In Islamic law, dower is a certain property or money that the husband gives or promises to give to the woman during or after the religious contract of marriage or upon its termination. Dower is not seen as a condition of marriage but as a result of it, and in this respect it differs from a sales contract. Unlike bride price, dower is not a precondition for marriage and is given to the woman herself as a result of marriage, not to her family like bride price. For this reason, it is accepted in Turkish law that dower contracts are not contrary to law, morality and personal rights as a rule and can be validly established.[1]

The repealed Civil Code No. 743, which entered into force on October 4, 1926, does not include any regulation regarding the dowry, and the Turkish Civil Code No. 4721, which entered into force on January 1, 2002 and is still in force, does not contain any provision regarding the dowry. However, the tradition of concluding dowry contracts in society and in practice causes disputes regarding the dowry to be reflected in the courts.

It should be noted immediately that the dowry received in advance during the marriage contract (the dowry muaccel) is accepted as a donation in cash in the doctrine. However, the legal nature of the dowry mueccel, which is stipulated to be paid in the event of divorce or death in the doctrine, is debatable.

‘‘The Grand General Assembly for the Unification of Jurisprudence of the Court of Cassation, in its Decision No. 30, Case No. 14, dated 02.12.1959; The Board has decided that the receivables arising from the dowry agreements concluded in the old law period can be claimed by accepting that the dowry agreements concluded in the old law period constitute a debt against the husband and an acquired claim in favor of the woman. The Board has defined the dowry as a dowry claim whose payment is postponed until the divorce or the death of one of the parties at the latest and has decided that the old Civil Code does not prohibit one of the spouses from giving or promising to give something to the other during the contract of marriage, therefore such agreements have no relation with public order. According to the decision, the fact that the payment of the dowry is tied to the man divorcing the woman or to the death of one of the parties should not be considered as a delaying condition for the occurrence of a suspicious event in the future, but as a term. According to the Board, the payment of the dowry even in the event of the death of one of the parties should be seen as evidence that this should be accepted as a term. For these reasons, the Board has ruled that the dowry cannot be considered as a measure to prevent divorce or as a compensation for divorce.[2]

Court of Cassation 3rd Civil Chamber Decision No. 2016/21864 and Decision No. 2018/9144;

‘‘Mehr is the gift of a certain property, money or something of economic value by the husband to the woman at the time of the marriage contract or during its continuation and sometimes upon its termination. The promise of donation by a third person other than the husband is also valid.

The court ruled that the case be dismissed considering that there is no practice in the Konya region of writing gold in the mehr certificate to be given to the bride in the event of divorce, other than the gold worn at the wedding, the 150 grams of gold mentioned in the mehr certificate is also considered as the gold worn at the wedding for this reason, and the plaintiff later took back the gold worn at the wedding from the money changer given for safekeeping.

However; in the mehr certificate drawn up between the parties, it was clearly promised to pay 150 grams of gold in the event of divorce.

In that case, while the court should have given a decision by accepting that the defendants are also liable for the 150 grams of gold promised in the promissory note, the decision to be given in writing with an unreliable reason was not deemed correct and required reversal.’’[3]

As can be understood from the decisions in question, since the Turkish Civil Code does not prohibit the giving of property or money to one of the spouses during the marriage contract, or promising to give it and postponing it for a while, in other words, mehri mueccel, the Court of Cassation defines mehri mueccel as a promise of donation for the future (until the moment the marriage ends with divorce or death) and ties its validity to the condition of being in ordinary writing.

Court of Cassation 1st Civil Chamber, Decision No. 2012/16654 and Decision No. 2013/3539;

‘‘The Civil Code does not prohibit the giving of property or money to one of the spouses during the marriage contract, or promising to give it and postponing it for a while. Therefore, mehr established according to the old provisions cannot be accepted as a legal relationship prohibited by the Civil Code. (Justification of the Decision No. 14/30 dated 2.12.1959 for the Unification of Jurisprudence). Mehr contracts are valid today. (Example: Decision of the Second Civil Chamber of the Court of Cassation dated 25.10.1965, numbered 4557/5028)

The dowry is a promise of donation for the future. The promise of donation of a third person other than the husband is also valid. However, this situation is not the incurring of a debt for the benefit of a third person as stated in Article 110 of the Code of Obligations (BK) (Article 128 of the Turkish Code of Obligations (TBK)), but the promise of donation as stated in Article 238 of the Code of Obligations (Article 288 of the TCC). The validity of the promise of donation depends on the condition of being in writing. In fact, the registry record (ownership) of the real estate has also been transferred to the defendant. (B.K. Art. 238/1 (TBK Art. 288/1)). (4.HD. 18.2.1985 – 1984/9153 E, 1985/1223 K. YKD. 1985 Issue Sh. 802). In this case, when the claim and the facts related to it are evaluated together within the framework of the principles mentioned, it is certain that the mentioned fact will be valued. (BK art. 238/End (TBK art. 288/End))

As for the concrete case, the deceased assigned the immovable property in question to the defendant on the day of her marriage. The witness H.. K.. reported by the plaintiff and the witness Y.. T.. reported by the defendant stated that “the immovable property was given to the defendant as a dowry during the marriage”. When the concrete case is evaluated together with the above principles, it is concluded that the deceased gave the immovable property in question as a wedding gift, not for the purpose of stealing property from her other heirs.

In such a case, it is not correct to have given a written decision when the case should have been dismissed.’’[4]

[1] Türkmen, A. (2020). YARGITAY’IN BAĞIŞLAMA YAKLAŞIMI ÇERÇEVESİNDE MEHİR VE MEHRİN GERİ ALINMASI. Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, 22(2), 544.

[2] The Grand General Assembly for the Unification of Jurisprudence of the Court of Cassation, in its Decision No. 30, Case No. 14, dated 02.12.1959.; Türkmen, A. (2020). YARGITAY’IN BAĞIŞLAMA YAKLAŞIMI ÇERÇEVESİNDE MEHİR VE MEHRİN GERİ ALINMASI. Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, 22(2), 550-551.

[3] Court of Cassation 3rd Civil Chamber Decision No. 2016/21864 and Decision No. 2018/9144.

[4] Court of Cassation 1st Civil Chamber, Decision No. 2012/16654 and Decision No. 2013/3539.