Although the great majority of marriages in Türkiye are contracted before a civil registrar, the practice of a religious ceremony — commonly referred to as an imam marriage — continues to exist. Yet a ceremony of this kind, performed without any official act, creates no bond of marriage in the legal order, and the gap it leaves most often works to the woman’s disadvantage.
Resting on faith and custom, a religious marriage affords the woman no legal security whatsoever in terms of inheritance, maintenance or the division of property. In addition, the uncertainties that arise as to the parentage, custody and inheritance rights of children born of such a union may lay the ground for significant losses of rights. Many women who regard themselves as married do not pursue their rights on that assumption, and, where the relationship comes to an end through separation or death, they suffer because no legal protection is available.
Below we examine, as a coherent whole, the position under Turkish law of a woman living in a religious marriage, the claims she may raise, the rights of which she cannot avail herself, and the legal and social consequences to which such a union gives rise.
The Legal Character of a Religious Marriage
In common usage, an imam marriage is a ceremony performed by persons wishing to marry, in accordance with their beliefs, in the presence of a religious official and accompanied by at least two witnesses. Notwithstanding how frequently this practice is encountered in social life, a marriage before a civil registrar is essential if a union is to be regarded as a marriage in law and if the legal rights and obligations attaching to the marital union are to arise. Unless that act is performed, there can be no question of the provisions of family law being applied between the parties.
The misconception that a religious ceremony suffices on its own to obtain the legal rights arising from marriage is, by contrast, the source of various forms of hardship for women. For this reason the legal character of a religious marriage is assessed in the sections below along the axis of the woman’s rights and claims.
The Rights of a Woman Living in a Religious Marriage
The Legal Position of Unions Not Based on an Official Act
Unions formed solely by a religious ceremony, without a marriage before a civil registrar, create no valid marriage in the legal order. Since the parties do not bear the status of spouses in the legal sense, they neither come under obligations towards one another arising from the marital union and from family law, nor are they able to benefit from the protective mechanisms that an official marriage affords.
Typical Forms of Hardship Faced by Women
There is a settled belief in society that a religious ceremony suffices as regards access to certain legal rights arising from marriage. This mistaken perception, to the effect that a religious marriage secures a number of rights in our law, leads in particular, at the moment the union comes to an end, to the woman being left without legal protection and suffering serious losses.
In order to forestall consequences of this kind, it is of great importance that the woman should know her legal position in advance in relation to matters such as the matrimonial property regime, claims for maintenance and damages, custody of a child of the union and the establishment of that child’s parentage, the separation process and inheritance rights.
The Position as Regards Inheritance
Where a union based on a religious marriage comes to an end upon the man’s death, there can be no question of the woman acquiring the status of a statutory heir. Her ability to claim a share of the estate depends solely on the deceased having appointed her as an heir during his lifetime by drawing up a will or a contract of succession. Even where such an appointment has been made, it must not be overlooked that, as an appointed heir, the woman is accorded no reserved portion protected by law.
Claims That May Be Raised on Separation
There is no special provision in our law addressing religious marriage. Accordingly, nor is there any statutory framework setting out the claims that couples without an official marriage may raise at the moment of separation. In these unions, which are devoid of legal status, it is not possible to avail oneself of divorce and the ancillary rights attached to it, and the claims advanced are assessed in the light of the general provisions and the case law.
Can Pecuniary and Non-Pecuniary Damages Be Claimed?
The absence of a special rule does not mean that the parties may assert no claim at all. As regards the claims to be advanced during the separation process, the provisions of fields such as the law of persons and the law of obligations, together with the case law, play a determinative role.
That said, the practice of the Court of Cassation concerning claims for damages by a woman living in a religious marriage does not present a consistent picture. For instance, a claim for non-pecuniary damages by a woman deceived in reliance on a promise of marriage is accepted in some decisions and dismissed in others. For this reason such claims are determined differently in each dispute, according to the discretion of the authority conducting the proceedings.
On the other hand, provided that the conditions are met, it is also possible to claim damages on the basis of tortious liability within the framework of the general provisions of the Turkish Code of Obligations No. 6098. If the court establishes that the other party caused the woman loss by conduct that was unlawful or contrary to morality and intentional, judgment may be given in the woman’s favour.
Can a Claim for Maintenance Arise?
Since a union formed by a religious marriage is not regarded as a marriage in law, a party who falls into economic difficulty after separation cannot claim poverty alimony.
The Legal Position of Children Born of Such a Union
It is not possible to place a relationship formed solely by a religious ceremony on a legal footing in the absence of an official marriage. For this reason the children of such unions are regarded in law as children born outside marriage, and this characterisation gives rise to a number of consequences affecting the child’s rights.
The Establishment of Parentage
Parentage between the child and the mother is established upon birth in every case. Where the child is born within marriage, the bond with the husband arises of its own accord. By contrast, since a child born of a religious-marriage relationship is regarded as having been born outside marriage, the establishment of parentage between the child and the father depends on the father formally acknowledging the child or on that relationship being proved by a paternity action. For further detail on the subject, our notes entitled Paternity Action and Acknowledgement of Paternity may be consulted.
To Whom Custody Belongs
Since unions formed by a religious marriage create no marriage in law, the provisions of the Turkish Civil Code No. 4721 concerning children born outside marriage come into play on the question of custody. Under Turkish Civil Code No. 4721 Art. 337, custody of a child born outside the marital union belongs as a rule to the mother; the father does not acquire the right of custody over the child of his own accord.
Claiming Child Support from the Father
A mother who assumes the care of a child of a religious-marriage union may, provided that parentage between the child and the father has been established, claim child support from the father in order to meet the child’s care and educational expenses.
The Child’s Inheritance Rights
Even where there is no official marriage between the parties, if parentage between the child of the union and the father has been established, the child may be a statutory heir of the deceased father in the capacity of a descendant.
Independent Legal Assessment
In unions based on a religious marriage, the factor that determines the picture is not the will of the parties but the absence of an official marriage. As regards the woman, the door to the matrimonial property regime, maintenance and inheritance is as a rule closed; as regards a child of the union, by contrast, the establishment of parentage reopens the greater part of the rights capable of protection. For this reason priority in practice is most often given to establishing parentage as soon as possible by way of acknowledgement or a paternity action.
Where a union of this kind comes to an end, it is recommended that the following points be reviewed:
- Determining at the first stage whether, if there is a child of the union, parentage has been formally established
- Examining whether there exists a set of facts on which a claim for damages may be founded under the provisions on tort
- Establishing by documentary evidence the contributions made to the assets acquired during the union
- Investigating whether there is a will or a contract of succession
- Assessing together, as regards the child, the questions of custody, child support and inheritance rights
Independent Legal provides advisory services and conducts litigation in disputes concerning damages, parentage, custody and maintenance arising from unions in which there is no official marriage.