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Author Topic: Highlights of the new Turkish civil code  (Read 7758 times)

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Highlights of the new Turkish civil code
« on: May 19, 2007, 09:07:55 PM »
With Regard to the Copenhagen Political Criteria - A contribution by Nazan Moroglu, TR
I. Amendments on gender equality
II. Amendments to enhance the right to freedom of association and peaceful assembly
III. Amendments for the protection of the weak
IV. Amendments for the protection of the rights of the child


I. Amendments on gender equality

To “enact the Draft Turkish Civil Code embodying improvements in gender equality” was one of the short term commitments in the Political Criteria Section 2.1.11 (Full Enjoyment by All Individuals without Any Discrimination and Irrespective of Their Language, Race, Colour, Sex, Political Opinion, Philosophical Belief or Religion of All Human Rights and Fundamental Freedoms; Freedom of Thought, Conscience and Religion) of the NPAA. The provisions of the new Turkish Civil Code, which ensure gender equality, are highlighted in the following articles.

Article 32 (Former Article 31)

A new provision has been introduced regarding the identification of the court competent to take a decision of absence. The provision in former Article 31, which reads as “if the absent person has never resided in Turkey, then the place of registration of birth, or if no such registration exists, the registration of the father”, has been replaced with “the court in the area where the mother or the father is registered.”

Article 124 (Former Article 88)

The provision on the legal age of marriage, which was 17
for men and 15 for women, has been replaced with 17 years of age for both men and women.

The minimum legal age for marriage, as may be decided by the judge, used to be 15 for men and 14 for women. This has been changed to 16 years of age for both men and women.

Therefore, the discrepancy in the legal age of marriage between men and women has been remedied.

Article 134 (Former Article 97)

The provision that the application for marriage is to be filed at the place of residence of the husband has been replaced with the provision that the application of marriage is to be filed at the place of residence of either the husband or the wife.

Article 173 (Former Article 141)

A new provision has been introduced which provides that, upon divorce, the married woman-if she had been divorced or widowed prior to the marriage- may request from the judge to be allowed to use her maiden name.

Article 175 (Former Article 144)

The provision in the second sentence of the first paragraph, which reads as “However, for the husband to apply for alimony from the wife, the wife must have adequate financial means” has been removed.

Article 186 (Former Article 152)

A new clause has been added, which reads as “the spouses will choose the house together”.

The provision in former Article 152, which reads as “the husband is the head of the household” has been replaced with “the spouses shall manage the household together.”

The provision in former Article 152, which provides that the expenses of the marriage are to be met by the husband, has been replaced with the new provision, which reads as “spouses shall contribute in labour and in property to the expenses of the marriage to the extent they are able to do so.”

Article 188 (Former Articles 154 and 155)

A new provision has been introduced, which reads as “Both spouses may legally represent the marriage with respect to the expenses of the marital union for the duration of the marriage” and the provision in former Article 154, which reads as “the marriage is represented by the husband” has been removed.

Article 189 (Former Articles 187, 202-204, 215-217)

A new provision which provides that spouses shall have joint and several liability with respect to third persons when undertaking legal transactions in representing the marital union has been added to replace the provision where the husband was solely liable for these obligations.

Article 192

A new provision has been introduced which provides that neither of the spouses needs the agreement of the other when choosing a profession or trade.

With the introduction of this provision, the relevant legislation is aligned with the decision taken by the Constitutional Court in 1990.

Article 193

With this amendment, the regime pertaining to the representation of the marital union in former Article 154 and the following articles has been changed.

Article 193 introduces the provision that “Either one of the spouses may undertake legal transactions with their spouses or with third persons unless otherwise is provided for in the law”.

The provision in former Article 155, which allowed for the representation of the wife by her husband in legal transactions with third persons, is no longer in force. According to the amendment in Article 193, either one of the spouses may undertake legal transactions with the other spouse or with third persons.

Article 198 (Former Article 163)

The provision in former Article 163 on the obligation of debtors to pay their debts to the wife has been replaced in the new Article 198 with the provision that the judge may decide to take the decision for debtors to pay their debts to the spouse where the other spouse is negligent in meeting the expenditures of the marital union.

Article 202 and the following articles (Former Article 170)

These provisions replace the “separation of property” regime referred to in former Article 170 with the phrase “share in properties obtained”. These provisions aim to remedy inequalities between spouses created by “the separation of property” regime in case of divorce. These provisions have been introduced to remedy injustices that may result from the enforcement of the former “separation of property” regime, which tended to be in favour of the husband.

Article 268

This amendment introduces the provision that “spouses are equally liable for debts related to the marriage.”

Article 336

With this amendment, the provision that “the vote of the father is to be decisive” when exercising the rights of guardianship (for children) stipulated in Article 263 of the former Code has been deleted from the text of this article and both the mother and the father have been accorded equal rights in this matter.

Article 416 (Former Article 366)

With this amendment, not only men but also women are obliged to assume the responsibility of guardianship when appointed as a guardian.

Article 661 (Former Article 598)

With the amendment, the provision which provides that “in case none of the sons wish to manage the inherited business, the daughters with legal capacity may manage the inherited business” has been eliminated. Thus, the provision that was in favour of the sons in terms of the legal capacity to manage the inherited business is no longer in force.


II. Amendments to enhance the right to freedom of association and peaceful assembly

To “review the legislation on the freedom of association and holding meetings and demonstration marches” is one of the medium term commitments contained in the Political Criteria Section 2.1.2. (Freedom of Association and Peaceful Assembly and the Civil Society) of the NPAA. The relevant provisions on the enhancement of the right to the freedom of association and peaceful assembly are highlighted in the following articles.

Article 57

A new provision has been introduced by Article 57 which reads as “Anyone may establish an association without prior permission. Persons establishing associations must have the legal capacity to act.” This provision is in alignment with Article 33 of the Constitution.

Article 63 (Former Article 63)

With the amendment to this article, the provision that “no one can be forced to become a member of an association and no association is obliged to accept a member” has replaced the former provision which reads as “the association may always accept new members. A member has the right to resign from membership with a prior notification of six months.” This amendment is in alignment with Article 33 of the Constitution.

Article 67 (Former Article 65)

With this amendment, a new provision has been added which provided that objections may be raised for cases of expulsion from membership that have not been referred to in the regulation.

Article 68

With the amendment, new provisions have been introduced on associations. According to these provisions, all members have equal rights. The association may not discriminate among its members on the basis of language, race, colour, gender, religion and sect, family, group and class; practices that undermine equality or discriminate in favour of certain members for these reasons are not allowed. Every member has the right to participate in the activities and the administration of the association. This amendment is in alignment with the principle of equality stipulated in Article 10 of the Constitution. Discrimination between members of the association has thus been prohibited.

Article 79

Articles 72-86 introduce new provisions with respect to the administrative bodies of associations. With the general assembly. However, the absence of the government observer shall not hinder the convening of the meeting” has been added to this article. This provision constitutes a more liberal approach to associations.

Article 90

A new provision has been added on intermediate sanctions that may be imposed on an association, which undertakes activities outside its aims. The Chief Public Prosecutor may decide on the suspension of the activities of the association. Short of the dissolution of the association, intermediate sanctions may be imposed in cases where the association undertakes activities outside of its aims. This provision makes the dissolution of an association more difficult.

Article 91

Articles 90 and 93 introduce a number of provisions, which regulate the activities undertaken by associations. With the amendment, associations may undertake international activities to realize the aims contained in their regulations and may establish branch offices abroad. When cooperation at the international level is deemed to be beneficial, associations established in Turkey may become members in associations and organizations established abroad, in accordance with their aims, with the permission of the Council of Ministers.

Article 92

With this amendment, in cases where cooperation at the international level is deemed to be beneficial in terms of cultural, economic and technical matters and on the basis of the principle of reciprocity, foreign associations may undertake activities, establish higher bodies or participate in higher bodies already established in Turkey with the permission of the Council of Ministers. In line with this amendment, foreign associations have been given the opportunity to be active in Turkey.

Article 93

With this amendment, individuals (natural persons) of foreign nationality that have the right to settle in Turkey may establish associations or join associations already established on the basis of the principle of reciprocity. This is not required in the case of honorary membership. In this context, foreign individuals may establish associations in Turkey or become members of associations already established.

Article 94

This amendment introduces provisions on the conditions and procedures to be observed by associations when establishing branch offices.




Article 96

Articles 94 and 98 introduce provisions on the organizations formed by associations. According to the provisions of Article 96, federations are established when a minimum of at least five associations established for the same purpose join together. Every federation is governed by a regulation. The federation gains legal personality when the notification of establishment, the regulation and the necessary documents are submitted to the highest provincial administrator. This amendment allows associations to form federations in order to pool their resources and carry out activities more effectively through coordination at the national level.

Article 97

The amendments introduce provisions on confederations. Confederations are established when a minimum of three federations join together in order to realize their aims. Every confederation is governed by a regulation. A confederation gains corporate personality when the notification of establishment, the regulation and the necessary documents are submitted to the highest provincial administrator. In this context, legal provisions have been introduced on the establishment of confederations by way of joinder of federations.

Article 101 (Former Article 73-74)

According to the provisions of the new Article 101, “foundations are propertied communities with legal personality established when natural or legal persons allot sufficient resources and rights to a particular and continuous objective”. In this context, legal persons may establish foundations in the same manner as natural persons. The possession of “sufficient” resources is a condition for the establishment of foundations. The foundation also has a legal personality.

Another provision which reads as “there can be no membership in foundations”, distinguishes foundations from associations.

A new provision has been added to the final paragraph, which reads as “a foundation that violates the features of the Republic as identified in the Constitution and the fundamental principles of the Constitution, the law, morality, national unity and national interest, or supports the members of a specific race or community may not be established” in line with the principles of the Constitution. In addition, the provision that “foundations cannot be established for ideological purposes” has been removed.

Article 117 (Former Article 81/B)

The amendment to former Article 81/B by Article 117, which reads as “Provisions on the international activities and on the establishment of higher bodies of associations are to be applied analogously to foundations”, extends the liberal provisions applicable to associations to foundations as well.


III. Amendments for the protection of the weak

The following provisions in the new Turkish Civil Code introduced for the protection of the weak are relevant to the Political Criteria Section 2.1.11 (Full Enjoyment by All Individuals without Any Discrimination and Irrespective of Their Language, Race, Colour, Sex, Political Opinion, Philosophical Belief or Religion of All Human Rights and Fundamental Freedoms; Freedom of Thought, Conscience and Religion) of the NPAA.

Article 38 (Former Article 37)

The provision “the civil servant responsible for keeping personal records is directly responsible for damages resulting from inaccurate records” is no longer in force. This has been replaced with the provision that “the state is responsible directly for damages and shall recourse to compensation from the civil servant responsible for the error”. This provision protects the rights of the weak.

Article 199

The new article places limitations on the right of the spouse filing for divorce to undertake legal transactions in order to prevent him or her from depriving the other of the property. This provision has been introduced in order to prevent the wife from being deprived of her right to alimony and other indemnities.

Article 304 (Former Article 304)

The amendment to Article 304 extends the rights of the mother vis a vis the father regarding the payment of the costs of pregnancy and childbirth to the mother filing a paternity suit against the father who does not recognize the child as his own. According to the amendment, even if the child is stillborn, the mother may demand the payment of expenses from the father or from his heirs. The duration of time in which the mother receives payment to meet daily expenses prior to and after childbirth has been extended to six weeks.

Article 613 (Former Article 553)

This amendment introduces the provision that in cases where all children and grandchildren refuse the inheritance, “the spouse that outlives his or her spouse may benefit from his or her share of the inheritance.” The provision on the period of time allowed for the exercise of this right has also been deleted. This provision increases the protection extended to the surviving spouse.

Article 652

The amendment introduces the provision that if one of the spouses dies, and if the house or furniture used jointly by the spouses is part of the inheritance, then the surviving spouse may request that these be taken out of the inheritance so that he or she may continue to use them. This provision is also in favour of the surviving spouse.


IV. Amendments for the protection of the rights of the child

The provisions introduced by the new Turkish Civil Code for the enhancement of the rights of the child are also relevant for the Political Criteria Section 2.1.11 (Full Enjoyment by All Individuals without Any Discrimination and Irrespective of Their Language, Race, Colour, Sex, Political Opinion, Philosophical Belief or Religion of All Human Rights and Fundamental Freedoms; Freedom of Thought, Conscience) of the NPAA.

Article 182 (Former Article 148)

With the amendment to this article, a new phrase, which reads as “the interests of the child in terms of health, education and morality” has been added to the provision governing, in cases of divorce or separation, the relationship of the child with the parent who is not in custody of the child. Moreover, the amendment has introduced a provision, which allows the judge to determine the costs of care and education to be met by the parent who does not hold the custody.

Article 282 and the following articles

The sub-heading “on the establishment of lineage”, which has been added to the second section beginning with Article 282, eliminates the discrimination between legitimate and illegitimate children. The provisions in this section ensure that illegitimate children are of the same legal status as legitimate children, and thus, the rights of the child are protected.

Article 292 (Former Article 247)

The amendment to Article 292, which reads as “upon the marriage of parents, the illegitimate child will be subject to the same provisions as applicable to legitimate children” facilitates the exercise of the rights of the child from the legal and administrative points of view.

Article 328

The new Article 328 stipulate that both the mother and the father are responsible to take care of the child until the age of maturity and that this responsibility continues until the child completes his or her education even after the child reaches maturity.

Article 329

With this amendment, either the mother or father who actively takes care of the child may file for an alimony suit against the other. The child may also file this suit, provided that he or she has the capacity for discretion. In this provision, no age limit has been introduced and the possession of the capacity for discretion is deemed to be sufficient for the child to file a suit. These provisions ensure the effective protection of the child.

Article 330

This article introduces the provision that the judge may make adjustments in the amount to be paid as alimony if there are changes in the needs of the child or in the living standards of the mother and the father.

Article 332

This article introduces the provision that when an alimony suit is filed, the judge will take into consideration the interests of the child when taking the necessary measures and the decisions on precautionary measures.

Article 333

The article introduces the provision that the judge may decide, even before the suit is finalized, on an appropriate amount of alimony to cover the needs of the child during a paternity suit filed against the father that refuses to recognize the child as his own if the judge decides that there is reasonable evidence in favour of paternity.

Article 334

The article introduces the provision that the judge will take the necessary measures if the mother and the father do not fulfil their obligations of alimony.

Article 454 (Former Article 397)

The amendment introduces provisions in favour of the child placed under guardianship. The provision that the child must be of “a minimum age of sixteen” in the former Article 397 on the inspection of accounts held by the guardian on behalf of the child placed under guardianship by a judge is no longer in force. In accordance with the provisions of the Convention on the Rights of the Child, the child is required to have the capacity to “form and articulate his or her views.”
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