Permission to Marry Case in Turkish Law

PERMISSION TO MARRY CASE

A permission to marry case is a frequently encountered process in practice. Marriage is an important institution that forms one of the fundamental building blocks of society. In Turkish law, the basic legal regulations regarding marriage and family law are found in the Turkish Civil Code. This law details the process from the establishment of the marital union to its termination. Marriage is a significant step where individuals form a legal union with the aim of living together and building a family. The Turkish Civil Code clearly defines the rights and responsibilities of the parties in marriage, the conditions for establishing the marital union, the reasons for its termination, and the legal procedures involved in these processes.

Marriage is a legal transaction carried out to enable two individuals, one male and one female, to form a marital union. For individuals to marry, they must meet certain conditions required by law. The Turkish Civil Code stipulates certain material and formal conditions for the marriage contract. One of the material conditions for marriage is that the person wishing to marry must have the legal capacity to marry. The age of marriage is also a crucial element in determining whether a person has the legal capacity to marry.

The conditions for marriage are regulated in Article 124 of the Turkish Civil Code: “Men or women cannot marry unless they have completed the age of seventeen.” As understood from the implication of the provision, only men or women who have completed the age of seventeen can marry. The continuation of the article states: “However, the judge can permit the marriage of a man or woman who has completed the age of sixteen in exceptional circumstances and for a very important reason. As far as possible, the parents or guardian are heard before the decision.” According to the regulation in Article 124 of the Turkish Civil Code, there are ordinary and extraordinary age conditions for marriage. The ordinary marriage age is seventeen and above. A person who has completed the age of seventeen but not yet eighteen requires the consent of their guardian or, if not available, their custodian to marry. In the presence of an extraordinary circumstance, individuals who have not completed the age of seventeen can also marry. An extraordinary marriage can occur with the judge’s permission. The permission to marry case is filed to obtain these permissions.

NATURE OF THE PERMISSION TO MARRY CASE

The permission to marry case can be examined under two separate headings: the ordinary permission to marry case and the extraordinary permission to marry case:

Permission to Marry Case in Ordinary Marriage

In ordinary marriage, the permission to marry case is filed if the guardian or custodian does not grant this permission for an individual who has completed the age of seventeen but not yet eighteen. The person who wants to marry can apply to the court and file a permission to marry case. Also, for a person who has completed the age of eighteen but is restricted, the consent of their guardian or custodian is required to marry. Therefore, if the guardian or custodian does not give permission, the person can file a permission to marry case.

The court hears the guardian or custodian who does not permit the marriage. If these individuals are unjustly not granting permission for marriage, the judge will grant permission after the hearing. Indeed, it is necessary to hear the party who does not grant permission. In the case filed by the legal representative, the minor who can distinguish right from wrong will also be heard, and the judge will observe whether the minor has the necessary maturity, physically and mentally, for marriage.

Permission to Marry Case in Extraordinary Marriage

Extraordinary marriage is regulated in the second paragraph of Article 124 of the Turkish Civil Code: “However, the judge can permit the marriage of a man or woman who has completed the age of sixteen in exceptional circumstances and for a very important reason. As far as possible, the parents or guardian are heard before the decision.”

Extraordinary marriage applies to individuals who have completed the age of sixteen but not yet seventeen. For these individuals to marry, there must be an extraordinary situation. Therefore, in such cases, individuals can request permission to marry from the court.

In extraordinary marriage, as in ordinary marriage, the legal representative of the minor is heard. In addition to the hearing, there must be an extraordinary situation for marriage. These extraordinary situations are not specified in the law by the legislator. The judge has discretion in determining extraordinary situations.

In light of the Supreme Court decisions, extraordinary marriage situations may include cases where the person wishing to marry is pregnant, or the person is orphaned or impoverished.

CONSEQUENCES OF THE PERMISSION TO MARRY CASE

– The court may accept the request for permission to marry: The court may accept the request of individuals who apply for permission to marry and grant them permission to marry.

– The court may reject the request for permission to marry: The court may also reject the request for permission to marry if the extraordinary situations are not sufficiently clear or the legal requirements are not met. The decision of rejection by the court can be appealed.

Both decisions are made at the discretion of the judge.

PERSONS WHO CAN FILE A PERMISSION TO MARRY CASE

A permission to marry case is a non-contentious jurisdiction. Therefore, the person who can file this case is the person who wants to marry but is sixteen or seventeen years old and has not yet reached the age of eighteen, or a person who has reached the age of eighteen but is restricted. According to the above-mentioned article, the minor who can distinguish right from wrong or their legal representatives can also file the case.

Since the extraordinary permission to marry case is seen without opposition, there is no defendant party. However, in ordinary marriage, the permission to marry case is filed against the guardian or, if not available, the custodian.

No maximum period is stipulated in the law for this case.

COMPETENT COURT IN THE PERMISSION TO MARRY CASE

The competent court in the permission to marry case determines which of the courts in that place should handle the case. According to Article 383 of the Code of Civil Procedure, the competent court in non-contentious jurisdiction cases is the Civil Court of Peace. However, although the permission to marry case is a non-contentious jurisdiction case, the competent court for this case, according to Article 4 of the Law No. 4787 on the Establishment, Duties, and Judicial Procedures of Family Courts, is the Family Courts. In places where there are no Family Courts, the Civil Courts of First Instance handle the case in the capacity of a Family Court.

JURISDICTIONAL COURT IN THE PERMISSION TO MARRY CASE

The jurisdictional court in the permission to marry case determines which court in which place should handle the case. For the permission to marry case, the jurisdictional court is the court of the place of residence of the person requesting permission. Therefore, the Family Court in the place where the person requesting permission to marry resides is the jurisdictional court.

EXAMPLES OF SUPREME COURT DECISIONS REGARDING THE PERMISSION TO MARRY CASE

“Article 124/2 of the Turkish Civil Code No. 4721 introduces the provision that “However, the judge can permit the marriage of a man or woman who has completed the age of sixteen in exceptional circumstances and for a very important reason. As far as possible, the parents or guardian are heard before the decision.” It is understood that H…. P….., born on 01.09.1991, whose permission to marry is requested, has not completed the age of sixteen at the time of the lawsuit. The court should have rejected the case due to the lack of legal conditions, but the court’s decision to grant permission to marry contrary to Article 124/2 of the Turkish Civil Code is against the procedure and the law.” (Supreme Court 2nd Civil Chamber, 2008/8644 E., 2009/4204 K.)

“According to Articles 124/1 and 126 of the Turkish Civil Code No. 4721, a minor who has completed the age of seventeen can marry with the permission of their legal representative without the need for a court decision. In cases specified in Articles 124/2 and 128 of the Civil Code, the minor can only marry with a court decision. According to the case file, it is understood that L. G., born on 20.07.1986, had completed the age of seventeen at the time of the lawsuit, and also her parents permitted her marriage. The court should have rejected the case as her parents’ permission was sufficient for her marriage and a court decision was not necessary.” (Supreme Court 2nd Civil Chamber, 2006/6903 E., 2006/14566 K.)

“Çiğdem, for whom permission to marry is requested, was born on 3.4.1987 and is under guardianship. She is cared for by relatives and does not have a regular family life. This situation is an important reason as per Article 124/2 of the Turkish Civil Code. The plaintiff, by marrying soon, will be freed from dependence on others’ help. Since the conditions for marriage are met in this way, the case should be accepted, but the rejection of the case and the judgment in the written form were found incorrect.” (Supreme Court 2nd Civil Chamber, 2003/7198 E., 2003/8271 K.)

 

 

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