Where the conditions required by statute have not been met when the marriage union is contracted, the resulting bond is legally defective and its annulment may be sought. The action for annulment of a marriage is governed by Articles 145 to 160 of the Turkish Civil Code No. 4721 and, by reason of its legal nature, differs from an action for divorce.
The difference becomes apparent at the starting point of the action. In divorce there is a validly contracted marriage, and the termination of that union is sought by reliance on the fault of one or both of the parties. In an annulment action, by contrast, the aim is to establish the legal defectiveness of a marriage that was not duly contracted and that ought to be regarded as invalid from the outset.
In this briefing note we address in detail the cases in which a marriage will be regarded as invalid, the situations in which an allegation of invalidity will not be entertained, the persons entitled to bring the action, the time limits to be observed and the consequences produced by an annulment decision.
The Action for Annulment of a Marriage on the Ground of Invalidity
By the annulment action it is asserted that the marriage is invalid on the ground that one of the cases listed in the statute has arisen. Where the court orders annulment, the marriage comes to an end. In other words, the subject matter of this action is a finding that the union is defective, and ought to be regarded as invalid, because a ground of absolute or relative nullity was present at the stage of the marriage formalities and the ceremony.
An important detail is that, until an annulment decision is given, the marriage produces all its consequences just as a valid marriage would. Invalidity does not take effect of its own accord; the court’s decision must be awaited.
Invalidity of the Marriage by Absolute Nullity
An annulment action founded on invalidity may, as the statute requires, be brought on the basis of grounds of absolute or of relative nullity. Absolute nullity is the type of invalidity that concerns public order, is not subject to any time limit, may be asserted by anyone with an interest, and produces effects for the future by decision of the judge.
Grounds of Absolute Nullity (Turkish Civil Code No. 4721, Art. 145)
- One of the spouses being married at the time of the marriage: Since our law does not permit polygamy, the second marriage of a person who marries again before their previous marriage has come to an end is regarded as invalid. That said, if before a decision of absolute nullity is given in respect of the second marriage the previous marriage has come to an end by death or divorce, and if the other spouse in the second marriage is in good faith, that is to say does not know and is not in a position to know that the other party was married, the subsequent marriage cannot be declared invalid.
- One of the spouses lacking capacity of discernment for a permanent reason at the time of the marriage: It is not legally possible for a person lacking capacity of discernment to marry. Where the lack of capacity is permanent, the marriage is vitiated by absolute nullity. What is decisive here is that the lack of capacity be of a permanent nature; a temporary lack of capacity at the time of the ceremony is, as we explain below, treated as a ground of relative nullity.
- One of the spouses suffering from mental illness of a degree that prevents marriage: Where one of the spouses suffers from a mental illness grave enough to prevent them from marrying, and this is established by a medical report, the marriage is declared invalid.
- Kinship between the spouses of a degree that prevents marriage: The legislation prohibits marriage between ascendants and descendants, between siblings, and between uncles and aunts on both the paternal and the maternal side and their nieces and nephews. The same prohibition applies as between one spouse and the ascendants and descendants of the other, even where the marriage has come to an end. Marriages contracted between an adopter and the adopted child, or between one of them and the descendants and the spouse of the other, are likewise regarded as invalid by absolute nullity.
For an annulment action to be entertained, at least one of these grounds must be present in the particular case. An annulment action brought in respect of a marriage exhibiting none of the cases listed will be dismissed.
Limitation or Extinction of the Right of Action
The existence of the above cases as a rule opens the way to an action of absolute nullity. The statute has, however, narrowed or entirely removed the right of action in certain situations:
- The permanent lack of capacity of discernment being remedied: Where a spouse who permanently lacked capacity of discernment at the time of the marriage acquires that capacity before a decision of nullity is given, the action may be brought only by the spouse who has subsequently acquired capacity of discernment.
- Recovery from the mental illness: The fact that one of the spouses was mentally ill at the time of the marriage gives rise to a right of action. Where, however, the illness has passed after the marriage and the union is in fact continuing, the capacity to bring the action of absolute nullity is afforded solely to the spouse who was previously mentally ill.
- Termination of the marriage: Where the marriage has come to an end by death or divorce, an action of absolute nullity may no longer be brought. By contrast, the death of one of the spouses after the action has been brought does not halt the proceedings; the action continues to be heard.
Who May Bring the Action of Absolute Nullity?
Since the grounds of absolute nullity listed in the Turkish Civil Code No. 4721 directly concern public order, the capacity to bring an action has been kept broad. Accordingly, both spouses who are parties to the marriage, the public prosecutor of their own motion or upon notification, the spouses’ mothers and fathers, their siblings and relatives of a similar degree of closeness, their heirs and anyone with a personal or legal interest may bring this action.
As regards a marriage that has come to an end, the picture changes. The annulment of such a marriage on the ground of absolute nullity cannot be made the subject of an action by the public prosecutor of their own motion; the action may be brought only by those concerned, for example by the heirs where the marriage has come to an end through the death of one of the spouses.
Time Limits in the Action of Absolute Nullity
A request for annulment founded on a ground of absolute nullity is not subject to any time limit. An annulment action may be brought at any stage while the marriage continues.
Invalidity of the Marriage by Relative Nullity
Relative nullity is the type of invalidity that concerns only the interests of the spouses, may for that reason be asserted only by them, and the assertion of which is subject to preclusive periods.
As in the case of absolute nullity, here too the marriage continues to produce all the consequences of a valid marriage until the court’s decision is given.
Grounds of Relative Nullity (Turkish Civil Code No. 4721, Arts. 148-151)
The presence of one of the cases listed below makes it possible to bring an action seeking the annulment of the marriage on the ground of relative nullity:
- Temporary lack of capacity of discernment: Where one of the spouses temporarily lacks capacity of discernment at the time of the marriage ceremony, for instance by reason of severe intoxication, the marriage is vitiated by relative nullity. The fact that the spouse concerned brought this about through their own fault, for example by consuming alcohol, does not prevent them from bringing an annulment action.
- Mistake (error): A spouse who, without wishing to marry at all, consented to the union as a result of a mistake — for example a person who accepted the marriage during a theatrical performance believing everything to be fiction; a spouse who married another person after confusing them with the person they wished to marry — for example a person who, wishing to marry A, took A’s twin B for A; or a spouse who married without knowing of a matter concerning the other party of such a nature as to render the marriage intolerable for them — for example a person unaware that the other spouse had in the past committed a disgraceful offence, may request annulment on the ground of relative nullity.
- Deceit (fraud): Where one of the spouses, or a third party acting with the spouse’s knowledge, deceives the other spouse as to honour and dignity, or where an illness posing a grave danger to the spouse and their descendants is concealed, a right of action arises for the spouse who has been deceived.
- Duress (coercion): Where one of the spouses puts the other in fear by a grave and imminent threat that harm will be done to their own life, health, honour and dignity or to those of a relative, and the marriage is contracted under that pressure, the union is vitiated by relative nullity. One party saying to the other "If you do not marry me I will kill you." is a typical example of this situation.
The Preclusive Period in the Action of Relative Nullity
In cases of relative nullity the bringing of an annulment action is, as the statute requires, subject to preclusive periods of 6 months and 5 years. Accordingly, the action must be brought within six months of the date on which the ground of annulment was learned of, that is to say the date on which the spouse regained capacity of discernment, the mistake or deceit was discovered or the effect of the fear ceased, and in any event before five years have elapsed since the marriage. Once these periods have expired, no possibility remains of bringing an annulment action founded on relative nullity.
Who May Bring the Action of Relative Nullity?
In cases of relative nullity the right of action belongs to the spouse who subsequently acquires capacity of discernment and to the spouse who married by mistake, by having been deceived or under duress. In addition, where a person who is a minor or under restricted capacity has married without the consent of their legal representative, the legal representative whose consent was not obtained may also bring an action for the annulment of the marriage.
The Consequences of the Annulment Action
Even where a marriage is vitiated by absolute or relative nullity, it comes to an end only by decision of a court. Until the decision becomes final the marriage is regarded as legally valid and all the legal consequences arising from the union remain in existence. The consequences arising after the annulment decision must be examined separately as regards the children and as regards the spouses.
As Regards the Children
The annulment of the marriage does not affect the legal position of the children. Pursuant to Article 156 of the Turkish Civil Code No. 4721, even where the marriage is regarded as invalid, children born of the annulled marriage are deemed to have been born within marriage. The purpose of the provision is to prevent children from being left without legal protection and to preserve their descent.
Within this framework, even where an annulment decision is given, the following rights of the children remain in existence:
- Right of inheritance: The child is in the same position vis-à-vis the father as a child born within marriage and holds the status of statutory heir of the father.
- Child support: The child has a right to maintenance, as in divorce; the spouse to whom custody is not given is obliged to contribute to the care and education expenses.
- Custody: The question of custody is assessed by the criteria applied in divorce actions. The judge, having regard to the best interests of the child, may give custody to the mother or to the father.
- Descent: The child has descent in the same way as a child born within marriage in relation to the father. There is no need for the father to carry out a separate act of recognition; the registration is made directly in the father’s name.
These provisions have been introduced with a view to preventing children from suffering harm because of the invalidity of their parents’ marriage.
As Regards the Spouses
After the annulment decision the rights and obligations of the spouses differ according to whether or not they were in good faith as to the invalidity. This matter is expressly governed by Article 158 of the Turkish Civil Code No. 4721:
- The spouse in bad faith: A spouse who knew or ought to have known of the invalidity of the marriage cannot benefit from the consequences afforded by the annulment decision. That said, under certain heads such as the liquidation of the matrimonial property regime, rights may also arise for that spouse.
- The spouse in good faith: A spouse who was unaware of the ground of annulment and believed the marriage to be valid retains their personal status as though they had contracted a valid marriage. In that case the provisions on divorce apply by analogy.
The principal consequences produced by the annulment decision as regards the spouses are addressed below.
Liquidation of the matrimonial property regime: The participation in acquired property regime, the statutory matrimonial property regime, is accepted as having been in force between the spouses until the moment of annulment. The court carries out the division by applying the provisions on divorce by analogy.
- Where one of the spouses is in bad faith, the court may, having regard to equity, narrow certain of that spouse’s rights arising from the matrimonial property regime.
- Where both spouses are in good faith, the assets acquired during the marriage are liquidated according to the principles applicable in divorce.
Right to damages: By reason of the annulment decision the spouse in good faith may claim pecuniary and non-pecuniary damages from the spouse who is at fault or in bad faith. The judge may award damages by applying by analogy the provisions on damages relating to divorce actions.
Poverty alimony: Since the provisions on divorce apply by analogy, the spouse in good faith who will fall into poverty after the annulment decision may claim poverty alimony from the other spouse. The amount and the duration of the maintenance are determined by the criteria applied in divorce actions.
Use of the surname: Upon annulment the woman loses the surname she acquired by reason of the marriage and reverts to her maiden surname. As in divorce, however, there is a possibility of applying to the court in order to be able to continue bearing the former husband’s surname. If the court finds that she has a legitimate interest in using that surname, it may order that the surname be retained.
Court with Subject-Matter and Territorial Jurisdiction
In an action for the annulment of a marriage the court with subject-matter jurisdiction is the family court. In places where no family court has been established, jurisdiction belongs to the civil courts of first instance; the civil court of first instance hears such an action sitting as a family court.
As regards territorial jurisdiction, the action may be brought before the family court of the place where the spouses have resided together for the last six months or of the place of residence of one of the spouses. By contrast, actions of absolute nullity brought by the public prosecutor, by a legal representative or by those concerned are heard by the family court of the respondent’s place of residence.
Frequently Asked Questions
If the request for annulment is not upheld, may a divorce be granted in the same action?
This possibility is termed in Turkish law an alternative, that is to say a graduated, action. An alternative action means that the claimant may put forward several requests in a single pleading by placing them in order. Where requests for annulment and for divorce are advanced together, the examination of the subsidiary request is sought in the event that the principal request is dismissed. The judge first reviews whether one of the cases of invalidity listed above is present; if no deficiency in the conditions is found, they order the annulment of the marriage, and since the principal request is upheld there is no need to move to the subsidiary request. If, by contrast, the conclusion is reached that the grounds of invalidity laid down in the statute have not arisen, the request for annulment is dismissed and the court assesses the claimant’s subsidiary request, namely divorce.
What becomes of property acquired during the annulled marriage?
When the court finds that the marriage between the parties is legally invalid, the union is annulled. Even in that case it is possible for the spouses to bring a separate action for the liquidation of the matrimonial property regime in respect of the assets they acquired during the annulled marriage. Unless a different arrangement has been agreed between the spouses, the provisions of the Turkish Civil Code No. 4721 on the participation in acquired property regime find application in annulment actions as well.
May damages be obtained as a result of an action for the annulment of a marriage?
Although the annulment action differs from the ordinary divorce procedure, it is subject to the same principles as regards claims for maintenance and damages. The Turkish Civil Code No. 4721 provides that even where a marriage comes to an end by definitive invalidity the union produces all the consequences of a valid marriage. The judge may accordingly award maintenance and damages, both while the proceedings are pending and when the action is concluded, as in a divorce action. While the proceedings continue, interim maintenance may be sought so that the spouse and the child do not fall into economic hardship; once the action has been concluded, child support may be sought so that the general needs of the children are met and their standard of living does not decline, and poverty alimony so that the spouse does not fall into poverty. In addition, pecuniary and non-pecuniary damages may also be claimed by reference to what occurred within the marriage union. As will be seen, maintenance and damages are not institutions peculiar to divorce actions alone; they arise in the action for the annulment of a marriage as well.
Independent Legal Assessment
Actions for the annulment of a marriage rest in practice on a more technical footing than is supposed. The outcome of the dispute is most often determined not by arguments on the merits but by the correct characterisation of the ground and by the management of time limits. In cases of relative nullity in particular, the date on which the six-month period began to run is grave enough to lead to the dismissal of the action without the merits of the file being examined at all.
The second critical head is the debate as to good faith. All the outcomes the spouses will obtain, from the liquidation of the matrimonial property regime to damages, and from maintenance to the use of the surname, are tied to the criterion of whether they knew of the ground of invalidity. It is therefore important that the evidence capable of proving good faith be gathered before the action is even brought.
In a concrete file we recommend that the following heads be assessed as a matter of priority:
- Correctly characterising from the outset whether the particular case constitutes absolute or relative nullity
- Establishing by documents the moments at which the six-month and five-year periods began to run in cases of relative nullity
- Reviewing separately in whom the capacity to bring the action lies, particularly in the case of marriages that have come to an end
- Gathering the evidence apt to prove good faith before the action is brought
- Deciding whether the request for divorce is to be advanced in the alternative against the possibility that no result is obtained
- Planning, as a matter of procedure, in which file the liquidation of the matrimonial property regime and the claims for maintenance and damages are to be pursued
Independent Legal provides advisory services and conducts litigation throughout disputes concerning the annulment of a marriage, from the characterisation of the ground to the liquidation of the matrimonial property regime.