Engagement in Turkish law. Part 1

second part of the article

Only few people know that in Turkish law there is such a thing as “Engagement”. It happens that a party does not even know that it has concluded a full-fledged contract that has legal force and imposes a number of obligations on the parties. This is an engagement between two Turkish citizens, a citizen of the Republic of Turkey and a foreigner, or between two foreigners who are citizens of different countries and reside in Turkey (MÖHUK-12). For foreigners – citizens of one state, the legislation of their country applies.

Engagement is a promise to marry (TMK-118). Her conclusion requires the observance of a number of conditions: only a man and a woman can be engaged (there are no same-sex marriages in Turkish law) who have reached marriageable age, are not married (polygamy is prohibited in Turkey) and do not have any other obstacles to marriage. Otherwise, the engagement will be invalid (and in the case of a same-sex couple, such an agreement will simply not legally exist). Contrary to public opinion, it is not obligatory to perform traditional ceremonies to conclude an engagement, an oral or written promise to marry or even an implicit expression of will is sufficient. The contract will have legal force. The expression of will must be personal, a message about the promise to marry can be transmitted through a third party, but you cannot transfer to him the authority to choose the bride / groom. If without the personal will of the contract (engagement) legally does not exist.

 

What obligations does it impose and what rights does the status of “engaged” give?

First of all, the engaged people become legally close relatives for each other *, which means that they have the right not to testify to each other in court and other similar rights. It also imposes obligations such as fidelity and material assistance in accordance with the traditions of society. On the basis of the engagement, it is impossible to force the other party to enter into marriage, but if a number of conditions are met, you can get some monetary compensation in case of termination of the engagement (TMK 120).

The end of the engagement

The most natural end to an engagement is the marriage of the engaged. Also, the engagement can be peacefully terminated by mutual agreement of the parties. In this case, no one (neither the parties, nor the parents of the parties) can demand the payment of any compensation. An exception is the mutual return of gifts (with the exception of the engagement ring and gifts with low cost, which are usually given in this circle) (TMK-122). Also, the engagement can cease by itself if a pre-agreed condition for the termination of the engagement is fulfilled (for example, if it was agreed that the engagement will cease if the groom is expelled from the university and he was expelled). In this case, too, no one can claim compensation, and here you can also demand a mutual return of gifts. Another reason for the termination of the engagement is the impossibility of marriage (especially in the case of the death of one of the engaged).

This also includes cases when one of the engaged is missing or has changed sex. Another reason is the occurrence of a reason that completely impedes marriage. For example, a severe and incurable mental disorder of one of the engaged or the adoption of one engaged to another (although this is not found in practice).

Interesting fact: The Imperial Court in Germany in 1897 ruled that suicide was the end of the engagement due to the suicide and sentenced his relatives to pay compensation.

Lawyer in Turkey on the termination of the engagement:

The engagement can be terminated by one of the parties personally, without the consent of the other party. Tue here begins the distinction between a good reason for terminating an engagement from a disrespectful one. In the above-mentioned historical curiosity, the Imperial Court recognized suicide as a disrespectful reason for terminating the engagement.

What is the situation with Turkish law? Here are examples of reasons that are recognized in Turkish law as valid: the bankruptcy of one of the parties, the recognition of subsequently unacceptable negative character traits or unsightly details of personal life from the past of the other side, a strong difference in attitudes and religions, a serious and prolonged illness of the other side that began after the engagement was signed ( especially in the reproductive sphere), well-founded belief that the marriage will be unhappy, an infectious and incurable disease that terminates the engagement of the party, come without her fault. Immorality of the other party’s family, alcohol abuse of the other party, prolonged avoidance of marriage without a good reason are also sufficient to terminate the engagement (a valid reason). Sufficient reasons for divorce are also sufficient reasons for terminating the engagement (adultery, ill-treatment, etc.). In any case, the judge himself decides whether the reason was valid (TMK-4).

The party that terminated the engagement without good reason or the party whose fault the engagement was terminated must pay compensation to the affected party. The conditions for compensation and the consequences of the termination of the engagement will be discussed in the next article of this section. The attorney in Turkey with many years of experience (Seyhan Law Office) also deals with similar cases.

Sources: TMK (Turkish Civil Code), MÖHUK (Code of Procedure for Private International Law) and the Family Law Textbook

(Prof. Dr. Mustafa DURAL, Prof. Dr. Tufan ÖĞÜZ, Prof. Dr. Mustafa Alper GÜMÜŞ ‘Türk Özel Hukuku Cilt III Aile Hukuku’ İstanbul 2016).

Продолжение…