Family law, regulated between Articles 118 and 201 of the Turkish Civil Code No. 4721, is applicable to individuals who have established a marital bond through a civil marriage. However, due to the social structure, there are also persons who live together for a long time with a religious marriage (imam nikahı). Although those living in this manner cannot benefit from rights such as jewelry (ziynet) or material/moral damages under family law, they may assert these rights before the Civil Courts of First Instance (asliye hukuk mahkemeleri).
The parties fulfill local traditions for marriage and even marry with a wedding ceremony but do not perform a civil marriage. In this case, the marital status of the parties remains “single.” Considering the traditional structure of our society and the social environment in which the parties live, the reality emerges that the parties living a husband-and-wife life with the belief that a civil marriage will be performed will result in being labeled as “widowed” in society upon separation, which will make it difficult to enter into a new marriage and may be used against them in future marriages. For this reason, it is accepted that the parties suffer damage and feel distress and sorrow; therefore, an appropriate amount of moral damages is awarded for the purpose of restoring the parties’ spiritual balance, providing emotional satisfaction, and deterring the tortfeasor from engaging in such an act again.
Indeed, it is accepted in Court of Cassation decisions that those married by religious marriage may claim their jewelry, that their rights to material and moral damages must be compensated, and even in the event of the death of one of the parties, the other may request compensation for loss of support (destekten yoksun kalma tazminatı) where necessary. The difference here is that the alimony claim and other rights arising from family law, which are requested from the Family Court and granted to a spouse, are not recognized for the religiously married spouse. At the same time, for these compensations, the parties must apply to the Civil Court of First Instance, which is the court of general jurisdiction, rather than the Family Court.
The precedent-setting decisions of the Court of Cassation regarding the subject are as follows:
T.C. COURT OF CASSATION 4TH CIVIL CHAMBER
Date: 06.06.2016 Basis: 2016/170 Decision: 2016/7430
1-) The lawsuit concerns the request for the return of jewelry and moral damages. The local court decided to dismiss the lawsuit, and the judgment was appealed by the plaintiff.
The plaintiff stated that they married the defendant unofficially, had a wedding, that the defendant deceived them with a promise of marriage, that the defendant began living with another woman, that their psychology was damaged due to what happened, and further stated that they could not take their gold and dowry items while leaving the house, and requested the return of jewelry and dowry items and compensation for the moral damage suffered.
According to the statements and documents available in the file, it is understood that while the plaintiff was leaving the house where they lived together with the defendant without a civil marriage, they had a certain amount of jewelry on them, that the defendant’s family wanted to take these but the plaintiff did not allow them, and there were rednesses on the plaintiff’s arm due to force; however, there was no statement regarding the amount and type of jewelry the plaintiff had on them while leaving the house, nor was there an explanation in the lawsuit petition regarding the total amount of gold given at the wedding and the amount of gold on the plaintiff while leaving the house.
While the court should have reached a decision by having the plaintiff explain the gold given at the wedding and the gold they had while leaving the house, and by asking and having the witnesses clarify the amount of gold the plaintiff had when leaving the house, the decision to reject the requests for the return of gold based on an incomplete examination and written justification was contrary to procedure and law and required a reversal.
2-) As for the plaintiff’s appeal objections regarding the rejection of the request for moral damages;
It is understood that the parties fulfilled local traditions to marry, married with a wedding, only the civil marriage was not performed, and both the plaintiff and the defendant are recorded as single.
Considering the traditional structure of our society and the social environment in which the parties live; it is an inevitable fact that the plaintiff living a husband-and-wife life with the defendant with the belief that a civil marriage would be performed will make it difficult for the plaintiff to enter into a new marriage due to being labeled as “widowed” in society, and the existence of such a situation may be used against them in future marriages. It should also be remembered that for the defendant, who shares the same social environment, to act more sensitively by considering the situation the plaintiff would fall into, is an expected and required model of behavior.
When all these facts are evaluated together, it must be accepted that the plaintiff was deceived by the defendant with a promise of marriage and suffered both physical and psychological damage under its influence and felt distress and sorrow; and it is necessary to award an appropriate amount of moral damages for the purpose of restoring the plaintiff’s moral balance disturbed by the unlawful act, providing emotional satisfaction, and deterring the tortfeasor from engaging in such an act again.
T.C. COURT OF CASSATION 17TH CIVIL CHAMBER
Date: 25.11.2015 Basis: 2014/4811 Decision: 2015/12693
The counsel for the plaintiffs filed a lawsuit stating that in the accident occurring as a result of the collision between the pickup truck driven by non-party M.A. (operated by the defendant company) and the motorcycle driven and operated by non-party F.Ö., the religiously married spouse of the plaintiff, D.Ö., who was a passenger on the motorcycle, passed away; that the defendant vehicle driver was at fault in the accident, the deceased passenger was not at fault, and the minor G. was born on 20.06.2010 shortly after the accident and was born fatherless; and requested, without prejudice to rights regarding excess claims, the collection of 2,500.00 TL each for loss of support compensation for the religiously married spouse H. and daughter G., and 25,000.00 TL moral damages for the religiously married spouse H. and 20,000.00 TL for the minor G. from the defendant together with legal interest; during the trial, the plaintiff’s counsel amended the material compensation claim to a total of 145,346.26 TL.
The defendant’s counsel defended the dismissal of the lawsuit, stating that a religiously married spouse has no right to claim material compensation and that the moral damages claims were exorbitant.
According to the evidence collected and the entire scope of the file, the court decided on the partial acceptance of the material compensation claim and the collection of 80,000.00 TL for the plaintiff religiously married spouse Hülya and 45,200.10 TL for the plaintiff minor G. as compensation for loss of support from the defendant; and the partial acceptance of the moral damages claim…
T.C. COURT OF CASSATION 4TH CIVIL CHAMBER
Date: 14.04.2016 Basis: 2015/6000 Decision: 2016/5100
The plaintiff stated that they began living together with the defendant on 08.06.2009 with a religious marriage, a child was born on 23.06.2010 and recognized by the defendant, they did not have a harmonious union, they came to Istanbul from Iğdır to marry the defendant by disrupting their existing order, the defendant deceived and stalled them with a promise of civil marriage, applied all kinds of pressure and violence, kicked them out of the house, and they had to go to their sister’s house with the child, and requested that the defendant be held liable for moral damages stating that their personal rights were attacked.
The local court decided to dismiss the lawsuit on the grounds that the allegations of being deceived with a promise of civil marriage and the attack on personal rights could not be proven.
According to the scope of the file, it is established that after the death of his wife on 15.03.2009, the defendant was left alone with three young children; upon going to his hometown Iğdır due to his father’s illness, he decided to marry the plaintiff upon his father’s recommendation, asked for the plaintiff from her family, and with the family’s approval, a henna night and religious marriage were performed in Iğdır on 08.06.2009; thereafter the defendant took the plaintiff to Istanbul where he resided, they lived together with the defendant and his family in Istanbul for approximately two years, a child was born on 23.06.2010 and registered through recognition by the defendant, but no civil marriage was performed during this period, and as a result, the plaintiff left the defendant and began living at her sister’s house.
According to the documents in the file, it is understood that the parties fulfilled local traditions to marry, married with a wedding, only the civil marriage was not performed, and both the plaintiff and the defendant are recorded as single.
Considering the traditional structure of our society and the social environment in which the parties live; it is an inevitable fact that the plaintiff living a husband-and-wife life with the defendant for two years with the belief that a civil marriage would be performed—despite the plaintiff coming from Iğdır to Istanbul with the belief that they would marry because of the promise of civil marriage—and the failure to perform the civil marriage for two years, the necessity of living in her sister’s house with her child, and carrying the “widowed” stigma in society will make it difficult for the plaintiff to enter into a new marriage and may be used against her in future marriages. It should also be remembered that for the defendant, who shares the same social environment, to act more sensitively by considering the situation the plaintiff would fall into, is an expected and required model of behavior.
When all these facts are evaluated together, it must be accepted that the plaintiff was deceived by the defendant with a promise of marriage and suffered both physical and psychological damage and felt distress and sorrow; and it is necessary to award an appropriate amount of moral damages.
Since the rejection of the request by the local court instead of awarding an appropriate amount of moral damages in favor of the plaintiff was not in accordance with procedure and law, the judgment required a reversal.