Mehr Claim in Divorce Cases under Turkish Law

MEHIR CLAIM LAWSUIT

Before starting our article on mehr claims, it should be noted that mehr was regulated during the periods of Sharia law and Ottoman Law and is not included in today’s laws. However, mehr documents are still made in our society, and disputes arising from mehr claims are brought to the judiciary. Mehr documents mostly come up during “religious marriage” ceremonies. Since mehr documents are not regulated in our laws, disputes are resolved by utilizing the provisions of Articles 285-298 of the Turkish Code of Obligations. In other words, the provisions of donation agreements are applied to disputes related to mehr documents. In this regard, the Court of Cassation considers the mehr document as a type of donation agreement. For detailed information about the mehr document, you can consult with us.

WHAT IS MEHR?

Mehr is an important family law issue in Islamic law. Under the name of mehr, during or after the religious marriage ceremony known as imam nikah among the public, the male spouse commits to give certain things to the female spouse. The things committed under the name of mehr are items or money, gold, jewelry, etc., that have economic value. In this context, mehr is a gift of money or goods from the male spouse to the female spouse at the time of marriage, during the marriage, or in case of divorce. As a rule, mehr claims are accepted in Islamic law not as a condition of marriage but as a result of marriage. Mehr is usually different from the event known as dowry, which is a condition of marriage and commonly known among the public. As a rule, mehr is given to the female spouse. Giving mehr directly to the female spouse and not to her family does not constitute a violation of law, morality, and personal rights. In practice, the mehr debt can also be paid with the jewelry given to the woman at the wedding.

The mehr given to the woman in cash during the marriage contract is called mihr-i muaccel. The payment of mehr can also be postponed to after the marriage. This is called mihr-i müeccel. The deferred mehr claim cannot be demanded before its due date. If the due date is not specified, the mehr can be claimed at the latest in case of the male spouse’s death or divorce, becoming due.

MEHR CLAIMS IN TURKISH LAW

There is no regulation regarding mehr documents or mehr claims in our Turkish Civil Code. The legislator has not regulated or secured mehr documents. However, as a tradition of Islamic law, mehr continues to be demanded. In practice, disputes arising from mehr documents are frequently encountered. Generally, female spouses resort to the judiciary claiming that the promised mehr has not been paid. The only regulation in Turkish positive law regarding mehr is the Unification of Judgments Decision of the Court of Cassation dated 2.12.1959, numbered E. 14, K. 30. Judicial authorities resolve disputes related to mehr in light of this regulation.

HOW SHOULD A MEHR DOCUMENT BE PREPARED?

The Court of Cassation has rejected many mehr claims due to proof issues. Preparing your mehr document in a way that leaves no room for doubt will be healthier for you. In this context, the points to pay attention to when preparing a mehr document are:

1- The items and amounts given as mehr should be written in the document.

2- The document should be prepared in writing and especially bear the signature of the male spouse.

3- The written document should also bear the signatures of 2 witnesses and 1 guarantor.

For the document to have the nature of an official document, it should be notarized.

VALIDITY CONDITIONS OF THE MEHR DOCUMENT

For the mehr document to have legal consequences, it must be valid. While mehr in Islamic law is not subject to any conditions, it is subject to some conditions in today’s law.

Mehr document;

– If movable property or money is given as mehr: the document must be prepared in writing.

– If immovable property or real rights on immovable property are given as mehr: the document must be prepared officially. This transaction must be done at the land registry.

The formal execution of mehr in writing/official form will ensure proof. If it is not prepared in written or official form, your case will be rejected due to non-compliance with the form.

WHAT IS A MEHR CLAIM LAWSUIT?

Preparing a mehr document does not grant you a claim right. For you to have a claim right due to the mehr document, the document must terminate. The document can terminate in 2 ways;

1- Termination of the document through divorce

2- Termination of the document due to death

The female spouse can demand the mehr claim through a lawsuit when the divorce occurs. If the female spouse is not given the promised items, she can file a mehr claim lawsuit. The mehr lawsuit can be filed together with the divorce lawsuit.

In practice, male spouses also sometimes file mehr lawsuits and request to annul the mehr document. We will touch on this below.

WHERE TO FILE A MEHR CLAIM LAWSUIT?

Since the mehr claim is a claim related to family law, Family Courts are responsible. However, since the claims related to the mehr document are only about property, they should be filed in the civil courts of the defendant’s domicile. If you do not file your lawsuit in the competent and authorized court, you may lose time.

STATUTE OF LIMITATIONS FOR MEHR CLAIM LAWSUIT

Claims arising from the mehr document are subject to the statute of limitations. As a rule, you must file the mehr document lawsuit within 10 years from the finalization of your divorce decision. By filing this lawsuit, you will have demanded the fulfillment of the things promised to you in the mehr document.

RETURN OF MEHR

The return of mehr is possible. Whether the mehr has been fulfilled or not is important here. If the mehr has been fulfilled, it can be reclaimed under the provisions of the return of donations, while if the mehr has not been fulfilled, it can be reclaimed under the provisions of the return of the promise of donation.

Conditions for the return of mehr;

1- The mehr creditor commits a serious crime against the mehr giver or one of his relatives

2- The mehr creditor significantly violates his legal obligations towards the mehr giver or one of his relatives

3- If the mehr is given conditionally, the mehr creditor does not fulfill this condition without a justifiable reason

4- The financial situation of the mehr giver changes extraordinarily

5- New family obligations of the mehr giver arise or his obligations increase significantly

6- The mehr giver falls into financial difficulty or goes bankrupt

In these cases, the mehr can be reclaimed within 1 year from the knowledge of the situation.

For more detailed information about the mehr document and mehr claim lawsuit, you can contact us here.

EXCERPTS FROM DECISIONS ON MEHR DOCUMENT AND MEHR CLAIM LAWSUIT

“The plaintiff-counter-defendant woman demanded the return of 101 pieces of republic gold in kind or the price due to the mehr document prepared at the time of marriage, together with the divorce lawsuit. The defendant-counter-plaintiff man claimed that there was no mehr document prepared between the parties at the time of marriage. Although it was claimed that the mehr items in question were documented between the parties, the document presented as evidence was not signed. Therefore, the woman must prove that the man must fulfill the obligations stated in the document and that she has a jewelry claim tied to the document. The abstract witness statements of the woman regarding the preparation of the mehr document at the time of marriage were not considered sufficient on their own to prove the claim, and the mehr claim lawsuit was rejected.”

2. Civil Chamber         2020/4902 E.,  2020/5437 K.

“The plaintiff relied on the mehr document dated 23.8.2002. The mehr document is a kind of dowry document, especially common in Anatolia, showing the existence of a debt-creating obligation. The dowry document dated 23.8.2002 clearly states that ‘…in case of any separation, 250 grams of gold will be paid by the groom … to the bride …’, and the document was signed by … and two witnesses. This document, prepared conditionally on divorce, is a debt-creating document. The defendant does not object to the signature under the document. It is evident from the population record in the file that the parties divorced on 1.2.2011 with a finalized decision. Thus, the condition (divorce) written in the document has been fulfilled. The debt has become due. It is not possible to accept that the bracelets accepted to be given to the plaintiff woman during marriage or within the marriage as written in the mehr document correspond to the gold (mehr) stated in the document. Since the gold to be given in case of divorce (mehr) is specified in the mehr document, it is not correct to accept that the jewelry (gifts) given to the plaintiff woman during or within the marriage were given in return for this gold. The court should have accepted the claim instead of rejecting it with the written justification, thus the judgment must be overturned.”

6. 6. Civil Chamber         2012/14385 E.,  2013/7833 K.

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