Turkish Civil Code

Samim Unan

1926
Turkish Civil Code was taken from Switzerland in
1926.
Why the Swiss Code?
Switzerland was one of the countries with which
Turkey (Ottoman Empire) was never in war..
The Swiss Code was simple (compared to BGB
and Code Napolon (French Civil Code)
It was thought that Turkish people would
understand and apply the Swiss Civil Code
easily and better than another foreign Code

1926
Besides the young Republic was in
need of completing the law reforms
as quickly as possible.
To translate and put into force the
BGB and the French Civil Code would
take more time and would
necessitate more efforts.

1926
Explanatory reasoning:
Due to continuous social and economic
relations a civilized part of the mankind has
become a large family.
The idea that Swiss Civil Code would not satisfy
the needs of the Turkish nation must be
rejected. Switzerland contains people from
German, French and Italian origin. A Code
which is successfully applied in such a
diversified society would also be suitable to
Turkey.

1926
Christian minorities in Turkey:
Greeks, Armenians
They thought also that the Swiss Civil
Code would suffice to their needs.
So the Swiss Code led Turkey to have
a unified legal system.

2002
In 2002 the Turkish Civil Code was
revised.
Although a new Code was enacted,
this is rather a revision and not a
reform.
The translation errors are corrected,
the language was simplified and
some new choices were made.

What is new? Introductory

rules
In the Introductory rules (Einleitung) some minor changes.
Art. 5 Turkish CC
General provisions of the Civil Code together with the
General Provisions of the Code of Obligations shall apply
mutatis mutandis to all private law relations
SchZG Art.7
Die allgemeinen Bestimmungen des Obligationenrechtes
ber die Entstehung, Erfllung und Aufhebung der
Vertrge finden auch Anwendung auf andere
zivilrechtliche Verhltnisse.

What is new?- Persons

Art. 40 Turkish CC
Any person may request from the Court that
his/her gender (sex) be altered. The Court
authorizes the alteration of the gender under the
following conditions:
The relevant person is at least 18 years old
Is not married
Proves by a medical report from a hospital that
he/she is of transsexual character
The change of the sex is necessary for his/her mental health
He/she is permanently disabled in his/her capability of
fertility

What is new?- Real persons

Art 40 Turkish CC (continued)
The personal status registry will be
altered upon presentation of a
medical report stating that the
relevant person has passed the
(successful?) surgical intervention
aimed at changing the gender.

What is new? Moral persons

The legal entities (moral persons): New rules
about associations (in order to be in line with the
developments in that area).
1982 when the Turkish army intervened, one of
the invoices was sent to associations which were
believed to have encouraged the clashes and
fights between the two main camps of that
period (left/socialists + communists and
right/mainly conservative nationalists)
Other invoices were sent to political parties, labor
organizations (shut down) and universities.

What is new?- Moral Persons

A special law about associations was
enacted right after the 1982 military
coup.
This law provided a heavy state
control over the associations.
The strict and reactionary solutions
were gradually abandoned.

What is new? Family Law- Marriage

The main concern was the equality
between wife and husband.
The age for marriage is now the same for
women and men (at least 17 years old = in
the course of the 18th year).
Mental illness is not anymore an absolute
obstacle to marriage. If an official report
determines that the mental illness should
not have a preventive effect, the marriage
will then be possible.

What is new? Family Law- Marriage

The marriage ceremony must take place at the
official marriage house before the mayor or his
representative with the presence of two adults
having the capacity of discernment.
The mayor must ask the woman and the man
separately whether he/she desires the marriage. The
marriage is legally completed when both the man
and the woman expressed their consent.
The mayor declares thereafter that the marriage is
duly accomplished (declaratory closing).
The accomplishment of a religious marital ceremony
would not give rise to a valid marriage.

What is new?- Family law- Divorce

Although the view was expressed during
the drafting of the new CC that a single
cause for divorce (namely the collapse
of the union) would be sufficient, the
ancient system was finally maintained.
Debate especially about the adultery
(whether this should be kept as a
separate cause of divorce).

What is new?- Family lawDivorce

If during the legal proceedings for
divorce the claimant dies, his/her
heirs may pursue the divorce
request.
The defendant party shall be
deprived of the right of successions if
the court determines that he/she is
at fault (upon the death, the
proceedings would be converted to
obtain a declaratory judgment about

What is new? Family Law- General

Provisions concerning the marriage
The new provisions are aimed at ensuring
the equality of man and woman
Choice of the familial residence shifted
from the husbands choice to a common
choice.
The administration of the marriage with
common decision.
Equal sharing of the common expenses
(however each will participate to the extent
of his/her economic situation).

What is new? Family Law- General

Provisions concerning the marriage
The woman is entitled to keep also
her family name before the marriage
(solution adopted a few years before
the CC is maintained).
Man and woman can equally
represent the marriage union.
Woman entirely free in the choice of
her professional activity

What is new? Family Law- General

Provisions concerning the marriage
Legal transactions in respect of the familial
residence (termination of the hire contract, transfer
of the property; to give a charge) the consent of the
other must be obtained.
The man/woman who is not the owner of the familial
residence is entitled to request that the relevant
annotations be made to the registry of real estate.
If the familial residence is hired by one the spouses,
the other spouse may by unilateral declaration
become a party to the hire contract.

What is new? Family Law- Marital

property regime
The legal marital property regime is
the participation to the acquired
property
(Errungenschaftsbeteiligung)
This new regime replaced the
separation of property that was the
legal regime.

Successions
Generally in line with the SchwZG.

Property law
The joint property is regulated taking
into account the Swiss reform of
1965.