Parentage between a child and the mother arises automatically at the moment of birth; no further legal act is required for that link to be established. Since a child born to a married woman is also, as a rule, deemed to be the husband’s child, parentage on the father’s side likewise arises automatically. Where the child is born outside marriage, by contrast, the link with the father is not established automatically. For that reason the legislature has provided separate legal routes by which a child born outside marriage may establish parentage with the father.
That link may be established either by the father acknowledging the child or by bringing a paternity action. Of these two routes, acknowledgement occupies a distinctive place, since it is a mechanism that creates parentage by a unilateral declaration of intention.
The conditions under which a father may acknowledge his child and the procedure to be followed are governed by Article 295 of the Turkish Civil Code No. 4721. Acknowledgement may be effected by an application to the civil registry office or to the court, by an official deed drawn up before a notary, or by way of a will.
The Concept of Acknowledgement
Acknowledgement is the declaration by a father that a child born outside the union of marriage is in law his own child. This unilateral act, which is constitutive in nature, formally creates parentage between father and child. No approval of any authority and no consent of a third party is required for the act to be valid; it is sufficient that the father declares his intention in the form required by the statute.
By virtue of acknowledgement the child becomes able to benefit from rights of inheritance, maintenance and other legal rights against the father. Where the father refrains from entering the child in his civil registry record or asserts that the child is not his, the mother or the child may bring a paternity action and seek to have parentage established by a court decision.
Forms in Which Acknowledgement May Be Made
Acknowledgement must be effected in accordance with the formal requirements laid down in the relevant provisions of the Turkish Civil Code No. 4721. The routes recognised by the statute are as follows:
- Acknowledgement by way of a will: The father may secure the establishment of parentage by expressly stating in the will he draws up that he acknowledges his child.
- Acknowledgement by official deed: The child may be acknowledged by an official document drawn up before a notary, a court or a civil registrar.
- Acknowledgement by declaration made to a court: During pending proceedings the father may make a declaration of acknowledgement before the court and thereby establish parentage between himself and the child.
Each of these routes is subject to its own formal requirements if the act is to be regarded as valid.
Conditions for a Valid Acknowledgement
Whether an acknowledgement can produce legal effects depends on the conditions examined below being satisfied together.
Conditions as to Form
Acknowledgement must be made in accordance with the legal procedure prescribed by the statute. Accordingly, the act may be effected;
- by an official deed drawn up before a notary,
- by a written declaration submitted to a civil registrar or to a court,
- by a will.
The father may also carry out the acknowledgement through the Civil Court of Peace of his place of residence or of the place where he is entered in the civil registry.
Condition as to Capacity
Since acknowledgement is a unilateral legal act, it is as a rule not dependent on anyone’s approval. Even so, where the person making the declaration is a minor or under legal disability, the consent of the parent or guardian acting as legal representative is required. In all other cases the person acknowledging must have capacity to act.
Existence of a Biological Link
The person making the declaration of acknowledgement must be the biological father of the child. Where annulment of the acknowledgement arises at the trial stage, the existence of the paternal relationship is assessed on the basis of scientific evidence such as genetic testing.
Absence of Parentage Between the Child and Another Man
The validity of an acknowledgement depends on the child having no legal parentage with another man. Where the child was born within the union of marriage, the person married to the mother will be deemed to be the father, and the existing parentage must therefore first be set aside by judgment before the true father can carry out an acknowledgement.
Absence of a Defect in Intention
The declaration must be free from defects of intention such as mistake, deceit or duress. Since acknowledgement is a voluntary declaration, it is essential that the father has carried out the act of his own free will.
The Legal Consequences of Acknowledgement
Acknowledgement is an act that formally establishes parentage between father and child. Once the act is completed, consequences arise for both the child and the father under many headings, including inheritance, maintenance, surname, citizenship and custody. While the child obtains rights equal to those of children born within marriage, a series of obligations is also imposed on the father.
The Establishment of Parentage
By establishing parentage between a child born outside marriage and the father, acknowledgement places the child in the same legal status as a child born within marriage.
- The link between father and child becomes formal; the child is henceforth deemed in law to be the father’s child.
- With the establishment of that link the child’s legal rights against the father arise, and the father’s responsibilities towards the child likewise begin at that moment.
Rights Arising for the Child
Since acknowledgement creates a legal link between the child and the father, the child benefits from the rights set out below.
Right of inheritance
- The child becomes a statutory heir of the father and acquires a right of inheritance equal to that of children born within marriage.
- Even where the father has carried out the acknowledgement, it is possible for him to draw up a will with the aim of excluding the child from the estate. Since the child’s reserved portion is, however, secured by statute, that right is protected.
Right to maintenance
- With the acknowledgement the child acquires the right to claim maintenance from the father for the costs of care and education.
- The father is held responsible for the costs of care, education and health until the child attains majority.
- For as long as the child’s education continues — during university studies, for example — the child’s claim for maintenance may continue.
Surname
- Following acknowledgement the child, as a rule, continues to bear the mother’s surname.
- Even so, the father may apply to the court and request that the child take his own surname; the court gives its decision having regard to the best interests of the child.
Citizenship and civil registry record
- If the father is a Turkish citizen, the child may as a result of the acknowledgement acquire Turkish citizenship as well.
- The child is entered in the father’s civil registry record and the identity details are formally updated.
Rights and Obligations Arising for the Father
Acknowledgement does not create rights in favour of the child alone; it also imposes certain rights and responsibilities on the father.
Custody and the right to establish personal contact
- Acknowledgement alone does not confer custody on the father; custody remains, as a rule, with the mother. The father may bring a custody action relying on the best interests of the child.
- A father who acknowledges his child obtains the right to see the child regularly.
- Where the mother obstructs those meetings, the father may apply to the court and request a decision establishing personal contact with his child.
- The frequency of the meetings is determined by the court, having assessed the child’s age and interests.
Maintenance obligation
- The father becomes liable to meet the child’s costs of care, education, health and living.
- The amount of maintenance is assessed by the court, taking into account together the father’s economic means and the child’s needs.
Consequences Arising for the Mother
Although acknowledgement does not directly affect the mother’s rights, it does produce certain legal consequences.
- The mother may seek a contribution to the costs of the child’s care and thus claim maintenance from the father.
- It is also possible to claim from the father part of the costs of care and expenses relating to the period before the acknowledgement.
The Action for Annulment of Acknowledgement
The action for annulment of acknowledgement is a legal route allowing an act of acknowledgement, which amounts to an admission of paternity, to be rendered invalid. Since acknowledgement rests on a unilateral declaration of intention, it may bring certain drawbacks with it; for that reason the legislature has made it possible for the act to be annulled subsequently.
Certain conditions must be present for annulment. The action may be brought where the intention of the person acknowledging was defective, or where the mother or the child asserts that the person acknowledging is not the father. Whether the action can be entertained, however, depends on the existence of a valid act of acknowledgement; that is, the act must have been carried out in conformity with the statute both as to form and as to substance.
Where the act of acknowledgement is void, that is to say invalid from the outset, it cannot form the subject of an annulment action. Only an acknowledgement that has been validly created and is still standing may form the subject of this action.
Persons Entitled to Bring the Action
Only the persons provided for in the statute may bring an action for annulment of acknowledgement. The persons afforded a right of action and the scope of that right are examined below:
- The person acknowledging: A person acknowledging who has been subject to mistake, deceit or duress, being defects of intention, may seek annulment of the act. That action is directed against the mother and the child.
- The mother, the child and, where the child has died, the child’s descendants: These persons bring the action against the person acknowledging. If that person is no longer living, the action is directed against the heirs. Since the correct establishment of parentage concerns public order, the Public Prosecutor is likewise empowered to bring an action seeking annulment.
- The Public Prosecutor: May bring an action for annulment where the public interest so requires; this power is significant in terms of protecting public order and the correspondence of parentage with the truth.
- The Treasury: Where its interests relating to the estate are liable to be harmed, the Treasury may also bring the action. What is decisive here is being directly concerned with the act of acknowledgement and in a position to have those interests impaired.
- Other persons whose interests are affected: Persons whose right of inheritance is affected, or whose share of the estate is reduced, by reason of the acknowledgement — such as the heirs of the person acknowledging — may likewise seek annulment.
The Question of Proof
Where the action is founded on the assertion that the person acknowledging is not the father, the burden of proving that fact falls on the claimant. The claimant is expected to submit concrete evidence showing that the person acknowledging is not the biological father. In practice, evidence that is scientific and conclusive, such as DNA testing, is generally resorted to in files of this kind.
Article 299 of the Turkish Civil Code No. 4721 lays down a special rule in respect of annulment actions brought by the mother and the child:
Turkish Civil Code No. 4721, Art. 299
"In an action for annulment brought by the mother or the child on the assertion that the person acknowledging is not the father, the burden of proof arises after the person acknowledging has produced persuasive evidence that he had sexual intercourse with the mother during the period of conception."
The provision envisages that a rebuttable presumption arises where the person acknowledging establishes that he had sexual intercourse with the mother during the period of conception. Until that proof is made, no burden of proof rests upon the claimant mother or child. The presumption creates an assumption that the person acknowledging is the father of the child; the claimant party may, however, show the contrary of that assumption by any kind of evidence. That rule applies only to annulment actions brought by the mother or the child.
Thanks to the possibilities offered by technology, it can today readily be determined whether the person acknowledging is in truth the father. DNA testing in particular establishes biological paternity clearly and constitutes the most reliable and conclusive evidence on the file. Indeed, judgments given following examinations conducted without recourse to DNA testing may be quashed by the Court of Cassation on the ground of incomplete examination.
Time Limits for Bringing the Action
In an action for annulment of acknowledgement the time limits differ according to the capacity of the person bringing the action.
- For the person acknowledging: The right of action may be exercised for one year from the date on which the ground of annulment was learned of or the effect of the duress ceased; in any event it lapses upon the expiry of five years from the acknowledgement. Once those periods have run, the person acknowledging has no further possibility of bringing an action.
- For the interested parties: Time begins to run on the date on which the claimant learned both of the acknowledgement and of the fact that the person acknowledging cannot be the father of the child. The right of action is valid for one year from that moment and in any event lapses upon the expiry of five years from the acknowledgement. If the action is not brought in time, the right is extinguished.
- For the child: The child’s right of action arises upon attaining majority. The child must exercise that right within one year of reaching majority; otherwise the right of action lapses.
- Where the delay rests on a justified ground: Even if the above periods have expired, where a ground exists that justifies the delay the action may be brought within one month from the cessation of that ground. This possibility may extend the period for bringing the action; where a certain period is exceeded, however, the right lapses nonetheless.
The Court with Subject-Matter and Territorial Jurisdiction
- Subject-matter jurisdiction: The forum with subject-matter jurisdiction in an action for annulment of acknowledgement is the Family Court.
- Territorial jurisdiction: The action may be brought before the court of the place of residence of one of the parties, or before the court of the place deemed to be the place of residence of one of the parties at the time of the child’s birth.
The Independent Legal Assessment
Acknowledgement is an act that establishes parentage by a single declaration and whose reversal is tied to strict time limits. A significant proportion of the problems encountered in practice stem from the act being carried out without compliance with the formal requirements, or from recourse being had to acknowledgement without the child’s existing parentage with another man first being set aside. Since relations of inheritance are also directly affected, the consequences of acknowledgement are not confined to the mother, the father and the child alone.
In setting a road map for a concrete file, it is appropriate to give priority to the following matters:
- Verifying against the civil registry records, before acknowledgement, whether the child already has an existing parentage
- Selecting the form of acknowledgement having regard to the proof of the act and to objections that may arise in the future
- Establishing by documentary evidence, in annulment actions, the moments at which the one-year and five-year periods begin to run
- Requesting DNA examination from the outset in files where paternity is in dispute
- Assessing in advance the capacity to sue of persons whose reserved portion and share of the estate are affected
- Bearing in mind that claims for custody and personal contact form a process separate from the acknowledgement itself
Independent Legal provides advisory services and conducts litigation throughout the process in disputes concerning parentage, from the structuring of the act of acknowledgement to the conduct of the annulment action.