THE MAIN PRINCIPLES OF FAMILY LAW
not present, without having a fixed term for
• Family is the foundation of society
• Protection of the family by the State
• Official Marriage principle
• Monagamout marriagle principle
• Everyone is equal before the law without
distinction as to sex
• Keeping the high interests and the welfare
of the child above all
• Protection of the women (not only the
mothers, but all women)
THE CONCEPT, THE IMPORTANCE AND
THE LEGAL CHARACTER OF
ENGAGEMENT
Engagement is the first chapter of the first title
Marriage.
Article 118/1 states that : “An engagement shall be
establishedby the promise of marriage”.
Article 119/1 stating that “An engagment does not
give rise to any enforceable claim to conclude the
marriage”
Article 29 of Turkish Code of Obligations, a
preliminary contract is subject to the form of the
main contract.
Article 119/paragraph 2 “Forfeit money or penal
cluse determined for the case of absention from
marriage may not be litigated and the contracts
concluded regarding this issue will be null and
void.”
Engagement cannot be qualified as a preliminary
contract according to law of obligations.
The engagemnt contract is a family law contract,
rather than a law of obligations contract.
THE MUTUAL PROMISES OF MARRIAGE
The promise to marry could be declared through an
implied behavior. The couple living together is not
the sole evidence of an engagement. Mutual
promises to marry could be declared expressly or it
could be declared through implied behavior.
IS THERE A TIME LIMIT TO WAIT FOR A
REPLY?
Article 4 of the Turkish Code of Obligations, “an
offer declared to a person present, without having a
fixed term for acceptance, lapses if it is not
accepted immediately.”
Article 5 of the TCO; “an offer declared to a person
acceptence, is binding for the offerer untill the time
which a timely and proper acceptence is unticipated
to reach to the offer.” I believe that the Article 4 of
the TCO is not applicable to engagement contracts.
IS THERE A NEED FOR AN ENGAGEMENT
BEFORE MARRIAGE?
The woman and the man planning to get married,
have to at some point get engaged even though their
wish could be other wise. Even if they want to skip
the engagement period in their lives, they can not
do that. The momnt the couple apply to the official
authorities in order to receive a date for the official
wedding receptions.
THE PARTIES TO BE OF DIFFERENT
SEXES
Turkish Civil Code. If one of the parties of the
engaged couple goes through a sex reassignment
surgery (SRS), the engagement becomes null and
void.
THE CONDITIONS FOR VALIDITY OF THE
ENGAGEMENT
CAPACITY NEEDED FOR THE
ENGAGEMENT
İt is without doubt that people who have full
capacity may get engaged without any restrictions
(TCC Art. 10). On the other hand; when a person
who is absolutely incapable (people who lack
discretionary power) tries to get engaged, the
mentioned engagement contract will be invalid no
matter what (TCC Art. 15).
Article 118/pr 2 of the TCC; will not be bounded
by the engagement if their legal representatives do
not give their consent.
Followingly Article 118/paragraph 2 states that; the
consent of a legal representative is only necessary
in holding the limited capacitated party responsible
for the financial results of the engagement.
Limited capacitated person can get engaged without
the consent of his/her representative. The
engagement is valid even with no consent.
Acknowledge the nonratification by the legal
representatives as an abuse of the right or breach o
the parental duties.
THE IMPEDIMENTS OF ENGAGEMENT
Kinship causing an impediment to marriage or
suffering from a mental illness that also is an
impediment, existence of adoption in between the
parties. It will be impossible and such promises will
also be against the law and against the morals and
customs.
According to Article 132 of the TCC woman is not
pregnant or if the divorced couple of the previous
marriage decides to remarry, than the period of
three hundred days is terminated by the court.
Article 132 is not absolute impediment to marriage.
She decides to get engaged during the mentioned
three hundred days period, this will not cause an
absolute impediment to marriage and this will not
invalidate the engagement.
Collusive engagement contracts are also null and
void according to Turkish Civil Law
If the proposal for marriage is the outcome of a
decoration of a joke, the engagement will not be
effectual, the opposing party has gotten the offer
straight than the offerer will be bound by his/her
offer.
PROVISIONS OF THE ENGAGEMENT
THE OBLIGATION TO CONCLUDE THE
MARRIAGE
Article 119/paragraph 1 and 2 of the TCC stating
that an engagement does not give rise to any
enforceable claim to conclude the marriage, and for
feit money or penal clause determined for the case
of abstention from marriage may not be litigated
however, payments that have already been made
may not be reclaimed as well.
According to the Turkish Civil Code, the marriage
has to be performed by the absolute free will
declarations of the parties.
THE OBLIGATION OF LOYALTY
Although during the engagement stage there is no
marital bond in between the parties, the burden of
being loyal to one another already exists.
The Article 185/paragraph 3 stating as: "The
spouses are obliged to be loyal and be helpful to
each other".
The obligation of loyalty here must be understood
as; "refraining from all behavior that will end up in
loosening the engagement bond between the
partners". The mentioned acts include; tight and
intimate relationships that raise doubts with the
third parties.
We also have to mention that in engagement, in
order for the acknowledgement of the breach of the
obligation of loyalty, there is no need for a sexual
intercourse to happen this is the opposite way
around for marriage.
RIGHTS ARISING FROM ENGAGEMENT
that a marriage would not happen and no support
would be given if both parties of the engagement
were alive, than it will not be possible to demand
compensation for the loss of support.
One of the parties of the engagement could abstain
from judgeship and arbitratorship if the case is
some way related to the other engaged party.
TERMINATION OF THE ENGAGEMENT
A. MARRIGE (ACHIEVEMENT OF THE
PURPOSE)
The engagement terminates as soon as the parties
are married each other.
As a result of this, from that moment on, articles
regarding marriage will be applied to the parties
mutual rights and obligations, the returning of what
they have received and to their claims for
compensation.
B. MARRIAGE WITH A THIRD
PERSON
The engagement will be terminated in an
unpleasant manner if one of the parties marries
someone other than his/her fiancé. The faulty party
causing the impossibility of marriage will have pay
compensation to the one that has the right.
C. DEATH OF ONE OF THE ENGAGED
PERSON (IMPOSSIBILITY OF THE
MARRIAGE)
If one of the parties of the engagement dies, than
the engagement ceases. This is because engagement
is an intuit personae contract. There is no way to
assign the role of being a fiancé to the inheritors or
to third parties. If one of the parties disappear and a
declaration of absence (disappearance) is taken,
than the same result will happen.
Besides death; one party going through gender
reassignment surgery will also be a ground for the
termination of engagement (TC Art.40).
However if one party has been hurt, disabled or got
ill in a way where he/she can not perform his/her
sexual duties any more, this will not provide a just
ground for the termination of the engagement but I
have to add that; these sort of grounds may provide
just causes for the unilateral breach of the
engagement for the opposite party.
D. OCCUERENCE OF THE
DISSOLVING CONDITION
General provisions of the engagement will be
applied to the time period in between the formation
of the engagement contract and the moment of the
realization of the dissolving condition.
E. OCCURRENCE OF AN ABSOLUTE
IMPEDIMENT TO MARRIAGE
Some impediments could be exemplified such as;
one of the engaged persons suffering from a
posterior mental illness that could not be cured
(TCC Art.145), adoption of one of the parties by
the other party of engagement, one party of the
engagement perpetually lacking his/her
discretionary power (TC Art. 125), posterior
realization of the fact that the engaged couple are
blood relatives or they have kinship by marriage
that will bean absolute impediment to marriage (CC
Art. 129).
F. PARTIES REACHING A
SETTLEMENT
If the parties have reached a settlement regarding
the finalization of the engagement, it will not be the
same as a unilateral breach of the engagement and
the parties and their parents and people acting like
parents can not exercise the right of demanding
material and immaterial compensation. Returning
of the gifts could still be claimed.
G. TERMINATION OF THE
ENGAGEMENT THROUGH
UNILATERAL BREACH
People with limited capacity do not have to get
ratification from their legal representatives for a
unilateral breach of the engagement and the legal
representative can not unilaterally breach the
engagement on behalf of the fiancé.
Refusal of the visits of the fiancé, an interruption of
the visits or the letters, getting engaged to a third
person, or marrying a third person, moving to
another city or another country without informing
the other fiancé, could all be submitted as examples
of implicit and unilateral breach of the engagement.
So both parties of the engagement are competent to
unilaterally breach their promise of marriage, even
if they lack just grounds.
If the breach of engagement did take place at an
engagement concluded under the influence of
mistake, fraud or duress, the party whose intent has
been defected may sue according to Art.120 of the
TCC. He/she could demand compensation to Art.49
of the TCC.
CONSEQUENCES OF THE TERMINATION
OF THE ENGAGEMENT
If the engagement is terminated because of the
engaged parties have married than, the articles of
marriage will be applied from then on.
When the relationship of engagement ceases
(without marriage), there happens an alteration in
the personal status’ of the parties of the engagement
per se.
In all situations terminating the engagement besides
marriage, reciprocal returning of the gifts must be
applied. This is relevant in cases where both parties
have reached to a settlement or when the marriage
has become impossible or even when the
engagement is breached on just or unjust grounds.
Material compensation
Claiming pecuniary compensation in cases of
breach of the engagement is regulated at the
Art.120 of the TCC.
So the only party under the obligation to pay
compensation is the one breaching the engagement
on unjust grounds or the one who causes the
engagement to terminate because of his/her faulty
actions.
Material compensation covers the expenses and the
sacrifices endured just for the sake of the
engagement.
The material loss he/she has suffered because of the
engagement and in short the expenses he/she has
made with the firm belief that there will be a
wedding in the future. These are reliance damages
instead of affirmative damages. It is a family law
contract.
Acting faulty could either be infringing the
engagement without a just cause or provoking the
other party to terminate the relationship because of
the opposing party’s faulty behavior.
His own faulty behavior, such as; loosing all his/her
fortune on alcohol and drugs, suffering from a
venereal disease, than the opposing partner can
claim compensation from the one who breached the
engagement unilaterally.
If the just ground for the termination of the
engagement is not caused by one of the parties,
none of them can claim compensation from one
another.
If there is unilateral breach when there is no logical
reason, than the other party could claim
compensation.
Claims arising from the engagement shall be barred
one year after the dissolution of the engagement.
The Article 10 of the Turkish Constitution stating
that; “ everyone is equal before the law without
distinction as to language, race, color, sex, political
opinion, philosophical belief, religion and sect, or
any such grounds.”
Two condition for the expenses to be claimed;
First; one is the party has to believe in a wedding to
happen when making the disbursement. The
expense before and after the engagement will not be
accepted.
Second; the losses and the expenses must be
incurred in good faith in contemplation of marriage.
When determining the expenses and losses to be
excessive or not, good faith principle, local
customs, family traditions and the social status’ of
the parties are takin into consideration.
In case they do not reach to an amicable settlement,
the fiancé who has the right to sue, will file a claim
for compensation. The same is true for the heirs of
the rightful fiancé if he/she is dead after the
unilateral breach of the engagement.
If he/she was the one who unilaterally breached the
engagement must also prove that the other party
was faulty.
If it was the defendant who unilaterally breached
the engagement that the plaintiff could just prove
that he/she ( the defendant) had no just grounds in
the breaking of the engagement.
In determining the amount of compensation, the
judge also will consider the role of the plaintiff
fiancé in the breach of the engagement and the
current value of the expenses incurred in
comparison to the assets of the plaintiff.
The right to demand material compensation is not a
personality right and because of this reason, it is a
heritable right when death happens, and it is also
transferable by a way of inter vivos transaction.
According to Art.120 of the TCC; the mother and
the father of the fiancés and the third parties acting
like them could also demand compensation. The
money must be spent for the engaged couple.
IMMATERIAL COMPENSATION
Immaterial compensation is a consideration in
response to the decrease that took place in
the emotional integrity of one party.
If all the conditions exist according to the Art.121
of the TCC, immaterial compensation
could also be demanded.
If one of the parties suffers gross injury due to the
breach of engagement without his/her fault
It is not possible for the third parties to claim
immaterial compensation due to the breach
of an engagement.
It will not be possible to claim compensation for
moral damages while there is a surviving
engagement and a demand of moral
compensation can not be exercised if the
engagement is terminated in some way
other than a unilateral breach.
Material and immaterial compensation cases could
be filed separately or they could be filed
all together.
If the engagement is breached and the other party
went though a major depression and he/she
had to be treated a very long time, is a
justifiable example of claiming moral
compensation. However it must be kept in
mind that; there needs to be a causality in
between the breach of the engagement and
the disease.
The moral compensation claiming party has to be
either without any fault or he/she has to be less
defective than the opposite party.
The determination of the immaterial
compensation
So by taking Art.121 into consideration, other types
of remedies such as apologizing and
reprobation, can not be demanded.
The allegation of immaterial compensation by the
inheritors and the inter vivos transfer of
moral compensation.
As per Art.25/ pr 4, the right to non-pecuniary
compensation can not be assigned to third
parties without the consent of the
defendant.
Returning of the gifts
In order for the returning of the presents, there must
be a valid engagement.
Returning of the gifts is regulated at the Art.122 of
the TCC. “Upon dissolution of the
engagement for any cause except
marriage, the engaged couple may reclaim
gifts they made to each other or the father
and mother or people who have acted just
like them may reclaim what they have
submitted to the engaged ones with the
exception of customary gifts.
It is not possible to demand returning of the goods
donated for the sake of performance of a
moral duty. The money paid to the other
fiancé in order for him/her to go through a
medical surgery or an amount paid to the
other party for a financial aid.
The gift
The usual gifts are the ones that do not have
extravagant prices according to the current
conditions and according to the usage and
customs.
If one of the fiancés has given a present to the other
party for the sole purpose of engagement,
and to buy that present, he/she has
undergone a vast amount of debt or he/she
had to dispose most of his/her assets, than
the above mentioned gift surely is an
outrageous priced gift.
If the gifts are gold, silver or precious stones and
they are still present among the properties
of the other party, than they will have to be
returned in kind.
The ratio legis of the Art.122 of TCC is that, if
there is an increase in the assets of one the
engaged parties, than on occasion that the
engagement is breached, this increase will
have to go back to where it belonged in the
first place.
THE CONDITIONS AND THE LEGAL
CHARACTERISTICS OF THE
CONCEPT
Unusual gifts is not a real action
When gifts are exchanged, the ownership will be
transferred to the opposite side and the
person giving the present will not have a
real right on it anymore.
Per Art.122/ pr 2; “if the gift can not be returned in
kind or in equal good form, than the
restitution shall be governed by the
provisions on unjust enrichment”.
If the engaged party was in good faith when he/she
transferred the gift to a third person, than
all he/she is going to return will be what is
left from the present in his/her hands.
If one of the engaged couple has given presents to
the other party in order to achieve an
immoral purpose or a goal that has been
prohibited by the imperative rules, than
demanding the return of the presents will
be out of the question.
The price that is going to be paid, will be the
market price of the gift of the filling date.
So the suit to be filled shall not be an action of
replevin, but it shall be an action of debt.
THE CONCEPT AND THE LEGAL
CHARACTER
The marriage ceremony has to be controlled and
directed by an official public servant. Marriage is a
transaction where a man and a woman declare their
mutual and consentaneous intents between them in
a form regulated by the Law. There are two main
viewsregarding the legality of the marriage.
II. THE PREREQUISITES FOR MARRIAGE
In order to conclude a valid marriage contract,
turkish civil code has brought special regulations
regarding capacity, form and the non-existence of
marriage impediments. If one of the prerequisites is
missing, this will be an obstacle to the formation of
marriage.
Marriage contract can be concluded in between
two people of two different sexes. It is not possible
for two people of the same sex to get married, gay
marriage is not regulated by the TCC.
A. CAPACITY TO MARRY
Legislators all around the world seek and regulate
conitions such as mental capacity and a certain age
in order for the couple to perceive the meaning of
conugal.
1. DISCRETIONARY POWE
Article 125 of the TCC states that; “People who do
not have discretionary power can not marry”. So
reaching to the marriage age is not enough by itself.
A person wishing to marry must also have
discretionary power. If the people without
discretionary power manage to get married, the
marriage will be null and void. The vital point is
that, the discretionary power of the person willing
to get married, must be present during the
matrimonial ceremony.
Lack of a constant discretionary power will cause
absolute nullity, while lack of discretionary power
for a certain period of time will be a ground for
relative nullity.
2. MARRIAGE AGE
Marriage by nature, requires the parties to reach to
a certain physical, mental and spiritual maturity.
The age provided in the code for marriage, is called
the “maturity for engagement”.
Art.124/pr1: “In order to be able to conclude a
marriage, the bride and the groom must have
completed their seventeenth year of age”. The
current Turkish Civil Code has determined the
matrimonial age as seventeen for both of sexes,
without making any discrimination between men
and women.
A. EXTRAORDINARY MARRIAGE AGE
As per Article 124/paragraph 2; “However in
exceptional cases and for a very important reason,
the age of marriage is reduced to sixteen forboth
men and women with the consent of the competent
judge.” According to the abrogated former TCC
Article 88/paragraph 2; “In exceptional cases and
for a very important reason, the age of marriage is
reduced to fifteen fo rmen and fourteen for women
with the consent of the competent judge”.
Extraordinary marriage age is also known for; “ the
judicial marriage maturity”.
The man or the woman to whose marriage the judge
will give consent to, must have completed hi/her
sixteenth year of age. To claim for a consent from
the judge is a strictly dependent right and for this
reason, even if the person is a person with limited
capacity, he/she could apply to the court by
himself/herself. The legal representative can not
apply to court on his/her behalf.
Extraordinary marriage age regulation can be
applied only if there is an extraordinary condition
and a crucial reason fro the conclusion of an urgent
marriage contract.
The judge will hear the legal representative
whenever possible. Hearing the legal representative
is voluntary not compulsory. The judge may
consent to a marriage if he/she is convinced that
there is a just cause because of an extraordinary
condition, even though the legal representative
thinks otherwise.
B. ORDINARY MARRIAGE AGE
People who have completed eighteen years of age,
who have discretionary power and who are not
subject to partial capacity (limited capacity), have
full marriage capacity. In order to be full
capacitated, a person must reach the certain age
regulated by the law.
C. PEOPLE INCAPACITATED FOR
MARRIAGE
These people can not marry even if they receive
consent from their legal representatives or
resolution from the competent courts.
D. PEOPLE WHO NEED CONSENT FROM
LEGAL REPRESENTATIVE
Seventeenth year olds and mature but interdicted
people, can marry after they receive the consent of
their legal representatives. The legal representatives
do not declare their intents on behalf of the limited
capacitated people but they give consents to the
declaration of intents of marriage submitted by the
limited capacitated fiance. The legal representatitve
just manifests his/her consent to marriage.
If the legal representative does not give consent to
marriage without a just cause, the minor or the
person with limited capacity may apply to court to
get the permission for marriage
III. MARRIAGE IMPEDIMENTS
It must be mentioned that not all the marriage
impediments have the same affects on the marriage
realized. Some impediments cause absolute nullity;
While others do not affect the validity of the
marriage. First sort of impediments are called
“definite marriage impediments”, the second type
are called “indefinite marriage impediments”
A. DEFINITE MARRIAGE IMPEDIMENTS
Definite marriage impediments are the conditions
that surely mus not exist, in order for a marriage to
be valid.
1. KINSHIP
a. Kinship by blood
The proximity relations in between people born
from the same person or in between people coming
from the same ancestors. Kinship by blood is
separated into two section. The first is lineal
kinship which means the descending of people from
each other . Second section is made up of then
proximity in between people coming from a joint
root that is called the collateral kinship.
As per art.129/pr1; “Marriage is prohibited between
the following persons;
Between ascendants and descendants, between
brothers and sisters; between aunts, uncles and their
nephews and nieces”.
It does not make any difference if ascendants and
their descendants are close or distant in degree or
not.
Marriage prohibition is limited up to the third
degree.
b. Kinship by marriage
Kinship by marriage is an impediment of marriage
but it has a narrower application area.
As per Art.129/pr2 : “Marriage is prohibited
between the following persons;
Between one of the spouses and ascendants and
descendants of the other party, even though the
marriage which created kinship by marriage has
been terminated.”
A person after the finalization of his/her marriage,
can not marry the ascendants orthe descendants of
the other party. This is beacuse, kinship by
marriage does not end when the dissolution of the
marriage happens. A marriage contract concluded
in between people who have kinship by blood or
kinship by marriage up to the prohibited degree,
will be exposed to absolute nullity.
c. Adoptio
As per Art.129/pr 3: “Marriage is prohibited in
between the following persons;
Between the adoptive parent and the adopted child
or between one of them and the other one’s
descendants or the other one’s spouse”.
2. EXISTENCE FO A PRESENT MARRIAGE
The person already married at the time of the
marriage ceremony is also in the frame of
impediments of marriage. As per Art.130m of the
TCC; “Whoever intends to enter into a new
marriage, is under the obligation to prove that
his/her former marriage has been annulled or
dissolved”. And as per Art.145/pr1; “ In the
following conditions, the marriage is void with
absolute nullity:
One of the spouses being already married at the
time of the marriage”. So the existence of a present
marriage is one of the reasons that can cause
absolute nullity of marriage. When these two
Articles are read together, it is obvious that for a
person who desires to remarry must terminate the
previous one. If the marriage has been terminated
with death, the death certificate and identify card
shall be submitted to the wedding registrar.
3. MENTAL ILNESS
Mental illness is also a definite marriage
impediment. As per Art.133 of the TCC; “Persons
who are mentally ill (of unsound mind), are
incapable of marrying unless an official health
report states that there is non reason to bar their
marriage”.
If the mental disorder destroys the menta lcapacity
and that person looses his/her capacity to make
mature judgments, than he/she already does not
have marriage capacity accordig to Art. 125 of
TCC.
B. INDEFINITE MARRIAGE IMPEDIMENTS
Indefinite marriage impediments are the ones if the
marriage officer performs the matrimonial
ceremony even though these impediments exist,
they will not cause the marriage to become invalid
because of absolute annulment or relative
annulment.
The indefinite marriage impediments are; period of
delay and certain contagious diseases.
1. PERIOD OF DELAY
This is an indefinite marriage impediment regulated
just for women in order to prevent the complexity
of lineage. As per Art.132/pr1; “if a marriage has
been dissolved, the female side can not get married
before the expiration of three hundred days starting
from the date of termination.”
The period of delay terminates when the womn
gives birth to a child.
2. CERTAIN CONTAGIOUS DIESEASES
Turkish Civil Code does not accept any other
disease than mental illness as an impediment to
marriage. If a person marries even though he/she
suffers from a contagious disease, that marriage wll
not be annuled.
IV. FORM REQUIREMENTS OF MARRIAG
Aside from the said material requirements, form
requirements must also be satisfied. Marriage
contract is the most formal contract one can meet in
all private law territory.
A. FORM REQUIREMENTS BEFORE THE
MARRIAGE CEREMONY
They can submit their applications separately. The
application can be made either in written or in oral
form.
If the applicants appear in person and they wish to
make an oral application, the marriage officer fills
in the mentioned certificate, both parties sign it and
afterwards the officer attests the signatures.
If one of the parties does not know how to read and
write, he/she must press the index finger of his/her
right hand and if there is a seal with his/her name
on it than he/she must press it on the certificate
also.
Deaf or mute or deaf and mute people for the
execution of preparatory procedures, can use their
unique sign language in order to declare their
intents.
Some documents must be added to the application
form such as : (TCC Art.136)
a)The identify card and a certified copy of the
identify card
b)The official health report asserting that the
applicant has no disease
If the engaged couple wishes to marry abroad (even
though they are Turkish citizens), the duty to
execute matrimonial ceremony is assigned.
1. INSPECTION OF THE APPLICATION
AND THE OBJECTION
As per Art.137 of the TCC, the marriage officer
examines if the application has been submitted
properly, if the identities of the couple are
established and if all the marriage prerequisites are
fulfilled.
2. OBJECTION TO THE REJECTION BY
THE MARRIAGE OFFICER
Upon the rejection decision of the marriage
application by the marriage officer, either one of
the applicant persons may apply to court against the
mentioned decision.
3. LICENCE TO MARRY
If the marriage officer finds out that the marriage
requirements are fulfilled or the decision of
rejection is cancelled by the court, upon request
he/she will issue a license to marry.
B. FORM REQUIREMENTS DURING THE
WEDDING CEREMONY
Marriage license entitles the couples to be married
before any marriage officer within six months
commencing the date of issuance.
C. FORM REQUIREMENTS AFTER THE
WEDDING CEREMONY
A family record booklet is provided to the newly
weds by the marriage officer as soon as the
wedding ceremony is over (TTC Art.143/pr1)
The marriages will be registered to the Family
Registry.
V. INVALIDITY OF THE MARRIAGE
The deficiency of one prerequisite will cause
inexistence, whe others will cause absolut enullity,
while others will cause relative nulity.
A. THE INEXISTENCE OF MARRIAGE
In case of the deficiency of the constituent elements
of marriage, we observe the inexistence of marriage
contract. If such conditions happen, the marriage
mentioned has never been born.
The grounds causing inexistence of marriage will
be examined below:
1. MARRIAGE CONCLUDED IN BETWEEN
TWO PEOPLE OF THE SAME SEX
So when two people of the same sexconclude a
marriage contract, the mentioned contract is not
even null and void, it is inexistent.
2. MARRIAGE CEREMONY PERFORMED
NOT BEFORE AN OFFICIAL MARRIAGE
OFFICER
If the intents of the bride and groom are declared
before someone who does not have the required
authority, there will be no marriage in the end. If
the marriage ceremony was performed by a person
who is not an official marriage officer but acts as
one, the marriage will be inexistent.
3. BOTH PARTIES BEING PRESENT
SIMULTANEOUSLY BEFORE THE
MARRIAGE OFFICER
Inexistence of marriage occurs when the bride and
groom do not declare their intents to marry, before
the marriage officer at the same instant.
4. THE AFTERMATH OF THE
INEXISTENCE OF MARRIAGE
The inexistent marriage is invalid since the
moment it is concluded and it never took place on
the legal arena. There is no need to file a suit in
inexistence cases. A marital relationship was never
formed in between the parties, the aprties could
never be qualified as spouses and they were just
ipso facto united and lived together. An inexistent
marriage will never turn into an existing one; it will
never gain validity afterwards.
B. ANNULMENT OF MARRIAGE
If a marriage is inexistent, one of the constituent
elements of the marriage contract is missing. In
case of nullity of a marriage contract, the contract
has been formed, but it will be annulled through a
declaration by the judge. Annulment of the
marriage is the termination of a marriage once
formed but still invalid, through a declaration of the
judge.
1. ABSOLUTE ANNULMENT OF MARRIAGE
A Mmarriage that was formed validly may be
absolutely annulled by the declaration of a judge, if
one of the grounds stated in the Article 145 of the
TCC are present. The annulment of marriage differs
from nullity regulated in the Turkish Code of
Obligations.
a. Present marriage
As per Articel 130 of the TCC :’’A person who
wishes to remarry, is under the obligation to prove
that his/her previous marriage has been legaly
terminated’’. By the above-men-marriage
impediment.
b. Deficiency of capacity to make rational
judgment
As per Art. 145/paragraph 2 of TCC, “In the
following circumstances the marriage will be
absolutely annuled; 2. Being deprived of
discetionary power of one of the spouses for a
permanent ground, at the time of entry into
marrriage.” Which states that, persons who lack
discretionary power can not marry. If such a person
succeeds in getting married to the contrary of this
marriage impediment, than the mentioned marriage
may be annulled depending on the absolute nullity
ground.
c. Presence of the prohibited degrees of kinship
in between the spouses
If such parties with the prohibited kinship got
married anyhow, their marriage will be absolutely
null and void
d. Insanity
Insanity (mental illness) a definite marriage
impediment.
If a person is insane (suffering from mental illness)
and it is a definite marriage impediment and he/she
managed to marry, than this marriage is absolutely
null and void.
2. Relative annulment of marriage

If one of the relative annulment grounds exist, the

marriage will not be invalid by it’s own , a file for
the annulment must be commenced.

a. Absence of the discretionary power for a

temporary reason

According to the Turkish Code of Obligations, if

discretionary power is absent fot a temporary
reason or for a constant reason, the outcome will be
tha same. The contract shll be invalid. However the
situtation is different in Turkish Family Law. There
are two different sanctions regarding the loss of
discretionary power for an eternal period of time.

If the plaintiff who has been temporarily deprived

of his/her discretionary power during marriage
commences the anuulment action but dies late, than
his/her inheritors can carry on with the action as per
Art 159 of the TCC.

As can be seen; the absence of discretionary power

for a permanent reason will leadn to an absolute
annulment of marriage (Art.145/paragraph 2 of the
TCC); while the absence of discretionary power for
a temporary reason will end up in the realtive
annulment of marriage (Art.148 of the TCC)

b. Defects in intent

If there is an involuntary and unintentional

discrepancy in between the inner will and the
declaration of the inner will of a person; a defect
has happened at the intent of that mentioned person.

aa. Mistake