WUNRN
TURKEY – CONSTITUTIONAL COURT RULES THAT CIVIL MARRIAGE
IS NO LONGER A LEGAL REQUIREMENT FOR
RELIGIOUSLY MARRIED CITIZENS – SERIOUS CONCERNS FOR LEGAL
PROTECTION OF MARRIED TURKISH WOMEN
Bride Mutlu and groom Ihsan Baran pose for a
photo in front of the New Mosque at Eminonu Square, Istanbul, September 2014
REUTERS/Murad Sezer
By Riada Ašimoviæ Akyol - June 1, 2015
Turkey’s
Constitutional Court announced May 29 that civil marriage is no longer
a legal requirement for religiously married citizens, a decision
that will have serious social implications. Many critics, especially women,
fret that the ruling will pave the way for more violations of women's and
children’s rights.
The court based its decision on a case
from 2014, when a criminal court in the Turkish province of Erzurum appealed a
case to the Constitutional Court involving a religiously married
couple without a civil marriage and the imam who carried out the
ceremony.
Prior to this latest
decision, Paragraph 5 of Article 230 of the Turkish Criminal
Code dictated a sentence of two to six months in prison for individuals
who lived together after a religious wedding without a civil marriage. In the
same article, Paragraph 6 also gave two to six months' imprisonment to an
individual (typically an imam) who carried out a religious wedding ceremony
without verifying a civil marriage with official documents.
But while last week’s decision annuls
the above paragraphs by a majority 12-4 vote, the Constitutional
Court had unanimously ruled the opposite in a 1999 case appealed by
the Bursa Criminal Court. At the time, the court confirmed that according to
the Turkish Criminal Code, religiously married couples that lived together were
committing a crime, but individuals who lived together without any religious
ceremony were not. The court then explained its decision on the basis
of upholding the Turkish Civil Code and on the state’s responsibility to
protect women and children, as described in Article 41 of the Turkish Constitution.
Now the 1999 decision has been
reversed. From a liberal point of view, the court’s ruling may be interpreted
as a positive one in terms of enhancing people’s freedom to choose the way
they want to live. It recalls another decision from January 2014, when a
court set a truly progressive precedent: Any married woman
may continue to use her maiden surname by appealing
to a court.
However, worries about the consequences of the court’s latest decision spurred a
chain of strong reactions from human rights activists from academia,
nongovernmental organizations and female political leaders from both the
ruling party and the opposition. Notably, Deputy Parliament Speaker Aysenur
Bahcekapili of the ruling Justice and Development Party (AKP) stated
her concerns for increased risks of polygamy and inheritance
or alimony problems for children. Main opposition Republican People’s
Party deputy Candan Yuceer reminded listeners that in Turkey, at
least one in three women
were married while underage and pointed out that the
court’s decision legalized child marriage in a way, leaving women and
children with no rights in the event of divorce or a spouse’s
death. Nationalist People’s Party deputy Ruhsar Demirel conveyed similar
concerns. The Federation of Turkish Women's
Associations announced that it would take the case to the European Court of Human Rights,
the rulings of which are binding for Turkey. The federation pointed out
an ECHR ruling on a case from 2010, when a woman named Serife Yigit
received no inheritance rights to her deceased husband's pension and insurance
because they had only been religiously married. The number of similar cases
will only increase, the federation warned.
Yet not everyone opposes the court’s
decision. Mustafa Sentop, deputy chairman of the AKP, stated his
approval: “There is no punishment for those who are not married and living
together, and there is punishment for those who have a religious marriage.
Such logic is unacceptable. This decision is for one’s own conscience. The
topic of child brides and second wives are
separate issues.” On a similar note, Naci Bostanci, the head of
the AKP’s parliamentary bloc, stated that no law
should contradict social realities. He sees no danger
of women losing their rights because of this decision.
In fact, Bostanci seems to ignore certain
social realities, with catastrophic consequences. Turkey is infamous for its
high rate of child brides and the
court’s decision increases the likelihood of women and girls finding
themselves in such situations with no hope for redress. Marrying underage
girls may become even more internalized within certain communities, especially
in Turkey’s rural areas. Unfortunately, this latest decision now puts any
achievements in the arena of child brides at very high risk.
Family and Social Policies Minister Aysenur
Islam is very familiar with these problems. She stated that that her ministry
cannot see as favorable any decision that could lead to more child
marriages or removes legal regulations. Islam also announced new measures by
her ministry to further prevent and discourage such practices.
Not surprisingly, the
extreme polarization of Turkey inevitably made this decision yet
another point of conflict between the more religious and secular layers of
Turkish society. Former Constitutional Court General Secretary Bulent
Serim stated that after Turkey’s constitutional referendum in 2010,
the court’s decisions have shown the court's definition of secularism
has became equal to the AKP’s definition of secularism, which he sees as a
threat to the republic’s values.
To shed some light, it is worthwhile to
look back at the trajectory of state decisions on the matter of marriage
throughout Turkey’s history. Renowned Turkish journalist Taha
Akyol clarified for Al-Monitor that during Ottoman times, matters
of marriage and birth were registered in the “Turkish Judge
Records.” Sultan Suleiman the Magnificent, also known as the Lawgiver,
made a state document a precondition for marriage. It was not a legal or
religious condition, but a necessary document for resolving legal disputes. In
1881, Sultan Abdulhamid II took an important step by declaring that after a
religious wedding is performed, official registration had to follow within
15 days for both Muslims and non-Muslims.
The first true reform in the family law
domain was made in 1917 with the Family Law Edict. Among many other provisions,
it stipulated that men who were not yet 18 and women who were not yet 17 had to
get special permission from a court to marry. No such protective measure
for minors had existed before. Another very important step for protecting women
was a limitation on polygamy and a provision according to which a
woman could request monogamy as a condition for marriage. In cases of extreme
incompatibility, the new law also recognized a woman’s right to demand a
divorce. But this law ended up being abandoned after many disputes.
Minorities that wanted to protect their communal autonomy requested that
the British occupation forces halt its enforcement. In 1926, Turkey
abolished Ottoman laws that incorporated Sharia and started enforcing the
Swiss civil code.
Simply put, while the Constitutional Court’s
latest judgment is legally valid, in a sense it reverses the state’s control
over the institution of marriage, altering not just a republican but also a
late Ottoman tradition. And while it may sound liberal on paper, it may
not be liberating in practice. It is perhaps telling that the court’s
verdict was brought about by a group of decision-makers that did not include a
single woman, whereas millions of Turkish women need the state’s
protection against the patriarchal customs in their society.