Family Law

17.10.2023
Öğr. Gör. Begüm Yiğit
 In General

Turkish Constitution refers to the family as the basic institution of

Turkish society.

(Cons. Art 41)-> "The family is the foundation of Turkish society

and is based upon principle of equality between spouses" and "The
State shall take the measures and establish the necessary
organization (...) to safeguard the peace and well-being of the
family".
 In General

Accordingly, the Civil Code contains provisions regulating the family

as an institution.

This Code primarily deals with a small family consisting of husband,

wife and children.
 Engagement
First step towards the marriage

Indicates that two persons of opposite sexes have promised to marry

Qualified as an independent contract, subject to specialities of family

law

CC does not impose any formal requirement and is satisfied by an

exchange of promises between man and woman. The expression of
willingness to engage is usually made orally and symbolized by the
exchange of rings.
 Breach of Engagement

Engagement does not constitute an enforceable contract. It does not compel any
of the parties to marry, and it does not prevent a marriage with someone else.
Consequences of Breach:
1. Reciprocal return of the gifts given by the fiancées, their parents or those
acting similar to the parents;
2. Material and/or immaterial damages may be recovered against a party that
breaks the engagement without reasonable cause.
 Marriage

Considered legally as a contract.

Turkish law requires the marriage to be made between persons of

different sexes.

Due to the principle of laicity, only civil marriages performed by

authorized marriage officers are allowed in Turkey.
 Conditions for a Valid Marriage

A. Capacity to get married-> Sufficient mental capacity to make fair

judgments (Minimum age requirement, mental illness etc.)

B. Absence of consanguinity-> Marriage between close relatives is

prohibited.

C. Absence of already existing marriage-> A second marriage cannot be

entered into unless the first is terminated.
 Conditions for a Valid Marriage

D. Absence of adoptive relationship-> An adopting parent is not allowed to

marry his or her adopted child.

E. Respect of waiting period-> Women whose marriage has been dissolved

(divorce, death etc.) cannot marry before the expiration of 300 days from the
date of dissolution.

F. Absence of certain sicknesses-> Sicknesses enumerated in the Law of

General Hygiene constitute a bar to marriage.
 Marital Life

Following the celebration of civil marriage, the spouses enter into the
marital life where they are bound with "family law duties" towards
each other.

Fidelity, support etc.

During the last decades, two current trends appeared in Turkish family
law.
 Marital Life

1. Equality -> The family is now based on equality between the husband
and wife in the family. The husband is no more "head of the family".
• Woman and man are treated almost in all cases equal and have the
right and duty to govern the family together (CC Art 186).
 Marital Life

2. Protection of weaker party-> The lawmaker's increasing intervention to

protect the weaker party in the couple against abusive behaviors of the
other spouse.

E.g. The concept of "family house" was introduced. It is forbidden for the
spouses to alienate the ownership of the family house, to restrict the
rights on it, and to terminate the rental contract without the explicit
consent of the other spouse (CC Art 194/1).
 Matrimonial Property Systems

The CC regulates 4 systems of matrimonial regimes and gives couples

the entitlement to choose one of them.

They are not allowed to create a new regime or to amend the content of
the regime they have chosen.

If they do not agree on a specific system, the statutory regime of

participation on the acquired property will be applied.
 Participation on the Acquired
Property
Under this system, there are 2 types of properties:
1. Acquired property-> properties which are acquired by a party with his or her
effort during the marriage.
2. Personal properties-> properties which belonged to the party at the time of the
marriage and those which are acquired during the marriage by succession.
In the case of divorce, each party keeps his/her personal properties and entitled
to half of the value of the other party's acquired property.
 Divorce

Family Courts may grant a divorce in case a legal ground for divorce
can be found.

Grounds for divorce are categorized as "general grounds" and "specific

grounds".
 General Grounds for Divorce

A. Matrimonial breakdown/Incompatibility-> If there is a serious

breakdown of family life that the continuation of common life may
not be expected, either spouse may sue for a divorce.

E.g. Continuous disagreement among the parties, the lack of trust have
been found as causes of incompatibility in court practice.
 General Grounds for Divorce

B. Divorce by mutual consent-> In this case, the parties come to an

agreement on the financial consequences of the divorce and on the
situation of the children.

Such an option is available only in case the marriage has lasted at least
one year!
 General Grounds for Divorce

C. If a request for divorce is rejected by a court and if within three years

following this decision common life could not be established, each of the
parties can initiate a second lawsuit and the court is then bound to grant
the divorce decision.
 Specific Grounds for Divorce

A. Adultery-> voluntary sexual intercourse by a married person with

someone other than one's husband/wife.

B. Violence-> Threat or attempts to murder or bodily harm the other.

C. Humiliating crime and dishonorable life-> fraud, theft, gambling or

prostitution?

The other party can file a lawsuit on the condition that he/she cannot be
expected to continue the common life.
 Specific Grounds for Divorce

D. Desertion-> If one of the parties leaves the home to avoid the duties of
the marriage and does not return or offer justification for this absence.

E. Mental illness-> It may also appear after the marriage. Such illness
should make normal married life unbearable for the other party (CC Art
165).
 Legal Consequences of Divorce

Personal and financial consequences

The parties will have their own separate independent domiciles.

Upon divorce, the parental authority over the children may be given to
one of the parties.
 Financial Consequences

1. A party may demand material or immaterial damages from the other party
if it has been found that the latter is primarily responsible for the divorce.

2. "Allowance of participation"-> The party who loses parental authority, has

to contribute to the expense of raising the children.

3. "Post-divorce alimony"-> If one party is under the risk of falling in poverty

due to the divorce and is not more at fault than the other party for the
termination of the marriage.