Document

Turkish Civil Code Samim Unan

1926 • Turkish Civil Code was taken from Switzerland in 1926. • Why the Swiss Code? • Switzerland was one of the countries with which Turkey (Ottoman Empire) was never in war….. • The Swiss Code was simple (compared to BGB and Code Napoléon (French Civil Code) • It was thought that Turkish people would understand and apply the Swiss Civil Code easily and better than another foreign Code

1926 • Besides the young Republic was in need of completing the law reforms as quickly as possible. • To translate and put into force the BGB and the French Civil Code would take more time and would necessitate more efforts.

1926 • Explanatory reasoning: • Due to continuous social and economic relations a civilized part of the mankind has become a large family. • The idea that Swiss Civil Code would not satisfy the needs of the Turkish nation must be rejected. Switzerland contains people from German, French and Italian origin. A Code which is successfully applied in such a diversified society would also be suitable to Turkey.

1926 • Christian minorities in Turkey: Greeks, Armenians • They thought also that the Swiss Civil Code would suffice to their needs. • So the Swiss Code led Turkey to have a unified legal system.

2002 • In 2002 the Turkish Civil Code was revised. • Although a new Code was enacted, this is rather a revision and not a reform. • The translation errors are corrected, the language was simplified and some new choices were made.

What is new? Introductory rules • In the Introductory rules (Einleitung) some minor changes. • Art. 5 Turkish CC • “General provisions of the Civil Code together with the General Provisions of the Code of Obligations shall apply mutatis mutandis to all private law relations” • SchZG Art.7 • Die allgemeinen Bestimmungen des Obligationenrechtes über die Entstehung, Erfüllung und Aufhebung der Verträge finden auch Anwendung auf andere zivilrechtliche Verhältnisse.

What is new?- Persons • Art. 40 Turkish CC • Any person may request from the Court that his/her gender (sex) be altered. The Court authorizes the alteration of the gender under the following conditions: – The relevant person is at least 18 years old – Is not married – Proves by a medical report from a hospital that • he/she is of transsexual character • The change of the sex is necessary for his/her mental health • He/she is permanently disabled in his/her capability of fertility

What is new?- Real persons • Art 40 Turkish CC (continued) • The personal status registry will be altered upon presentation of a medical report stating that the relevant person has passed the (successful?) surgical intervention aimed at changing the gender.

What is new? Moral persons • The legal entities (moral persons): New rules about associations (in order to be in line with the developments in that area). • 1982 when the Turkish army intervened, one of the invoices was sent to associations which were believed to have encouraged the clashes and fights between the two main camps of that period (left/socialists + communists and right/mainly conservative nationalists) • Other invoices were sent to political parties, labor organizations (shut down) and universities.

What is new?- Moral Persons • A special law about associations was enacted right after the 1982 military coup. • This law provided a heavy state control over the associations. • The strict and reactionary solutions were gradually abandoned.

What is new? Family Law- Marriage • The main concern was the “equality” between wife and husband. • The age for marriage is now the same for women and men (at least 17 years old = in the course of the 18th year). • Mental illness is not anymore an absolute obstacle to marriage. If an official report determines that the mental illness should not have a preventive effect, the marriage will then be possible.

What is new? Family Law- Marriage • The marriage ceremony must take place at the official marriage house before the mayor or his representative with the presence of two adults having the capacity of discernment. • The mayor must ask the woman and the man separately whether he/she desires the marriage. The marriage is legally completed when both the man and the woman expressed their consent. • The mayor declares thereafter that the marriage is duly accomplished (declaratory closing). • The accomplishment of a religious marital ceremony would not give rise to a valid marriage.

What is new?- Family law- Divorce • Although the view was expressed during the drafting of the new CC that a single cause for divorce (namely the collapse of the union) would be sufficient, the ancient system was finally maintained. • Debate especially about the “adultery” (whether this should be kept as a separate cause of divorce). •

What is new?- Family law- Divorce • If during the legal proceedings for divorce the claimant dies, his/her heirs may pursue the divorce request. • The defendant party shall be deprived of the right of successions if the court determines that he/she is at fault (upon the death, the proceedings would be converted to obtain a declaratory judgment about the fault).

What is new? Family Law- General Provisions concerning the marriage • The new provisions are aimed at ensuring the equality of man and woman • Choice of the familial residence shifted from the husband’s choice to a common choice. • The administration of the marriage with common decision. • Equal sharing of the common expenses (however each will participate to the extent of his/her economic situation).

What is new? Family Law- General Provisions concerning the marriage • The woman is entitled to keep also her family name before the marriage (solution adopted a few years before the CC is maintained). • Man and woman can equally represent the marriage union. • Woman entirely free in the choice of her professional activity

What is new? Family Law- General Provisions concerning the marriage • Legal transactions in respect of the familial residence (termination of the hire contract, transfer of the property; to give a charge) the consent of the other must be obtained. • The man/woman who is not the owner of the familial residence is entitled to request that the relevant annotations be made to the registry of real estate. • If the familial residence is hired by one the spouses, the other spouse may by unilateral declaration become a party to the hire contract.

What is new? Family Law- Marital property regime • The legal marital property regime is the participation to the acquired property (Errungenschaftsbeteiligung) • This new regime replaced the “separation of property” that was the legal regime.

Successions • Generally in line with the SchwZG.

Property law • The joint property is regulated taking into account the Swiss reform of 1965.