Article 132 of the Turkish Civil Code does not specify a waiting period for men upon marriage dissolution, but for women, there is a provision stipulating that marriage is not possible until 300 days have passed since the marriage ended. According to this provision, if a marriage has ended, a woman cannot marry until 300 days have passed since the marriage ended. It should be noted that the waiting period is designed to determine the lineage of a child born to a divorced woman who is pregnant. More specifically, if the woman gives birth within 300 days of the marriage dissolution, the paternal lineage of the child is established with the ex-spouse.
This period, referred to as the waiting period or iddat period, is as follows: If the woman gives birth, if it is determined that she is not pregnant from her previous marriage, if the spouses whose marriage has ended wish to remarry each other, or if the woman wishes to marry someone else, the waiting period can be lifted by court order after she submits a medical report confirming that she is not pregnant upon application to the court.
It should be noted that certain conditions must be met for a lawsuit to be filed to lift the waiting period. The first of these conditions is that the divorce decree must be final. Second, the woman must submit a medical report to the court confirming that she is not pregnant. Finally, the lawsuit must be filed in the Family Court in the woman’s place of residence. As can be seen, under Turkish law, if a marriage ends, a woman can marry another man within the 300-day waiting period only if she applies to the court and has the waiting period lifted. Indeed, the Constitutional Court rejected the request to annul Article 132 of the Turkish Civil Code, which stipulates a 300-day waiting period for women, on the grounds that “the fact that the waiting period applies only to women undermines the principle of equality and unnecessarily restricts women’s right to a private life and the right to a family.” Thus, this provision in the Turkish Civil Code will remain in effect, and if a woman wishes to marry another man within 300 days of the marriage’s dissolution, she will be required to request the court to abolish the waiting period.
We would like to emphasize that, in an era of highly advanced medical science, establishing lineage has become so easy, the 300-day waiting period stipulated for women by Article 132 of the Turkish Civil Code undermines the principle of equality and unnecessarily restricts women’s right to a private life and the right to a family. Furthermore, the law’s requirement for a court order to lift the waiting period exacerbates the workload on Family Courts and delays the implementation of justice. For all these reasons, the provision regarding the 300-day waiting period for women upon marriage dissolution should be repealed. Therefore, it should be legally possible for women to remarry after the marriage dissolution by obtaining a medical report confirming that they are not pregnant, without the need for a court order.
Court of Cassation 17th Civil Chamber, Merits No: 2014/11748, Decision No: 2014/10954;
“Family Courts are responsible for handling cases such as the denial of lineage (286 et seq. of the TMK), paternity, recognition, and cancellation of recognition, as limited by Articles 282 et seq. of the TMK. In the present case, the lawsuit requested the correction of …’s birth registration record, alleging that …’s son from an unofficial partnership, …, was registered in the civil registry during the waiting period after their divorce, and that he was registered in the name of his ex-wife, while his father was actually …. If the lawsuit were accepted, the defendant’s father’s name would be changed, and therefore, a lineage relationship with his father would be established in the civil registry. Therefore, the case is a lineage case. Cases related to lineage law are among those listed in Article 4 of Law No. 4787 on the duties and trial procedures of Family Courts. This case, which concerns the establishment of lineage as regulated in Articles 282 et seq. of the TMK, should be heard and concluded in the Family Court.”[2]
Court of Cassation 1st Civil Chamber, Merits No: 2014/18118, Decision No: 2016/6605;
“The defendant argued for dismissal of the case by stating that they were unable to officially marry the plaintiff because the waiting period had not been lifted. They had begun living together. The plaintiff had transferred the immovable property in question by offering it as collateral. He had promised to marry her if she returned the property. He signed the settlement agreement under duress. The marriage ceremony took place the same day. He refused to accept the settlement agreement signed under duress.
Based on the content of the file, the evidence collected, the legal and judicial justification on which the judgment was based, the absence of any error in the assessment of the evidence, and particularly considering the failure to substantiate the defense that the settlement agreement, dated 09/11/2012 and numbered 16060 of the Biga 1st Notary Public’s Office, which was the basis of the judgment, was concluded under duress. Therefore, the defendant’s appeal is not justified.”[3]
Court of Cassation 18th Civil Chamber, Merits No: 2011/9116, Decision No: 2011/12615;
“From the photocopy of the decision numbered 1998/328 Docket-232 of the Havran Civil Court of Peace dated 27.11.1998, which the Civil Registry Office appealed and attached to the appeal petition, it is understood that the waiting period of …, who divorced from …, was decided to be shortened, and in the justification part of the decision, it was stated in the report numbered 398 of the Edremit State Hospital Chief Physician’s Office dated 27.11.1998 that … was not pregnant, that there were 3 months and 12 days between the date of the report and the corrected date of birth of …, and that this period does not allow the birth of a child biologically; therefore, the court will also examine this file regarding the waiting period and investigate whether …, whose age is requested to be corrected in the lawsuit, was born before the divorce in order to clarify the situation, and an evaluation will be made on whether the Public Prosecutor’s Office should issue an additional lawsuit regarding the correction of Hüseyin’s age when necessary, and the records will be reviewed. While a decision that does not contradict the law should be made, it was not deemed appropriate to correct the date of birth as 09.03.1999.”[4]
[1] In this study, the following academic article was used: Erbaydar, N. P., & Odabaşı, A. B. (2018). Medeni Kanunun Bekleme Süresi İddet Müddeti İle İlgili 132. Maddesinin Kadın Hakları Ve Modern Tıptaki Gelişmeler Işığında Değerlendirilmesi. Fe Dergi, 10(1), 111-119.
[2] Court of Cassation 17th Civil Chamber, Merits No: 2014/11748, Decision No: 2014/10954.
[3] Court of Cassation 1st Civil Chamber, Merits No: 2014/18118, Decision No: 2016/6605.
[4] Court of Cassation 18th Civil Chamber, Merits No: 2011/9116, Decision No: 2011/12615.