Family and Inheritance Law
At Solmaz Law & Consultancy Firm, we also provide legal services to individuals in their requests and lawsuits arising from private law. Our team works to provide the best result to its clients as soon as possible in family law disputes, which require extra sensitivity due to their nature, as in every lawsuit. In the field of family law, our lawyers, who have experience in divorce lawsuits, pecuniary and non-pecuniary compensation claims arising from divorce, alimony claims, status of children and establishing a personal relationship with the child, property division and will take the necessary care to carry out and finalize this process in the most advantageous way for our clients.
Inheritance law is a field that regulates the process of transferring the property, rights and debts of the deceased to his heirs. The testamentary dispositions such as inheritance agreements and wills to be made by the heir before death are subject to official procedures and rigid formal rules. Again, the succession and inheritance procedures to be carried out after the death of the heir require a series of paperwork and bureaucracy. In order to carry out these processes, which may be complex for the heirs, on legal grounds and to obtain results in a short time, it is recommended to seek legal advice. Some of the professional services that our office can offer you in these matters are as follows;
- Uncontested or contested divorce lawsuits
- Property division lawsuits, liquidation of property regime
- Alimony lawsuits (injunction, maintenance and poverty alimony),
- Custody (change and removal of custody) and guardianship lawsuits,
- International child abduction lawsuits (under the relevant Hague Convention to which we are a party)
- Preparation of a will
- Cancellation of the will, will execution lawsuit
- Taking measures for the protection of the child,
- Pecuniary and non-pecuniary compensation lawsuits arising from divorce
- Liquidation of the regime of participation in acquired property, liquidation of property partnership and separation of property regimes
- Spouse’s claim for transfer of extra value
- Divorce lawsuit due to adultery, divorce lawsuit due to abandonment, divorce lawsuit due to the collapse of the marriage union from its foundations (severe incompatibility), divorce lawsuit due to the spouse’s crime or dishonorable conduct, divorce lawsuit due to attempt to life, divorce lawsuit due to very bad or degrading behavior, divorce lawsuit due to the inability to re-establish a common life
- Establishment of a family property partnership
- Appointment of a guardian or trustee
- Paternity action
- Lawsuits related to paternity (denial of paternity, alimony lawsuit due to actual care of the minor)
- Adoption procedures
- Inheritance contract
- Obtaining certificate of inheritance (certificate of inheritance)
- Sharing of inheritance, elimination of partnership (elimination of joint ownership) lawsuit
- Conversion of joint ownership into shared ownership
- Transfer of inheritance share
- Claims arising from testator collusion, title deed cancellation and registration request due to testator collusion
- Filing a lawsuit for the return of the immovable property to the estate in the lawsuit of joint ownership
- The request for equalization of inheritance is the elimination of the imbalance created by the heir among his children
- Equalization lawsuit, elimination of violations of reserved shares,
- Requests for renunciation of inheritance, disinheritance and disinheritance of the heir
- Rejection of inheritance
- Inheritance forfeiture lawsuits
- Inheritance and inheritance transactions
Frequently asked questions within the scope of family law are as follows:
What is a Family Residence?
The family residence is the common residence that the spouses have chosen together and in which they actively live together with their children, if any. Article 194 of our Civil Code does not allow legal transactions related to the family residence to be carried out by one of the spouses without the contribution of the other. In fact, it does not matter whether the family residence is owned by one of the spouses or whether it is provided by one of them through a rental agreement.
If the family residence is an immovable property that one of the spouses acquired before the marriage or acquired through mutual or gratuitous acquisition during the continuation of the marriage, the spouse who is the owner of the residence cannot transfer the residence to others or limit the rights on it without the express consent of the other spouse.
The other spouse who is not the owner of the immovable property dedicated as a family residence has the “right to request the necessary annotation regarding the residence in the land registry”.
What is the property regime?
The management of the properties owned by the spouses, their utilization, disposing on them and the responsibilities of the spouses in this regard, in short, the regulation of the financial relations between the spouses is expressed by the term property regime. Our new civil code has changed the legal property regime and adopted the “regime of participation in acquired property” as the legal property regime instead of separation of property.
What is the distinction between Legal Property Regime and Optional Property Regime?
Some of the procedures related to the management of the property of the spouses, i.e. property regimes, are legal (arising from the law) and some of them are optional (arising from the contract) property regimes. Therefore, the property regimes accepted in the law can be divided into legal property regime and optional property regime.
1. Legal Property Regime
The regime to which the spouses will be subject by law in terms of the management of their property is called the legal property regime, unless they have chosen another property regime stipulated by law by making a property regime agreement between them before or after the marriage contract (marriage ceremony) or by notifying in writing during the marriage application.
The new Civil Code has adopted the regime of participation in acquired property as the legal property regime. According to Article 202 of the Civil Code, “It is essential that the regime of participation in acquired property is applied between the spouses. Spouses may accept one of the other regimes specified in the law with the property regime agreement.”
If the spouses do not exercise their right to choose one of the property regimes stipulated in the law, the “regime of participation in acquired property” will automatically apply to them due to the law, which is called the “legal property regime”.
2. Optional Property Regime
In order to enable the spouses to regulate the financial relations between them as they wish, the legislator has adopted three other optional types of property regimes in addition to the legal property regime. These are separation of property, separation of property with sharing and community of property. Spouses are free to choose one of the property regimes regulated in the law both before and after marriage.
Apart from the legal property regime, the property regime that the spouses may choose and be subject to voluntarily by making a written statement during the marriage application or by making a property regime agreement before or after marriage is called “optional property regime”.
What is the Acquired Property Participation Regime?
The regime of participation in acquired property covers the acquired property and the personal property of each spouse. To these, we can add “shared property” as the third type of property.
Acquired Property: According to Article 219 of the Turkish Civil Code: “Acquired property is the assets that each spouse has acquired by giving the return during the continuation of this property regime.”
In order for an asset or an asset value to be considered as acquired property, the following two conditions must be met together:
- Acquired during the continuation of the property regime
- Acquired in exchange for labor
Personal Property: Some of the goods or assets owned by the spouses are considered personal property due to the law itself, and some of them are considered personal property due to a contract between the spouses. These are;
- Personal property by law: Thegoods that are considered personal property by virtue of the law are as follows (Civil Code article 220):
- An item for the sole personal use of one of the spouses,
- Assets belonging to one of the spouses at the beginning of the property regime or acquired by one of the spouses through inheritance or any other form of gratuitous acquisition,
- Claims for non-pecuniary damages
- Substitutes for personal property.
Contractual personal property: The legislator allows the spouses to accept that the assets that should be included in the acquired property arising from the practice of a profession or the activity of a business will also be considered as personal property. Likewise, spouses may also agree that the income of personal property shall not be included in the acquired property by concluding a property regime agreement between them.
Shared Property: The law obliges the person who claims that a certain property belongs to one of the spouses to prove his/her claim. Property that cannot be proved to belong to one of the spouses is considered to be in the shared ownership of both spouses, i.e. it is the shared property of the spouses.
How does the liquidation of the property regime take place?
When the regime of participation in acquired property ends, the regime is liquidated. At the end of the liquidation process, the spouses’ participation receivables and value increase receivables arise.
1. Recovery of goods and debts
If the regime of participation in acquired property is terminated, each of the spouses shall take back the property kept by the other spouse. In this regime, since each spouse has the right of ownership over the goods and personal property acquired by paying for them, if they are in the possession of the other spouse, he/she may ask him/her to return these goods to him/her. In this regime, since the acquired property of the spouses is not shared between them, i.e. the spouses are not granted real rights at the end of the liquidation, but only a right to claim on the residual value, each spouse is obliged to return the goods that are in his/her possession but owned by the other spouse.
2. Calculation of Spouses’ Shares
The spouses’ personal property and acquired property are separated according to their status at the time of the termination of the property regime and a calculation is made accordingly.
3. The moment to be taken as the basis for determining the value of goods
As a rule, the acquired assets existing at the time of the termination of the property regime are evaluated based on the moment of liquidation, i.e. the moment of the termination of the property regime. In other words, these properties are taken into account with their value at the time of liquidation. There are also exceptional lawsuits.
4. Liquidation of Shared Ownership
Article 222/II of the Civil Code contains an ordinary presumption that goods that cannot be proved to belong to one of the spouses are in their joint ownership.
The second paragraph of Article 226 of the Law states that “if there is property subject to shared ownership at the time of liquidation, one of the spouses may benefit from other opportunities stipulated in the law, as well as request that the property be given to him/her without division by proving that he/she has a superior benefit and paying the share of the other”.
What is Divorce and What are the Causes?
Divorce is one of the reasons that terminate (annul) marriage, such as death, absence, change of sex and nullity. Divorce can be defined as “the termination of the marriage union by a judge’s decision as a result of a lawsuit filed by one spouse based on one of the reasons stipulated in the law while the spouses are still alive”.
Grounds for divorce are divided into special grounds for divorce and general grounds for divorce. For example; reasons based on certain facts such as adultery, attempt on life, bad or degrading behavior, committing a crime and leading a life without dignity, abandonment, and mental illness; are special grounds for divorce.
Breaking of the unity of marriage and the agreement of the spouses and actual separation regulated in the same article are the general grounds for divorce. In another respect, the grounds for divorce are divided into two as “absolute grounds for divorce” and “relative grounds for divorce”.
In absolute grounds for divorce, if the fact or event specified in the law as a reason for divorce is proved, the judge may decide for divorce without having to investigate whether this has made the common life unbearable for the other spouse. The reasons regulated in the Civil Code such as “adultery”, “attempt on life”, “very bad or degrading behavior”, “abandonment”, “agreement of the spouses” and “active separation” (inability to re-establish a common life) or reasons based on the event are absolute grounds for divorce.
In the relative grounds for divorce, it is not sufficient for the divorce that the fact or event stipulated in the law as a reason for divorce has occurred and proven. The judge will also have to investigate whether this situation, which has occurred and proven, has made the common life unbearable for the other spouse and decide for divorce only if this is the lawsuit. The grounds for divorce based on “committing a crime” and (or) leading a life without dignity”, “mental illness” and “shattering the unity of marriage” in the Civil Code are relative grounds for divorce.
Divorce Lawsuit – Separation
According to Article 167 of the Civil Code, “The spouse who has the right to file for divorce may ask for divorce or separation. If a divorce lawsuit is filed, the judge may rule for separation instead of divorce if there is a possibility of reconciliation between the spouses.
Whereas divorce ends the marriage definitively, separation temporarily suspends the common life for the duration of the separation; each spouse may have a separate place of residence. Both spouses retain the personal status of “married”. All the obligations imposed on the spouses by the marriage union, except for cohabitation, especially the obligation to show mutual fidelity, remain the same. The Civil Code is based on permanent separation and limits it from one year to three years. The judge freely determines the duration of the separation within these limits based on his/her discretion.
What are Temporary Measures in a Divorce Lawsuit?
Pursuant to Article 169 of the Turkish Civil Code, “When a divorce or separation lawsuit is filed, the judge shall ex officio (spontaneously) take the temporary measures necessary during the continuation of the lawsuit, especially regarding the accommodation of the spouses, subsistence, management of the property of the spouses and the care and protection of the children. The judge hearing the divorce lawsuit is obliged to take the necessary temporary measures, i.e. temporary protective measures”. These measures are as follows;
1. Housing for Spouses
Regarding the housing of the spouses, the judge determines who will live in the family residence (common residence). The judge decides freely on this measure as with other measures.
2. Maintenance and Subsistence of Spouses (Injuction Alimony)
If one of the spouses, who is living separately at the time of filing for divorce or separation, is unable to provide for his/her maintenance and subsistence with his/her own financial means, it is required by Article 169 of the Civil Code that the other spouse, who is able to contribute to the maintenance and subsistence of this spouse, i.e. to pay an alimony to be determined by the judge. Here, the temporary measure to be taken by the judge in this regard is to ensure the contribution of the other spouse to the care and maintenance of the spouse with limited financial means.
This alimony to be paid by one spouse to the other as long as the lawsuit continues is called precautionary alimony in practice. Precautionary alimony starts from the date the divorce or separation lawsuit is filed and continues until the day the divorce judgment is finalized.
3. Care and protection of children (alimony)
Alimony to be paid by the spouse who has not been left with the children in order to contribute to the maintenance of the children is referred to in practice as subsidiary alimony.
4. Measures for the management of spouses’ property
Article 169 of the Turkish Civil Code obliges the judge to take measures regarding the management of the property of the spouses.
The measures under Article 169 of the Civil Code are not limited in number. The judge is also authorized to take other measures. Examples of other measures that can be taken by the judge include measures related to children’s property, giving instructions to the debtors of the spouses and limiting the power of disposition.
All of the above-mentioned measures are of a temporary nature and are applicable as long as the divorce or separation proceedings continue.
What are the Legal Consequences of Divorce?
The term “legal consequences of divorce” refers to the consequences of a judge’s decision to grant a divorce. Some of the consequences of divorce for the spouses are personal and some are financial in nature.
Personal Consequences: With the finalization of the divorce decree, a number of personal (non-financial) consequences arise for the spouses. These are;
1. Termination of the Marriage Union
The foremost consequence of a divorce decree is that the union of marriage between the spouses, which was born with the marriage ceremony, is legally terminated as soon as the decree becomes final.
2. Possibility of Remarriage
With the finalization of the divorce decree, the marriage union has ended, and in this lawsuit, the divorced spouses have the opportunity to make a new marriage contract immediately with their ex-wife or with another woman, and the woman has the opportunity to make a new marriage contract immediately with her divorced spouse or with another man only after the expiration of the legal waiting period of three hundred days (period of delay).
3. Change or Protection of Personal Circumstances
Indeed, while some of the personal statuses acquired by marriage change (e.g. the spouses cease to be “married” and become “divorced”, the wife loses her husband’s surname and reassumes the surname she had before marriage, etc.), others remain unchanged and the spouses retain them (e.g. puberty, citizenship and kinship by marriage).
4. Waiting Period for a Woman
A divorced woman cannot remarry until three hundred days have elapsed from the date of the finalization of the divorce decree. This period, which applies only to the woman, is called the period of delay or the legal waiting period. However, if the divorced woman gives birth before the expiration of this period, she no longer has to wait for the three hundred days to pass; the period ends with the birth.
On the other hand, the court may lift this deadline if it is found that the woman is not pregnant from her previous marriage or if the spouses whose marriage has ended wish to remarry each other.
5. Commencement of the Statute of Limitations
The statute of limitations on the receivables of the spouses from each other, which has been suspended as long as the marriage continues, resumes automatically upon the finalization of the divorce decree.
6. Loss of Inheritance Status
The divorced spouses cannot be each other’s legal heirs in this capacity and they lose the rights provided to them by the testamentary dispositions made before the divorce, unless otherwise understood from the disposition. (Art. 181/I of the Civil Code) The loss of the heirship titles of the divorced spouses can be seen as a financial consequence of the divorce in a way.
Divorce has a number of “financial” consequences for the spouses.
- Nullity of Death Related Dispositions
“Divorced spouses lose the rights provided to them by the testamentary dispositions made before the divorce, unless it is understood otherwise from the disposition” (Civil Code Art. 181/I)
The testamentary dispositions referred to in this article are the testamentary dispositions made between the spouses in a period before the divorce (for example, if a certain property was left in a will).
- Liquidation of Property Regime
In the liquidation of the property regime, the provisions regarding the regime to which the spouses are bound shall apply.
- Pecuniary Compensation
Our Civil Code recognizes the right of the party who is not at fault in the divorce or who is less at fault to claim financial compensation in order to partially compensate the damages suffered due to the divorce. In order for one of the divorcing parties to claim financial compensation from the other, the following conditions must be met.
- The party seeking compensation must be at fault or less culpable.
- The defendant must be at fault.
- An existing or expected interest of the party seeking compensation must have been damaged by the divorce.
- Non-pecuniary Compensation
According to Article 174/II of the Turkish Civil Code, “the party whose right of personality has been attacked due to the events leading to the divorce may request the other party who is at fault to pay an appropriate amount of money as non-pecuniary compensation. Conditions are as follows;
- The defendant must be at fault.
- The personal right of the party seeking compensation must have been damaged.
- Poverty Alimony
Pursuant to Article 175 of the Turkish Civil Code, “The party who will fall into poverty due to divorce may request alimony from the other party for an indefinite period of time in proportion to his financial capacity for his subsistence, provided that his fault is not more severe. The fault of the alimony obligor is not required”
It is intended to protect the party who will fall into poverty after the divorce. Poverty alimony, in a way, means the continuation of the mutual duty of care and maintenance as long as the marriage union continues. Conditions;
- One of the parties must make a request.
- Thefault of the requesting party must not be more serious.
- Therequesting party must be in danger of falling into poverty due to divorce.
- Alimony should not be proportionate to the financial capacity of the other party.
What is Denial of Paternity?
Since the “presumption of paternity” accepted under Article 285 of the Turkish Civil Code is an ordinary presumption, it can be rebutted by proving otherwise. This can only be possible through a lawsuit. Here, the rebuttal of the presumption of paternity is called the denial of paternity, and the lawsuit that enables this is called the lawsuit for the denial of paternity.
What are the Lawsuits of Denial of Paternity?
The conditions of the lawsuit for the denial of paternity are different depending on whether the child was conceived during marriage or before marriage.
Conception of the Child in the Womb within Marriage: According to Article 287 of the Turkish Civil Code, “if the child was conceived during marriage, the plaintiff must prove that the husband is not the father”
A child born after the expiry of this period of one hundred and eighty days from the date of the marriage ceremony is deemed to have been conceived during the marriage. In order to rebut the presumption of paternity, the plaintiff must prove that the husband is not the father, and that there is no possibility of the husband being by this husband, i.e. actual impossibility.
If the child was conceived before marriage or during separation: According to Article 288/I of the Turkish Civil Code, if the child was conceived before marriage or during separation, the plaintiff is not required to bring any other evidence.
In this lawsuit, the only thing that the husband who wants to disprove the presumption of paternity should do in this lawsuit is to “file a lawsuit for denial of paternity” in order to state that the child is not his. He does not need to prove that the child is not his.
What is Denial of Paternity Lawsuit and Who Has the Right to File a Lawsuit?
The rebuttal of the presumption of paternity recognized by Article 285 of the Civil Code can only be possible by filing a “lawsuit for denial of paternity”.
The plaintiff in this lawsuit: the right to file a lawsuit for the denial of paternity is granted not only to the husband, but also to the child, other interested parties and the person claiming to be the father.
1) Husband: Although the right to file a lawsuit for the denial of paternity is granted to others other than the husband, the husband is the main plaintiff.
2) Other Interested Persons: In cases where the husband dies before the expiry of the time limit for filing a lawsuit, or is declared absent, or permanently loses the power of discernment, the right to file a lawsuit is granted only to “the husband’s descendants, mother and father”, not to all those who are heirs together with the child or those who are excluded from the inheritance due to the child. On the other hand, the person claiming to be the father has been added to those who can file a lawsuit. These persons will be able to file a lawsuit for the denial of paternity within one year from the date they learn of the birth and the death of the husband, his permanent loss of the power of discernment or the decision of absenteeism.
3) The child: Our Civil Code recognizes the right of the child to file a lawsuit for denial of paternity. Of course, the use of this right granted to the minor child can be exercised by a trustee to be appointed to the child.
The trustee to be appointed to the minor child may file a lawsuit for denial of paternity within one year from the date of notification of the appointment decision and in any lawsuit within five years following the birth of the child.
The defendant in this lawsuit;
1-Mother and Child: The defendant in the action for denial of paternity brought by the husband and other interested parties is the mother and child. As stated in the Civil Code, “This lawsuit is filed against the mother and child” (Turkish Civil Code- Art. 286/I c.2)
2-Mother and Husband: The lawsuit for denial of paternity to be filed by the child is filed against the mother and husband.
What is Recognition?
Recognition is the declaration by the natural or genetic father that a child is his, to the authorities specified in the law, in the manner required by law. In other words, “recognition is the adoption of a child out of wedlock by the father in accordance with the form and procedure written in the Turkish Civil Code.
The substantive requirements are different for the “recognizing” and the “child to be recognized”.
- Fatherhood of the Recognizer: The only requirement regarding the recognizer is that the recognizer must be the natural father of the child. For this reason, the right of recognition is only granted to the father.
- No paternity relation with another man: The only condition for the child to be recognized is that the child must not be related to another man.
Recognition is a legal procedure that connects a child born out of wedlock to the father through paternity. Therefore, if the child has a paternity relationship with another man due to a paternity judgment rendered as a result of a paternity suit, recognition of this child is not possible; for a possible and valid recognition, this existing paternity relationship must first be eliminated.
A child out of wedlock can be recognized before he/she is born (as a fetus) or after he/she reaches puberty or even after death.
Formal Conditions: Recognition is made by the father’s written application to the registrar or the court or by a declaration in an official deed or will.
What is a Paternity Lawsuit?
It is introduced that the possibility of judicial determination of the paternity of natural fathers who do not voluntarily recognize their child born out of wedlock. A paternity action, in the words of the law, is an action to determine the natural and genetic father of a child born out of wedlock or a “paternity judgment” rendered by a court as a result of such an action.
The subject of the lawsuit is the determination of the paternity between the child and the father by the court according to Article 301 of the Civil Code.
Who are the parties to a Paternity Lawsuit?
The right to file a lawsuit for paternity is granted to the mother and the child. The mother and child may file the paternity lawsuit separately or together.
A paternity action is brought against the father and his heirs.
What is Adoption?
Adoption is one of the sources of paternity, i.e. one of the ways of establishing paternity, just like marriage, recognition and paternity judgment. However, the paternity relationship established between the adopter and the adopted (adopted) as a result of adoption is based on the fact of adoption between the parties, not on the “kinship relation” like the paternity that occurs spontaneously at birth. For this reason, the paternity resulting from adoption is called artificial paternity.
What is guardianship?
We call this institution guardianship, which is intended to protect and represent minors who are not under guardianship on the one hand, and adults who are incapable of managing themselves and their property for various reasons on the other.
What are the Types of Guardianship?
There are two main types of guardianship, which is a protection institution in terms of its nature and purpose. These are “public guardianship” or “general guardianship” and “family guardianship” or “private guardianship”.
Public Guardianship: In terms of its function, guardianship is a public institution. The duty and authority to appoint, control and supervise the guardian belongs to the courts, which are state organs.
Family Guardianship The family plays the main role here. The role of the state remains secondary. Procedures such as the appointment of the guardian, the management of the guardianship and the authorization of the guardian belong to the “family council” consisting of relatives, not to the court.
Article 398 of the Turkish Civil Code regulates special guardianship. Accordingly, guardianship may exceptionally be granted to a family if the interests of the person under guardianship justify it, especially if it is necessary to maintain a business, a partnership or similar affairs.
What are the guardianship bodies?
Guardianship bodies consist of guardianship offices, guardians and trustees. When it comes to guardianship bodies, on the one hand, the real persons who carry out the guardianship duty, and on the other hand, the authorities that perform management and supervision duties are understood.
Guardianship authorities are the official organs of public guardianship. They consist of the guardianship authority and the supervisory authority.
Guardians and trustees are appointed by the guardianship authority and the guardianship is carried out by them.
*** Guardian; It is a guardianship body appointed by the guardianship authority to take care of the minor or restricted under guardianship, to protect all interests related to their assets and to represent them in legal proceedings.
*** Trustee; A trustee is a guardianship body appointed by the guardianship authority to perform certain tasks or manage assets.
What is the Conditions Requiring Guardianship?
One of the conditions that require being placed under guardianship and thus protected and protected is “minority” and the other is “restriction”.
Minority: Minors are under the custody of their parents until the day they become adults, whether by attaining the age of eighteen, the age of puberty, or by becoming an adult or by marriage. In this respect, there is no need to place minors under guardianship for their protection and care. The obligation to be placed under guardianship only comes into question if the minor children are not under guardianship.
In the lawsuit of a minor who is not under guardianship, this minor will need to be placed under guardianship. What is meant by placing minors under guardianship is the appointment of a guardian by the guardianship authority.
Juridical disability: Restriction (interdiction) is the partial limitation of the capacity to act of persons who are adults but who need to be protected and protected for one of the reasons specified in the law by a court decision. In other words, adults who are unable to look after their own interests due to the reasons listed in the Civil Code, which are limited in number (restriction), are restricted for the purpose of protection; in this lawsuit, a guardian is appointed to them or if their parents are alive, they are placed under their custody.
Restriction limits the capacity to act of a person with full capacity, i.e. it makes him/her incapacitated, but does not render him/her incapacitated. This is because the reason for full incapacity to act is that the person does not have the power of appeal (power of discernment). Such a person is already fully incapacitated before he is restricted; otherwise he does not become fully incapacitated by restriction. In the lawsuit of incapacitated persons, restriction provides to be subject to the provisions of guardianship.
A person for whom a restriction order has been issued is called restricted.
What are the Grounds for Juridical disability?
The reasons for juridical disability are limited in number in the Civil Code. These are:
Mental Illness or Mental Weakness: According to Article 405 of the Civil Code, “every adult who is incapable of functioning due to mental illness or mental weakness, or who requires constant assistance for his protection and care, or who endangers the safety of others, is restricted”.
In order for persons who are mentally ill or mentally weak to be restricted; they must be incapable of managing their own affairs or be in need of constant assistance for their protection and care, or “endanger the safety of others”. Unless one of these alternative conditions is present, there can be no restriction. The existence of one of these conditions is sufficient for the restriction of a mentally ill or mentally weak person.
Extravagance, Alcohol or Drug Addiction, Bad Lifestyle, Bad Management: Our Civil Code regulates four different reasons for restriction together in Article 406. Pursuant to the aforementioned article, “any adult who, due to his/her extravagance, addiction to alcohol or drugs, bad lifestyle or mismanagement of his/her assets, causes the danger of plunging himself/herself and his/her family into hardship or poverty and therefore is in need of constant protection and care or threatens the safety of others, shall be restricted. ”
In order for a person to be restricted for one of the reasons listed in the article, it is also necessary that “he/she is in danger of plunging himself/herself or his/her family into hardship and poverty and is therefore in need of constant protection and care” or “he/she threatens the safety of others”.
Extravagance (wastefulness): refers to spending lavishly and thoughtlessly without any benefit that cannot be reconciled with income and earnings. This extravagance must have been going on for a long time.
Alcohol addiction (drunkenness): refers to an excessive fondness for alcoholic beverages, a passion for drinking. The restriction will not apply to a person who drinks normally from time to time, but to a person who drinks constantly and has developed an addiction to alcohol.
Drug addiction: refers to passion for using recreational drugs or sniffing paint thinner, which has recently become common among orphaned street children, and an inability to live without heroin, cocaine, cannabis and similar white poisons.
A bad lifestyle: refers to “continuous behavior that is contrary to public non-pecuniaryity and incompatible with the social order, and that constitutes a serious departure from the obligatory and generally accepted principles of life. ” In shorter terms, a bad lifestyle is “leading an ugly, imnon-pecuniary life.”
Mismanagement, on the other hand, refers to “the mismanagement of one’s assets or the lack of interest in one’s financial affairs. Poor management or indifference is often caused by a lack of intelligence or logic.” In another definition, mismanagement is “lack of management, i.e. incompetence in the administration (management) of assets.
Restrictive Penalty: refers to being sentenced to a sentence of imprisonment for one year or more is also a reason for restriction. According to Article 407 of the Turkish Civil Code, “every adult who is sentenced to a sentence of one year or more binding on his/her freedom shall be restricted. ”
Restriction on Request: Although there is no reason for restriction, our Civil Code has kept the way open for some adults to be restricted voluntarily.
According to Article 408 of the Turkish Civil Code, “Any adult who proves that he/she is unable to manage his/her affairs properly due to old age, disability, inexperience or severe illness may request his/her restriction”
Pursuant to Article 408 of the Turkish Civil Code, in order for a restriction decision to be taken, the person who is subject to restriction must request this, in other words, must make a request for restriction. In addition to being an adult, the person making the request must also have the power of discernment.
What is trusteeship?
Like the guardian, the trustee is one of the guardianship organs. However, the function of trusteeship is different from guardianship. Indeed, while the guardian is appointed to take care of the person under guardianship, to manage his/her assets and to represent him/her in legal transactions, the trustee is appointed only to perform certain tasks or to manage his/her assets.
The circumstances requiring the appointment of a trustee are clearly defined in the Civil Code. In this respect, the limits of the duty and authority of the trustee shall be determined according to the work for which the trustee is appointed.
Representation Trusteeship: If the trustee is appointed to carry out a certain business of a person, in other words, to represent the real or legal person to whom the trustee is appointed in a certain business, we call this “representative trusteeship”.
The situations listed in Article 426 of the Turkish Civil Code in three subparagraphs are as follows;
- If an adult person is not in a position to carry out an urgent matter on his/her own or to appoint a representative due to illness, presence in another place or similar reasons,
- If the interest of the legal representative conflicts with the interest of the minor or restricted person,
- If the legal representative is prevented from fulfilling his/her duties.
Representative trusteeship is not only applicable for the lawsuits listed above. A representative trustee is appointed to represent in many lawsuits such as denial of paternity, paternity lawsuit, etc. The representative trustee performs the work assigned to him/her by following the instructions of the guardianship authority exactly.
Management Trusteeship: If the trustee is appointed to take the necessary measures for the properties that are not managed by anyone, that is, unmanaged, we call this as management trusteeship. Article 427 of the Civil Code specifies the circumstances that require the appointment of a management trustee;
- If a person cannot be found for a long time and his place of residence is unknown
- Although there is no sufficient reason for guardianship, if a person lacks the power to manage his/her assets on his/her own or to appoint a representative for this purpose,
- If the rights of inheritance in a will are not yet clear or if the interests of the fetus so require,
- If a legal entity is deprived of the necessary organs and cannot be managed in any other way,
- If there is no way to manage and spend money and other aid collected from the public for a charitable or other cause of general benefit.
The administration trustee may perform the actions necessary for the management and protection of the property, i.e. ordinary actions.
Optional Trusteeship: In the event that there are reasons for restriction upon request, a trustee may be appointed upon the request of the adult person about whom these reasons are in question.