Marriage stands foremost among the institutions that form the foundation of social order, and in that capacity it carries both a social and a legal dimension. In the Turkish legal order, whether a union may be regarded as a marriage is made dependent on a civil marriage ceremony having been performed. By contrast, the religious marriage ceremony performed as a requirement of faith is still widely practised in society. Two questions come to the fore at this point: what is the equivalent of a religious ceremony within the legal order, and does a religious ceremony performed without a civil marriage produce any legal consequence?
The Turkish Civil Code No. 4721 requires a ceremony before the competent authority for a marriage to come into legal existence. Unions established solely by a religious ceremony, without a civil marriage, are not characterised as marriages for the purposes of the legal order. That characterisation can cause the parties to lose rights under a great many headings, such as succession, the matrimonial property regime and the legal position of the children.
Below we examine in detail the position of the religious marriage ceremony before the law, the consequences that may arise from a union established without a civil ceremony, and the amendments made to the legislation in this field.
What Is a Religious Marriage Ceremony (Imam Nikah)?
The religious ceremony known popularly as the imam nikah is a ceremony that persons wishing to marry perform, as a requirement of their beliefs, before a religious official and in the presence of at least two witnesses. However widespread this practice may be in daily life, the Turkish Civil Code (TCC) has made a union’s being regarded as a marriage in law, and its acquiring official status, dependent on the performance of an official ceremony attended by the authorised marriage registrar. Where there is no civil marriage, there is no question of the provisions of family law being applied as between the parties.
The fact that a broad section of the public holds a mistaken belief on this subject can give rise to serious hardship in determining the reciprocal rights and obligations of persons living together under a religious ceremony. It is therefore useful to clarify the legal framework of the subject.
Civil Marriage and Its Conditions in Turkish Law
The Marriage Ceremony Under the Civil Code
The ceremony known as the civil marriage is the procedure performed in conformity with the formal rules required by the Act, at the end of which the family booklet is issued in order to document the marriage. The legal framework and the formal requirements relating to this procedure are laid down in the Turkish Civil Code No. 4721.
Under Turkish Civil Code Art. 141 and the following provisions, the ceremony is performed publicly at the marriage office, in the presence of two adult witnesses with the capacity of discernment and of the authorised marriage registrar. The registrar asks the parties whether they wish to marry one another; upon both of them replying in the affirmative orally, the marital union is established. Following the ceremony completed in compliance with the formal requirements, the marriage registrar hands the family booklet to the spouses. The family booklet is an official document that establishes and serves to prove that the marriage has been contracted.
The Legal Consequences of Civil Marriage
When the parties express their will to marry orally and clearly during the ceremony, the marriage is established in law and begins to produce effects. From that moment reciprocal rights and obligations arise between the spouses on such matters as the duty of fidelity, the management of the union and the provision for the family’s subsistence. The official ceremony affords the spouses significant legal security as regards custody, the statutory matrimonial property regime, succession and the consequences arising in the event of divorce.
The Legal Consequences of a Religious Marriage Ceremony
Unions established by a religious ceremony alone do not bring about a legally valid marriage. Since the parties do not bear the status of spouse before the law, they do not come under obligations towards one another arising from the marital union and from family law; conversely, neither can they benefit from the safeguards that a civil marriage confers. For that reason the consequences produced by the two institutions must be assessed separately from one another. The rights and legal position of a woman married in a religious ceremony must likewise be addressed through this distinction.
Custody of a Child Born to a Partner in a Religious Marriage
Because unions established by a religious ceremony are not regarded as marriages in law, the provisions of the Turkish Civil Code No. 4721 relating to children born outside marriage come into play as regards custody. Under Turkish Civil Code Art. 337, custody of a child born outside the union is as a rule vested in the mother; the father does not acquire a right of custody over such a child of his own accord.
Alimony and Damages Claims in the Event of Separation
Alimony
Because a union established by a religious ceremony is not recognised in law as a marriage, it is not possible for the party who falls into economic difficulty on separation to claim poverty alimony. By contrast, the party who in fact assumes the care of the joint child may claim child support from the mother, or from the father where parentage has been established, in order to meet the child’s maintenance and education expenses.
Damages
In unions founded on a religious ceremony, non-pecuniary damages cannot be claimed on the ground of a breach of the obligations arising from the marital union. In certain circumstances, however, a claim for damages founded on liability in tort may arise within the framework of the general provisions:
Turkish Code of Obligations No. 6098, Art. 49
“Whoever causes damage to another by a culpable and unlawful act is obliged to make good that damage.
Even where there is no rule of law prohibiting the harmful act, whoever intentionally causes damage to another by an act contrary to morality is likewise obliged to make good that damage.”
Under this provision, damage caused by the religiously married partner through unlawful conduct, or damage knowingly brought about by an act contrary to morality, may constitute the basis of a claim for damages. Whether such a claim satisfies the statutory conditions is, however, examined separately and on the basis of concrete data in each dispute. If the conditions have not materialised, the court will dismiss the claim.
The Inheritance Rights of a Partner in a Religious Marriage
Where one of the parties to a union founded on a religious ceremony dies, there is no question of the survivor acquiring the status of statutory heir of their own accord. If, however, the deceased drew up a will during their lifetime or appointed the other as heir by way of a contract of succession, the surviving party may come into the position of an appointed heir.
On the other hand, even where no official ceremony has been performed, it is possible for the joint children to be statutory heirs of the mother, and, where parentage has been established, of the father as well, in their capacity as descendants.
Can a Religious Ceremony Be Performed Without a Civil Marriage?
The rules relating to marriage are laid down in the Turkish Civil Code No. 4721. The provision contained in Turkish Civil Code Art. 143 makes it plain that a religious ceremony may be performed only after the civil marriage:
Turkish Civil Code No. 4721, Art. 143
“The religious ceremony of marriage may not be performed without the family booklet being produced.”
Is Performing a Religious Ceremony an Offence?
Until 27 May 2015, the performance of a religious ceremony alone without an official ceremony was made an offence under the fifth and sixth paragraphs of Article 230 of the Turkish Penal Code No. 5237. In its decision of 27 May 2015, the Constitutional Court concluded that the provision in question impaired the right to respect for private and family life and freedom of religion and conscience, and annulled those paragraphs.
Accordingly, under the legislation in force, the performance of a religious ceremony alone without a civil marriage is not subject to any criminal sanction.
The Place of the Religious Ceremony in the Turkish Penal Code
The criminal legislation provides no sanction specific to the performance of a religious ceremony. By contrast, criminal liability may arise in certain situations falling within the scope of Turkish Penal Code Art. 233(2):
Turkish Penal Code No. 5237, Art. 233(2)
“Any person who abandons in a helpless situation their spouse whom they know to be pregnant, or an unmarried woman with whom they live permanently and who they know has become pregnant by them, shall be sentenced to imprisonment from three months to one year.”
By way of example, this provision finds a field of application where, in a union in which there is only a religious ceremony, the man abandons the woman with whom he lives, knowing her to be pregnant, leaving her in a helpless situation. In such a case, alongside criminal liability, the right of a religiously married partner to damages may also become a matter for debate.
Differences Between the Religious Ceremony and Civil Marriage
Where a religious ceremony alone is performed without an official ceremony, the parties cannot acquire the status of spouse before the legal order. The direct consequence of this is that they cannot benefit from the statutory rights arising from the marital union and cannot demand the statutory obligations of the other party.
The difference takes concrete form in the fact that the rules on the matrimonial property regime, claims for alimony and damages, custody of the joint child and the establishment of parentage, the institutions of divorce and separation, and inheritance rights cannot find a field of application.
The Difference in Legal Binding Force
Although the religious ceremony carries a spiritual meaning in terms of the parties’ beliefs, it does not on its own produce any binding legal consequence. The recognition of the union by the legal order, and the parties’ ability to benefit from statutory safeguards, depend on a civil marriage having been contracted.
Public Perception and Its Consequences
There is a settled misapprehension among the public to the effect that the religious ceremony is sufficient for the purposes of benefiting from statutory rights. This mistaken belief leads, particularly at the stage when the union comes to an end, to the parties being deprived of statutory rights and to various forms of hardship. In order for legal protection to be secured, it is therefore of great importance that a civil marriage be contracted alongside the religious ceremony.
The Grant to Muftis’ Offices of the Power to Conduct Civil Marriages
The Statutory Basis of the Amendment
By the amendment of 19 November 2017, the phrase “provincial and district muftis’ offices” was inserted into Art. 22(2) of the Population Services Act, which sets out the power to conduct marriages. The way was thereby opened for the Ministry of the Interior to confer the duty and power of marriage registrar on muftis’ offices.
Following the amendment to the Act, the legal ground was laid for muftis to perform religious rites during a civil marriage as well, by means of the amendment made by the Ministry of the Interior to the Marriage Regulation on 28 November 2017 and the instrument of the Presidency of Religious Affairs dated 1 February 2018 entitled “Circular on the Power to Conduct Civil Marriages”.
The Effects of Muftis Conducting Civil Marriages
The aim of these measures was to steer couples who, on account of their religious sensitivities, regard a religious ceremony as sufficient towards a civil marriage accompanied by religious rites. The union thus established is brought onto a legal footing and the parties acquire statutory rights.
The Independent Legal Assessment
A significant proportion of the disputes encountered in practice stems from the assumption that a religious ceremony gives rise to a legal status. Yet however long the union may have lasted, unless an official ceremony has been performed no consequence attached to the relationship of spouses arises between the parties. In that picture, the pursuit of rights has to be conducted through parentage, tort and general obligations rather than through the provisions of family law; and that makes the burden of proof heavier.
For that reason it is important that the legal position be assessed in advance in unions established by a religious ceremony. In a given case, the following headings should be reviewed as a priority:
- determining, where there is a child, whether parentage has been established by way of acknowledgement or an action for paternity,
- framing the claims for custody and child support within the framework of the provisions relating to children born outside marriage,
- anticipating from the outset that claims such as poverty alimony and non-pecuniary damages will be without foundation,
- examining separately, in terms of the conditions of tort, the possibility of damages founded on the general provisions,
- assessing, in the event of death, any claim to succession according to whether a will or a contract of succession exists.
Independent Legal provides advisory and litigation services across the whole of the processes relating to parentage, alimony, damages and succession in disputes in the field of family law.