Removal of the Period of Delay Case in Turkey
REMOVAL OF THE PERIOD OF DELAY CASE
In this article, we will examine the process and outcomes of the Removal of the Period of Delay Case.
The period of delay, also known as the waiting period in Turkish Law, is an issue addressed in the Turkish Civil Code. Article 132, paragraph 1 of the Civil Code states: “If the marriage has ended, the woman cannot remarry until three hundred days have passed from the end of the marriage.” Based on this provision, we can define the delay period as the time a woman must wait to remarry after a divorce or the death of her spouse. The purpose of this period for the woman is to ensure that there is no uncertainty regarding the identity and lineage of any child born during this time. This process serves to establish the child’s parentage and clarify who the father is.
The delay obligation imposed on the woman after the end of the marriage is a measure to determine if the woman is pregnant from her previous husband and thus to prevent confusion in lineage.
There are many criticisms of the delay period in the literature. The period of delay is a regulation aimed only at women. Therefore, it is criticized for being contrary to the principle of equality. Many argue that interpreting biological differences between men and women to the detriment of women violates the principle of equality and causes women to lose their rights.
Article 132 of the Civil Code stipulates that this period of delay for women is three hundred days. A divorced or widowed woman cannot remarry until three hundred days have passed. This period starts from the end of the marriage, i.e., from the finalization of the divorce. If the woman proves with a health report that she is not pregnant during this period due to advances in medicine, she will not have to wait three hundred days. A woman who does not want to wait and wishes to remarry must file a case to remove the delay period. In conclusion, the case for the removal of the delay period is a case filed by a woman whose marriage has ended due to divorce or the death of her husband and who wishes to remarry without waiting for three hundred days.
NATURE OF THE REMOVAL OF THE PERIOD OF DELAY CASE
The case for the removal of the delay period is a non-contentious jurisdiction matter. Non-contentious jurisdiction refers to legal transactions brought to court without a dispute between the parties. Documents regulating an agreement or a specific legal situation are submitted to the court without a dispute between the parties, and the court makes a decision based on these documents.
The delay period is only envisaged for women. The period of delay for women is regulated in Article 132 of the Turkish Civil Code: “If the marriage has ended, the woman cannot remarry until three hundred days have passed from the end of the marriage. The period ends with childbirth. If it is understood that the woman is not pregnant from her previous marriage or if the spouses who ended the marriage wish to remarry each other, the court removes this period.”
A woman whose marriage has ended may wish to remarry. In this case, according to Article 132 of the Civil Code, she must wait for three hundred days. However, as stated in the same provision, if it is understood that she is not pregnant or if the spouses who ended the marriage wish to remarry each other, the court removes this period.
End of the Period with Childbirth:
Removal of the Period of Delay Case
The prescribed period for the delay period is three hundred days. If the woman gives birth during this period, the period ends. Article 285 of the Civil Code states: “The father of a child born during the marriage or within three hundred days from the end of the marriage is the husband.” This provision establishes a presumption regarding the father. According to this presumption, the father of the child born during the period of delay is the husband. If the ex-husband presumed to be the father denies paternity, he can file a paternity denial case.
With the woman giving birth, the period of delay ends. In this case, there is no need to request the removal of this period from the court.
Determination That the Woman Is Not Pregnant from Her Previous Marriage:
Removal of the Period of Delay Case
Today, medicine has advanced significantly. Whether a woman is pregnant from her previous marriage is generally determined through medical tests or pregnancy signs. The methods used are medical and scientific methods to determine whether a woman is pregnant from her previous marriage. A health report is required from the woman who files a case for the removal of the delay period. Therefore, if it is scientifically proven that the woman is not pregnant, the court removes the delay period.
Re-marriage of Spouses Whose Marriage Has Ended:
Spouses whose marriage has ended usually do not face a legal obstacle to remarrying each other. Once the marriage has ended, the parties have the right to remarry independently. In Turkey, there is no legal obstacle for spouses to remarry each other after the marriage has ended. Therefore, in cases where spouses whose marriage has ended wish to remarry each other, the court removes the period of delay.
RESULTS OF THE REMOVAL OF THE PERIOD OF DELAY CASE
Removal of the Period of Delay Case
The results of the case for the removal of the delay period may vary depending on the court decision and the circumstances of the case. However, in general, the results of such a case can be:
–The delay period may be removed. If the court decides to remove the delay period, the woman can immediately enter into a new marriage without waiting for the delay period. This decision allows the woman to be legally free and step into a new marriage.
–A rejection decision may be issued. The court may reject the request to remove the delay period. In this case, the woman must wait for the delay period and can only enter into a new marriage after the specified period. The rejection decision may arise in situations where the court evaluates the grounds of the case and its compliance with the law.
PERSONS WHO CAN FILE A CASE FOR THE REMOVAL OF THE PERIOD OF DELAY
The case for the removal of the delay period is a non-contentious jurisdiction matter. Therefore, the relevant person who can file this case may be the woman obligated to wait under the delay period. The relevant person can file the case for the removal of the delay period within the three hundred-day waiting period. There is no statute of limitations or time limit for this case. Since the case for the removal of the delay period is a non-contentious jurisdiction matter and there is no dispute, there is no opposing party.
COMPETENT AND AUTHORIZED COURT FOR THE CASE OF REMOVAL OF THE PERIOD OF DELAY
Removal of the Period of Delay Case
The competent court determines which court in that place should hear a case. According to Article 383 of the Civil Procedure Law, the competent court for non-contentious jurisdiction matters is the Civil Court of Peace. However, even though the case for the removal of the delay period is a non-contentious jurisdiction matter, the competent court for this case is the Family Court according to Article 4 of the Law No. 4787 on the Establishment, Duties, and Procedures of Family Courts. In places where there are no Family Courts, the Civil Courts of First Instance act as Family Courts and
are responsible for hearing such cases.
The authorized court also determines which court in that place should hear a case. The authorized court for the case of the removal of the delay period is the court where the petitioner or one of the interested parties resides. Therefore, the authorized court is the Family Court in the place where the woman requesting the removal of the period of delay resides.
EXAMPLES OF SUPREME COURT DECISIONS REGARDING THE CASE OF REMOVAL OF THE PERIOD OF DELAY
Removal of the Period of Delay Case
“In examining the appeal objections of the defendant’s counsel regarding the conviction decision against the defendant…; it is alleged that the doctor defendant, who wanted to remarry after divorce, committed the crime of forgery of an official document by obtaining a report from the hospital stating that she was not pregnant, although she knew she was pregnant, within the scope of the case for the removal of the period of delay. In the case where the defendant denied the accusation, claiming that she gave blood and obtained the report, it was considered necessary to determine whether the blood group of the blood sample used for the pregnancy test was the same as the defendant’s blood group and whether there was a possibility that the laboratory test mistakenly gave a result indicating that the person was not pregnant while she was pregnant, considering the pregnancy period as of 05.01.2012, in order to establish the truth without any doubt…” (SUPREME COURT 11. CD. 2015/9803 E., 2017/4244 K.)
“In Article 132 of the Turkish Civil Code No. 4721, it is stipulated that “If the marriage has ended, the woman cannot remarry until three hundred days have passed from the end of the marriage. The period ends with childbirth. If it is understood that the woman is not pregnant from her previous marriage or if the spouses who ended the marriage wish to remarry each other, the court removes this period.” From the case file; it is understood that the plaintiff woman divorced by the decision of Ilgın Civil Court of First Instance (in its capacity as Family Court) No. 2019/321, Decision No. 2021/402, the decision became final and was registered in the population registry on 08.09.2021, and the plaintiff woman filed the present case before the three hundred-day period prescribed by law had expired on 28.09.2021. According to the health report dated 01.10.2021 issued for the plaintiff woman and included in the case file, it is clear that the plaintiff woman was pregnant and stated at the hearing on 01.10.2021 that she wanted to marry someone other than her ex-husband, so it is evident that the conditions of Article 132 of the Turkish Civil Code were not met in favor of the plaintiff woman in this specific case. Therefore, the court should have dismissed the case, but the decision to accept the case was found to be contrary to procedure and law.” (SUPREME COURT 2. HD. 2021/8858 E., 2021/8931 K.)
“In Articles 285 and 295 of the Turkish Civil Code No. 4721, it is stated that “the father of a child born during the marriage or within three hundred days from the end of the marriage is the husband, and a child who has a lineage with another man cannot be recognized until this bond is invalidated.” In light of these provisions, it is impossible to register an illegitimate child under the biological father’s name during the marriage union; it is a legal obligation to register the child under the name of the official spouse, and in this way, the elements of the crime do not form. Considering this, it is necessary to obtain and examine the birth record of the child … and determine based on whose statement or notification the birth record was made and whether the child … was born during the marriage union or within three hundred days from the end of the marriage union of the non-appealing defendant … … and the victim … …, and to determine the legal status of the defendant accordingly, but the decision was made with incomplete investigation and examination…” (SUPREME COURT 11. CD. 2021/6422 E., 2022/14368 K.)
“Article 4/1 of the Law No. 4787 on the Establishment, Duties, and Procedures of Family Courts; it is stipulated that all cases arising from the second book of the Turkish Civil Code No. 4721, excluding the third section (Articles 118-395, Law No. 5133, Articles 2-3), will be heard in the Family Court, and provisional Article 1 states that pending cases will be transferred to the competent and authorized Family Court. With the annulment of the decision, the case has become pending. In this context, it is obligatory to consider the jurisdiction of the court in the matter.” (SUPREME COURT 2. HD. 2007/1646 E., 2007/1052 K.)
For more help or advice on this matter, you can contact us.
Removal of the Period of Delay Case in Turkish Law
“`
