1923. In 1924, the Constitution of the Republic of Turkey was declared, proclaiming the equality of men and women, but this provision could not be implemented in practice while Muslim family law was applicable and religious courts were functioning.

In the process of the Westernization of the entire legal system of the newly founded Turkish state, Mustafa Kemal Atatürk was guided by the laws of European countries, in particular, by the Italian Penal Code, the French Administrative Code, and the Swiss Civil Code of 1907. The Swiss Civil Code of 1907 was the most modern code of all European civil codes in force at the time, it was drafted in understandable (French) language, and Switzerland remained neutral in the First World War.

Thus, in 1926, as a result of the reception (iktibas) of the Civil Code of Switzerland, the Civil Code of Turkey was adopted. The adoption of the Civil Code and the reform of the judicial system (the abolition of religious courts in 1924) put an end to the Millet system of the Ottoman Empire: the Turkish Republic has one Civil Code and one judicial system for all Turkish citizens, regardless of their confession.

In 1934, the Family Name Act (Soy Adı Kanunu) and the Regulations about surnames (Soy Adı Nizamnamesi) came into force, contributing to the consolidation of the Turkish nation by creating a uniform anthroponomical system.

Efforts to update the Civil Code had been unsuccessfully going on for a number of decades. Thus, the Turkish Civil Code of 1926 was valid with amendments and modifications until January 1, 2002, when the new Turkish Civil Code came into force (Türk Medeni Kanunu – hereinafter referred to as TCC). Each article of the TCC refers to the corresponding article of the Swiss Civil Code, and the term “Turkish-Swiss law” is in active use among Turkish legal doctrines. Family courts were established in 2003, competent to hear family law disputes and the recognition of foreign court decisions on family law in Turkey.

Engagement  Marriage is preceded by an engagement (Nişanlanma). In Muslim family law, engagement is referred to as “hitba” (hıtbe), in the customary law of the Turks “to be engaged” is “söz vermek”, “söz kesmek”.

Different views exist  of the legal nature of engagement. If an engagement is a contract then Art. 22 of the Law of Obligations is applicable, or family law contract sui generis.

The TCC does not stipulate the form of the engagement. The decision of the Supreme Court of Turkey on November 24, 1998, clarifies that engagement occurs when a woman and a man wanting to marry express such a desire, in accordance with customs (örf ve âdete uygun). The engagement may be done in writing, in oral form, or by performing concludent actions (for example, giving a very expensive gift to a woman, meeting her relatives as a groom, etc.)[1].

Marriage  The TCC 1926 abolished polygamy, introduced the official (secular) marriage (resmi nikah), made men and women equal in rights to divorce, and subjected divorce to court rulings on specified grounds. Articles 135-144 of the TCC contain the material and formal conditions of marriage. The age of marriage is 17 years.

Impediments to marriage are:

1) Kinship. Marriage is forbidden between:

  • ascendants,
  • brothers and sisters, between uncle and niece and aunt and nephew,
  • the adopter and the adopted and their relatives.

2) Until the dissolution of the previous marriage a person cannot enter into a marriage;

3) Mental illness;

4) A woman cannot remarry until three hundred days have passed since the date of termination of the previous marriage.

The marriage price (başlık) is not a legal condition of marriage, but in some regions the payment of the marriage money is very common (in Eastern Anatolia – 42.8%, in the Aegean region – 6.5%).

The population of Turkey is very heterogeneous, and there is a contrast between the social and economic structures in the eastern regions and western regions. The lifestyle differences between rural and urban areas are striking.    Marriage between cousins is common in Turkey – its average rate being about 25%.  However, since 1980 there has been a campaign against consanguineous marriages. Consanguinity rates in Turkey vary from 17.5% in the Aegean region to 42.6% in Southeast Anatolia[2]. Other forms of marriage are levirate and sororat marriages, marriage between the children of a widowed man and a widowed woman (taygeldi), blood price, and berder which is when two men marry each other’s sisters[3].

Marriage ceremony  Persons wishing to marry submit an application, an extract from the family registry, and a medical certificate. A foreign bride must present a marital status certificate (certificat de capacité matrimonial).

The marriage can be registered by the following people:

– an official of the General Directorate of Population;

– a Mayor;

– a village headman (mouhtar);

– a Mufti, an official of the Directorate of Religious Affairs (Diyanet) – since October 2017.

Newlyweds receive a marriage certificate (aile cüzdanı) and the marriage registration is completed in the civil acts register.

 Only after having received a marriage certificate, can the spouses have a religious marriage (dini nikah, imam nikahi) – art. 143 TCC  (evlenme töreni biter bitmez evlendirme memuru eşlere bir aile cüzdanı verir. Aile cüzdanı gösterilmedelefrake elemendündırı verir, inddırni verir. Röiren verenii geçerli olması dini törenin yapılmasına bağlı değildir).

In accordance with a study conducted in 2003, the following data was highlighted: exclusively religious marriage in 1968 was concluded by 15% of the population, in 1978 by 12% of the population, in 1988 by 8% of the population, in 1998 by 7% of the population, and in 2003 by 5.8 % of the population. Depending on the level of well-being, the following picture emerges: 15% of poor families, 4% of middle-income families, and 1% of wealthy families enter into a religious marriage. In 2018, exclusively religious marriage was concluded by 1.1%, and exclusively official marriage was concluded by 1.8%. The overwhelming majority of those entering into marriage hold two ceremonies — official and religious ones — 97.1%.

One of the factors determining the “vitality” of a religious marriage is the convenience of divorce for a husband, since an official marriage, unlike a religious marriage, cannot be dissolved unilaterally (talak). The big problem is the status of children born in a religious marriage. Children were considered illegitimate for official authorities, but legitimate for the population. So-called ‘Amnesty laws’ had to be passed by the Turkish government several times allowing for the retrospective legalization of marriages and children by registering them in the civil status registry.

Decision of the Constitutional Court of Turkey No. 2015.51 dated May 27, 2015 revolves around Art. 230 of the Turkish Criminal Code.

Article 230 of the Turkish Criminal Code titled “Multiple or fraudulent marriage, religious marriage ceremony”:

(1) A person who marries another person although he/she is legally married at that time is punished with imprisonment from six months to two years.

(2) Any bachelor person who officially gets married to a person known as married to another person is punished according to the provisions of the above subsection.

(3) Any person who attempts to get married by concealing his/her identity is sentenced to imprisonment from three months to one year.

 (4) The statute of limitation for the offences defined in the above subsections starts to run as of the date of decision stipulating the cancellation of marriage.

 (5) The couples who marry by arranging a religious ceremony without executing official marriage transactions are sentenced to imprisonment from two months to six months. Both the public action and the punishment imposed thereof, is abated with all its consequences when the civil marriage ceremony is accomplished.

 (6) Any person who conducts a religious marriage ceremony without seeing the certificate of marriage is punished with imprisonment from two months to six months[4].

The Court states, referring to Art. 20 and 24 of the Constitution, that “By imposing a penal sanction on those who marry by arranging religious ceremony without executing official marriage transactions or those who conduct a religious marriage ceremony without seeing the certificate of marriage, the contested provisions of law introduce an explicit limitation on people’s right to respect for private and family life and their freedom of religion and conscience. As a matter of fact, it is beyond any dispute that people’s choices on how to establish their marital relationship and establishing such links according to the religious rituals and practices fall within the scope of the right to demand respect for his/her private and family life. With respect to the freedom of religion and conscience, “the freedom to manifest religion or belief” encompasses a broad range of acts such as worship, religious ritual and ceremonial acts, and practices and teaching in accordance with internationally recognized norms. Therefore, there is no doubt that marrying by arranging religious ceremony or conducting a religious marriage ceremony falls within the scope of the said freedom”.

Does a religious marriage entail any rights and obligations?

The European Court of Human Rights provided an answer to this question in the case of Serife Yiğit v. Turkey. The applicant, the mother of five children, could not receive a pension for the loss of a man with whom she had lived in a religious marriage for 26 years. “Taking into account the importance of the principle of secularism in Turkey” the Court accepts that the difference in treatment between civil and non-civil marriages pursued the legitimate aims of protecting public order and protecting the rights and freedoms of others, namely women.

 The court concluded that Turkish legislation, which did not give the right to a retirement pension, did not contradict either Article 8 of the Convention or Article 14 of the Convention.

Maternal and Paternal Filiation

Maternal filiation is established through the birth of a child by a particular woman. Paternal filiation is established as a result of the marriage of the man with the mother of a child if the child is born while the spouses are married or within 300 days after the dissolution of the marriage – Article 285 of the TCC.

If a child is born out of wedlock paternal filiation is established through the declaration of a man who may – submit an application to a court, civil registry, state his declaration in his will or a document authenticated by a notary (Art. 295 TCC). These provisions are very important as paternal filiation relates to cases when a child is born in a religious marriage.

Parental custody of the child  Parental custody of a child, and also after a child has reached majority in case of his/her incapacity, is referred to by a term from the Muslim family law – velayet.  It is regulated by Art. 335-363 of the TCC.   Parental custody arises due to the fact of the birth of a child or as a result of a court decision granting the right of parental custody to a third party (guardian – vasi).

The TCC does not define parental custody, but Art. 339 lists the constituent elements of this notion which are: child care and education; property management; legal representation; maintaining the welfare of the child before third parties.

In the old TCC Art. 267 the right recognized for the child’s parents to physical punishment (tedip hakki). In the Swiss Civil Code, the concept of custody of a child also includes the right to his physical punishment, although a special article (Article 278) was excluded as a result of the 1976 reform. However, Article 389 of the TCC has a special provision that the child must be obedient to his parents (Çocuk ana ve babasının sözünü dinlemekle yükümlüdür). A child cannot leave the family home without the consent of his parents and cannot be taken from his parents without legal grounds (Ana ve babasının rızası dışında evi terk edememektedir).

The notion of ‘benefit of the child’ (cocuğun yararı) is the criterion for exercising custody over the child. As noted in the doctrine, the concept of “the benefit of the child” includes taking care of his physical, sexual and moral development, as well as taking care of his social, legal and economic status.

The recommended model for the upbringing and education of a child necessarily includes religious education – article 340 of the TCC.

According to Article 366 of the TCC, the right of parental custody (velayet) during marriage belongs jointly to the mother and father of the child. Art. 337.1 states that if the parents of the child are not married, the right of parental custody belongs to the mother of the child. This is one of the important innovations in the new TCC. In accordance with Art. 313 of the Civil Code of 1926, if the parents of the child were not married, the judge decided the question of custody, he could attribute the right of parental custody to either of the parents, and he could appoint a guardian (vasi). In accordance with the current TCC, the court may appoint a guardian (vasi) only if the mother is a minor or incapacitated.

 In case of dissolution of the marriage or separation of the spouses, parental custody is attributed to one of the parents of the child.  The opinion of the child can be considered in view of his age. Brothers and sisters are not to be separated. The family judge focuses on the benefit of the child. The Supreme Court emphasized that “a young child needs care and affection of the mother”, and only if she cannot take proper care of him, then the right of parental custody goes to his father. It should be emphasized that Turkish family law, like Swiss family law before the 2000 reform, does not recognize joint parental custody of a child.

The other parent, who is not invested with parental custody, has the right to a personal relationship (kişisel ilişki hakkı) with the child. This is regulated by Art. 323-326 of the TCC. The right to a personal relationship includes the right to have contact with the child, and the right to receive information about his life, etc.

Persons entitled to have the right to a personal relationship with the child, are understood by judicial practice to be a fairly wide range of persons, both related to a child and not related: his/her brothers, sisters, grandmother, grandfather, aunt, uncle, nurse, stepmother, stepfather, and similar persons.

The parent not invested with parental custody must contribute to the expenses of raising the child in proportion to his financial means (alimony).

Deprivation of parental custody of the child   Art. 348 of the TCC enlists the grounds for depriving parental custody (Disease of parents, abandonment of a child, etc.). Art. 53 of the Turkish Penal Code establishes that a person convicted of a criminal offense of more than five years in prison is deprived of parental custody for the term of his imprisonment.

 The circle of persons who have the right to file a claim for deprivation of the right to parental care is practically unlimited. Since the well-being of a child affects public order, in the event of a threat to the physical and moral development of the child, any person (relatives of the child, family friends, neighbours) has the right to apply to the court asking for measures to protect the child[5].

Matrimonial property regime  Under the 1926 TCC separation of property was the legal matrimonial property regime. Under the 2002 TCC ‘participation in acquisitions’ is a legal matrimonial property regime. It follows the Swiss approach. The other three matrimonial property regimes open to spouses through contract are separation of property, community of property and shared separation.  “Participation in acquisition” includes all goods acquired by spouses during marriage (art. 219).

Divorce  Turkish divorce law on the whole retains the basic principles laid down in the Civil Code of 1926, with the amendments made in 1998, which provided for the possibility of divorce by mutual consent and divorce in the case of a three-year separation of the spouses after a court refusal to dissolve the marriage.

The following categories of grounds for divorce are distinguished in the doctrine:

1) general and special grounds for divorce;

2)  absolute and relative grounds for divorce,

1) General and special grounds for divorce (genel ve özel sebepleri):

Special grounds for divorce are listed in Articles 161-165 of the TGC:

– adultery (which was criminally punishable until 2004);

– actions that constitute cruel treatment, a threat to life, or actions defaming the honor and dignity of a spouse;

– the commission of a crime and a vicious lifestyle;

– abandonment of a spouse;

– incurable mental illness.

Art. 166 TC C lists three general grounds:

– the irretrievable breakdown of a marriage;

– mutual consent of the spouses who must have been married for at least one year, and agree on all relevant matters (parental custody of children, division of property, alimony). The spouses draft a so-called divorce plan (boşanma protokolu), which is submitted to the court simultaneously with the filing of a divorce suit;

– Separation for three years after the court’s refusal to dissolve the marriage on one of the specified grounds.

2) Absolute and relative grounds for divorce (mutlak ve nispi sebepleri).

In contrast to the divorce law of many other states, in which there was a gradual transition from the model of “divorce – sanction ” to the model of “divorce – statement of fact” (in Switzerland as a result of the 2000 reform), the concept of “guilt” ( kusur) is very important for Turkish divorce law. The guilty spouse pays moral, material compensation, alimony to the injured, “innocent” spouse. Depending on the criterion of the guilt of the spouse, there are absolute and relative grounds for the dissolution of the marriage. Absolute grounds are adultery, abandonement of  a spouse, mistreatment, and mutual consent to a divorce. Relative grounds are the mental illness of one of the spouses, the shaking of the foundations of marriage, the commission of a crime and the conduct of a vicious lifestyle.

Grounds for divorce[6]

2014 г.

Irretrievable breakdown

Abandon

Vicious lifestyle

Adultery

Mental illness

Cruel treatment

Other (consensual divorce)

Other  (separation)

 

126.732

200

31

107

61

36

2.466

128

 

Maintenance obligations (nafaka)  In Turkish family law, there are several kinds of alimony obligations. These are:

  • alimony for the upbringing of the child (İştirak nafakası) (Art. 182 TCC);
  • alimony for the needy former spouse (yoksulluk nafakası) – (Art. 175 TCC);
  • alimony between ascending and descending relatives, between brothers and sisters (yardım nafakasi) Art. 364 TCC.

The amount of alimony is determined by the judge in proportion to financial means of a debtor.

1980 and 1996 Hague Conventions  

Turkey joined the 1980 Hague Convention in 2000.  Implementing Law – Law No. 5717 on Civil Aspects of International Child Abduction dated November 22, 2007. The 1980 Convention entered into force between Russia and Turkey in August 2017. Up to now, there has been no court decision for the return of a child to Turkey from Russia. The central  authority  is the Ministry of Justice of Turkey, the Department of International Law and International Relations.

[1] Abik Y.  Nişanlanma  ve Nişanlilik // AÜHFD  2005 available at:  http://dergiler.ankara.edu.tr/dergiler/38/273/2474.pdf.  P. 69

[2] https://www.dogrulukpayi.com/fotograf-galerisi/evlilik-istatistikleri-turkiye-nin-yalnizca-1-8-dini-nikah-kiydirmadan-sadece-resmi-nikah-kiydiriyor/5

[3] Poyraz Tacoğlu Tuğça, ‘Türkiye’de  Gerçekleştirilen Geleneksel Evlilik çeşitlerinin Nedenleri ve Evlilikler üzerinde Törenin Etkisi’//ODÜ Sosyal Bilimler Enstitüsü Sosyal Bilimler Aratırmaları Dergisi, December 2011 issue 4 available at: http://sobiad.odu.edu.tr/files/cilt2/cilt2sayi4pdf/poyraz_tacoglu_tugca.pdf. P. 117-118.

 

[4] http://www.constitutionalcourt.gov.tr/inlinepages/leadingjudgements/ConstitutionalityReview/judgment/2015-51.pdf

[5] Çelik Cemil, Velayetin kaldırılması// AÜHFD 2004 availabe at: http://dergiler.ankara.edu.tr/dergiler/38/274/2487.pdf.  P. 261

 

[6]Ozdemir Saibe Oktay, Türk Hukukunda Boşanma Sisteminde Revizion Ihtiyaçi//Public and Private International Law Bulletin No35 issue 1, available at: http://dergipark.gov.tr/download/article-file/410998 P. 34.

Share on facebook
Facebook
Share on google
Google+
Share on vk
VK
Share on twitter
Twitter
Share on linkedin
LinkedIn

Leave a Reply

Your email address will not be published. Required fields are marked *