What is Family?

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The family is the smallest whole in the society, consisting of individuals such as spouses, children, siblings, mother and father, who have marriage and blood ties between them. The family is the smallest unit that forms the basis of the society we live in. The family, which creates the balance in society, is also protected by law.

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What is the Place of the Concept of Family in Our Law?

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Family law, the field of family law that ensures the safe and peaceful preservation of family unity, is extremely important, and the concept of family is regulated in Article 41 of our Constitution as follows; “The family is the foundation of Turkish society and is based on equality between spouses. The state takes the necessary measures and establishes the organization to ensure the peace and welfare of the family, especially the protection of the mother and children, and the teaching and implementation of family planning.”

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Family law is regulated in the second book of our Turkish Civil Code numbered 4721 in the Turkish legal system. family law; Our law is divided into 3 parts. These;

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1. Marriage Law

2. Kinship Law

3. Guardianship Law

 

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What is Family Court?

 

The family court is a special court that deals with cases and matters arising from family law. The Family Court, which was established by the Law No. 4787 on the Establishment, Duties and Proceedings of Family Courts, should be established in sufficient numbers in every jurisdiction as a rule, according to this law.

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However, in jurisdictions where a family court cannot be established, the civil court of first instance conducts proceedings as a family court.

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What are the Purposes and Duties of the Family Court?

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The purpose of the family court; To ensure the protection of families, children and people with disabilities.

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​The duty of the family court is to deal with cases and affairs arising from family law in general, and it is regulated in Article 4 of the Law on the Establishment, Duties and Trial Procedures of Family Courts;

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​Family courts handle the following cases and actions:

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• Lawsuits and works arising from family law in accordance with the Second Book of the Turkish Civil Code dated 22.11.2001 and numbered 4721, excluding the Third Part, and the Law on the Enforcement and Implementation of the Turkish Civil Code dated 3.12.2001 and numbered 4722,

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• Recognition and enforcement of foreign court decisions regarding family law in accordance with the Law on International Private and Procedural Law dated 20.5.1982 and numbered 2675,

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• Other duties assigned by law.”

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To give an example of these;

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• Divorce suit

• property regime case

• custody case

• Alimony case

• Annulment of marriage case

• Lawsuits for pecuniary and non-pecuniary damages filed after divorce

• Abolition of the waiting period for a divorced woman

• Case of placing annotation on family residence or removing annotation

• The case of changing the family surname,

• paternity suit

• The case of denial of paternity

• Adoption and abrogation case

• Protection and removal of children and women

 

Such measures and lawsuits fall under the jurisdiction of the family court.

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​What is Marriage?

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​Marriage, two persons of the opposite sex; It is a family union that is established by coming together in front of the person authorized to marry, that is, the marriage officer, in order to unite their lives in the way that religion, law or society deems appropriate, and express their mutual will.

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What is Marriage Law?

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​Marriage law regulates the legal relations arising from the union of marriage and is arranged in the first part of the family law book and consists of four parts. These;

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1. Marriage (TMK art. 118-160)

2. Divorce (TMK art. 161-184)

3. General Provisions of Marriage (TMK art. 185-201)

4. Property Regime Between Spouses (TMK art. 2020-281)

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All these legal relations and provisions will be discussed in detail in the following articles.

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What is Kinship?

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Kinship refers to the kinship relationship between people and is a legal bond between people based on a natural or legal reason. Kinship exists only in terms of real persons, it is not possible to talk about kinship in terms of legal persons.

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Kinship is regulated as a marriage barrier in Article 129 of our Turkish Civil Code;

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“Marriage is prohibited between the following persons:

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1. Between the upper and lower descendants; between siblings; between uncle, uncle, aunt and aunt and nephews,

2. Even if the marriage that formed the beech kinship has ended, between one of the spouses and the other's descendants or descendants,

3. Between the adopter and the adopted child, or one of them and the other's descendants and spouses.”

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The kinship law includes the legal consequences arising from the kinship relationship and is arranged in the second part of the family law book and consists of two parts. These;

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1. Establishment of lineage (TMK art. 282-363)

2. Family (TMK m. 364-394)

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What is guardianship?

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​Guardianship is the institution that ensures the protection and legal representation of the rights of minors or those with limited legal rights. Persons who are appointed by the court and represent the individuals in question are called guardians.

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Guardianship Law is arranged in the third part of the family law book and consists of three parts. These;

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1. Order of Guardianship (TMK art. 396-437)

2. Execution of guardianship (TMK art. 438-469)

3. Termination of Guardianship (TMK art. 470-494)

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What are the Dominant Principles of Family Law?

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​Continuity Policy:

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The relations that are the subject of our Family Law are permanent relations in terms of their nature. Because; family is also a moral, spiritual and religious-based concept. In fact, the concept of family has a sacred quality in Turkish society as it is in many societies. For this reason, relations subject to family law; It is not short-term, conditional and temporary. Union subject to Family Law; It should be established as a permanent and lifelong relationship.

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Unity Principle:

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In Article 185 of our Turkish Civil Code, "Marriage union is established between spouses by marriage." there is a provision. Based on this article, it is possible to say that the members of the narrow sense family concept do not find a place in family law on their own, each individual is a part of the family and the family is evaluated as a whole. It is also a result of the principle of unity that women and children take the surname of the man.

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Principle of Protection of the Weak:

 

In terms of Turkish Family Law, this principle in our law; children; takes place as protection from their parents. Since the equality of men and women could not be fully ensured in the old Civil Code, it was also possible to protect women, but in the period of the Civil Law No. 4721, this disappeared and equality between men and women was ensured to a large extent in terms of law. The Turkish Civil Code does not only protect children born in wedlock, but also includes protective provisions for stepchildren born out of wedlock.

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The Principle of No Freedom of Regulation:

 

According to this principle; parties cannot arrange a relationship between themselves, outside the scope of the Civil Code. At the same time, the relations in our Turkish Civil Code cannot be changed with a contract between the parties, or a relationship that is not regulated in the law cannot be established by agreement. Because; The provisions regulating relations in our Family Law are mostly mandatory provisions. It is by no means possible to talk about freedom of contract in our family law.

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Principle of Equality Between Spouses:

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Principle of Equality Between Spouses; It is the appearance of the principle of equality between people in the union of marriage. The principle of equality is regulated in Article 10 of our Constitution as follows; “Everyone is equal before the law without any discrimination based on language, race, color, gender, political opinion, philosophical belief, religion, sect and similar reasons. Women and men have equal rights. The state is responsible for ensuring that this equality is realized. Measures to be taken for this purpose cannot be interpreted as contrary to the principle of equality.” In the union of marriage, men and women are considered equal in line with this article.

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State Interference Principle:

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Since the family is one of the building blocks of our society, the relations that are the subject of family law are of great importance in terms of law. In this respect, the state intervenes more in the relations that fall under the scope of family law, compared to other relations.