Declaration of Absence in Turkish Law

WHAT IS A DECLARATION OF ABSENCE?

A declaration of absence is the termination of a person’s legal personality by court decision if they have disappeared in peril of death or have not been heard from for a long time, and their death is highly probable. As a rule, to declare someone dead, their lifeless body must be found. However, there are some situations where the person’s lifeless body cannot be found, nor are there any indications that they are alive.

Therefore, the Turkish Civil Code regulates the institution of the declaration of absence. The declaration of absence is regulated in Article 32 of the Turkish Civil Code. According to the provision of the said article: “If a person has disappeared in peril of death or has not been heard from for a long time, and there is a strong possibility of their death, the court may declare this person absent upon the application of those whose rights depend on this death.” Article 32 of the Turkish Civil Code sets the conditions for obtaining a declaration of absence. Accordingly, to obtain a declaration of absence:

• The person for whom the declaration of absence is to be made must have disappeared in peril of death or have not been heard from for a long time, and there must be a strong possibility of their death.
• The legal waiting periods must have passed.
• An application must be made by those whose rights depend on this death.

PERSONS WHO CAN REQUEST A DECLARATION OF ABSENCE

In the Turkish Civil Code, those authorized to file a declaration of absence lawsuit are regulated as “those whose rights depend on this death.” These persons include:

• The spouse of the person for whom the declaration of absence is requested
• The legal or appointed heirs of the person for whom the declaration of absence is requested
• Creditors of a specific legacy
• A person with a limited real right such as usufruct or residence over the property of the absent person
• The executor of the will

Additionally, according to Article 588 of the Turkish Civil Code, the Treasury can request a declaration of absence under certain conditions. This provision is regulated as follows: “If the property or the share of the inheritance of a person whose existence is unknown is managed officially for ten years or if the property of such a person who is managed in this way reaches the age of one hundred, the court shall declare this person absent upon the request of the Treasury.”

LEGAL WAITING PERIODS IN CASE OF ABSENCE

The waiting periods vary depending on the event that causes the person to be considered absent. Accordingly:

• In the case of disappearance in peril of death, at least one year must have passed since the peril of death.
• In the case of not being heard from for a long time, at least five years must have passed since the last news.

The court summons persons who have information about the person to be declared absent to provide information within a specified period through a duly made announcement. This period is at least six months from the date of the first announcement.

HOW TO REQUEST A DECLARATION OF ABSENCE?

A request for a declaration of absence must be made through a lawsuit and submitted to the court. Those whose rights depend on this death can file a lawsuit for a declaration of absence, paying attention to the legal waiting periods.

COMPETENT AND AUTHORIZED COURT FOR DECLARATION OF ABSENCE

A declaration of absence is a matter of non-contentious jurisdiction. If there is no specific regulation for non-contentious jurisdiction, the competent court is the peace court. The competent court for granting a declaration of absence is also the peace court. The authorized court for granting a declaration of absence is regulated in the second paragraph of Article 32 of the Turkish Civil Code. According to the provision of the article: “The authorized court is the court of the person’s last place of residence in Turkey; if they have never resided in Turkey, the court of the place where they are registered in the civil registry; if there is no such record, the court of the place where their mother or father is registered.”

According to these regulations, it is seen that the court where the declaration of absence lawsuit will be filed is the peace court of the person’s last place of residence in Turkey.

REGISTRY PROCEDURES AFTER A DECLARATION OF ABSENCE

The changes to be made in the registry after a declaration of absence are regulated in the Turkish Civil Code as follows: “The declaration of absence is recorded in the death registry upon the notification of the judge.” According to the provision, a judge’s decision is required for the person to be recorded in the death registry.

TERMINATION OF THE DECLARATION OF ABSENCE

There are two cases that terminate the declaration of absence. The first is the reappearance of the person, and the second is the determination of their death. If the person for whom a declaration of absence will be made reappears before the end of the announcement period or if their death is determined, the request for a declaration of absence falls.

RESULTS OF THE DECLARATION OF ABSENCE

The consequences of granting a declaration of absence are regulated in Article 35 of the Turkish Civil Code. According to the provision: “If the announcement does not yield results, the court shall declare the person absent, and the rights dependent on death are exercised as if the absence of the person is proven. The declaration of absence takes effect from the date of the peril of death or the date of the last news.” According to the law, a person for whom a declaration of absence is granted is considered legally dead. The same article also regulates when the declaration of absence takes effect. Accordingly, the declaration of absence takes effect not from the date of the decision but from the date of the last news or the event involving the peril of death.

The declaration of absence has significant consequences. One of these is whether the marriage continues if the person for whom a declaration of absence is granted is married. Article 131 of the Turkish Civil Code regulates this issue as follows: “The spouse of a person declared absent cannot remarry unless the court annuls the marriage.” As can be understood from the provision, the declaration of absence does not automatically terminate the marriage. The spouse of the person for whom a declaration of absence is granted must also request the annulment of the marriage from the competent court. If the marriage is not annulled and the spouse remarries, the second marriage is absolutely null and void. This nullity arises from the prohibition of polygamy in Turkish law. The spouse of the absent person can request the annulment of the marriage in the absence lawsuit or in a separate lawsuit. Another area where the declaration of absence has significant consequences is inheritance law. Since the person for whom a declaration of absence is granted is considered legally dead, their inheritance passes to their heirs. According to Articles 586 and 427 of the Turkish Civil Code, if a declaration of absence has not yet been granted, but a dangerous event has occurred or the person has not been heard from, the person’s property is managed by a trustee until a declaration of absence is granted, and if the person inherits from others, this share is managed by the court. With the granting of the declaration of absence, the property of the person for whom a declaration of absence is granted passes to their heirs against security. Looking at Article 584 of our Civil Code, we see that the lawmaker has clearly regulated the reason for requesting this security. According to the provision, heirs must provide this security to return these properties to future superior right holders or the absent person. The continuation of the article also foresees the duration of the security. Accordingly, the security is provided for five years in the case of disappearance in peril of death, fifteen years in the case of not being heard from for a long time, and, in any case, for the period until the absent person reaches the age of one hundred. The events we will accept as the starting point for calculating these periods are the delivery of the estate assets in the case of disappearance in peril of death, and the last news date in the case of not being heard from for a long time. If these periods expire or the absent person reaches the age of one hundred, the estate fully belongs to the heirs. However, even in this case, if the absent person returns or superior right holders appear, the heirs are obliged to return the estate.

EXAMPLES OF COURT OF CASSATION DECISIONS REGARDING DECLARATION OF ABSENCE

“…In the case in question, although the court decided on the absence of the shareholders of the immovable property with parcel number 836, plot number 10, …, …, … and …, it was not determined whether the persons for whom the declaration of absence was made were dead or alive by detailed research from their population records, and the date of the last news from these persons was not determined. Therefore, it was not deemed correct to accept the lawsuit with insufficient investigation and research, causing doubts in enforcement, without determining the clear identity information and the date of the last news from …, …, …, and …, and showing this date clearly in the decision…” 18th Civil Chamber, 2015/10885 E., 2016/6792 K.

“…A decision of lack of jurisdiction was given on the grounds that the last address of the person for whom the declaration of absence was requested was … Sahinbey/Gaziantep according to the address registration system. A decision of lack of jurisdiction was given on the grounds that the last place of residence address of the person for whom the declaration of absence was requested was reported to be … Yüreğir/Adana by the Gevaş District Gendarmerie Command. The dispute is related to the request for a declaration of absence under Article 32 of the Turkish Civil Code No. 4721 (Law No. 4721). The legal basis for resolving jurisdictional disputes between first-instance courts and regional courts of justice within different regional courts of justice is the regulations in Articles 21 and 22 of the Civil Procedure Code No. 6100 (Law No. 6100) and Article 36, paragraph 3, of the Law No. 5235 on the Establishment, Duties, and Jurisdiction of First Instance Courts and Regional Courts of Justice. Article 32 of Law No. 4721, titled “Declaration of absence,” is as follows: “If a person has disappeared in peril of death or has not been heard from for a long time, and there is a strong possibility of their death, the court may declare this person absent upon the application of those whose rights depend on this death. The authorized court is the court of the person’s last place of residence in Turkey; if they have never resided in Turkey, the court of the place where they are registered in the civil registry; if there is no such record, the court of the place where their mother or father is registered.” Article 19, paragraph 1, of Law No. 4721, titled “Residence,” is as follows: “The residence is the place where a person lives with the intention of staying permanently.”

”From the file content, it is understood that the last address of the person for whom the declaration of absence was requested before their disappearance in 2012 was in Adana province, Yüreğir district. In this case, the dispute must be resolved and concluded in the Adana 4th Civil Court of Peace. For the reasons explained; it was unanimously and definitively decided on 20.03.2023 to determine the Adana 4th Civil Court of Peace as the jurisdictional court in accordance with Articles 21 and 22 of Law No. 6100 and Article 36, paragraph 3, of Law No. 5235.” 5th Civil Chamber, 2023/640 E., 2023/2685 K.

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