Istanbul Law Review
Türk Medeni Hukukunda Evliliğin Nisbi Butlanı Sebeplerinden KorkutmaEmre Köroğlu
Evlilik, evlendirme memurunun, evlenecek olan kişilerin her birine birbiriyle evlenmek isteyip istemediklerini sorması üzerine, onların olumlu yönde irade beyanında bulundukları anda meydana gelmektedir. Ancak bir evliliğin geçerli olarak meydana gelmesi için, eşlerden her birinin evlenme yönündeki iradelerinin hiçbir baskı altında kalmadan, özgür bir şekilde oluşması gereklidir. Bazı durumlarda eşlerden biri, diğer eşin veya üçüncü bir kişinin korkutma teşkil eden bir fiiline maruz kalarak istemediği bir evliliği yapmak zorunda kalmış olabilir. Korkutma, iradenin oluşumu aşamasındaki sakatlıklardan biri olup, Kanun koyucu tarafından TMK m 151’de evliliğin nisbi butlanı sebeplerinden biri olarak düzenlenmiştir. İlgili madde gereğince, kendisinin veya yakınlarından birinin hayatı, sağlığı veya namus ve onuruna yönelik pek yakın ve ağır bir tehlike ile korkutularak evlenmeye razı edilen eş, evlenmenin iptalini dava edebilmektedir. Görüldüğü üzere, korkutma altında yapılan evlilik her ne kadar nisbî butlanla sakat bir evlilik olsa da kendiliğinden hükümsüz duruma gelmemektedir. Bu evliliğin hükümsüzlüğünün sağlanması için korkutma teşkil eden fiile maruz kalan korkutulan tarafından nisbî butlan davasının açılması gerekmektedir. Kanun koyucu TMK m 152’de korkutmaya dayalı nisbi butlan davasının açılmasını belirli sürelere tabi tutulmuştur. TMK m 152’ye göre korkutulan eşin iptal davası açma hakkı, korkutmanın etkisinin ortadan kalktığı tarihten başlayarak altı ay ve her hâlde evlenmenin üzerinden beş yıl geçmekle düşmektedir. Mahkeme tarafından evliliğin korkutma sebebiyle iptaline karar verilmesiyle birlikte, evlilik ileriye etkili bir şekilde (ex nunc) sona ermektedir ve evlilik, hâkimin iptal kararına kadar geçerli bir evliliğin tüm sonuçlarını doğurmaktadır (TMK m 156).
Çalışmamızda korkutmanın tanımı, şartları ile sonuçları, İsviçre Hukukundaki son gelişmelere de yer verilerek kapsamlı bir şekilde inceleme konusu yapılmıştır.
Duress as Reason for Relative Nullity of Marriage in Turkish Civil LawEmre Köroğlu
Marriage occurs when a marriage official asks each of the persons to be married whether they want to marry each other and these two persons make a positive declaration of will. However, in order for a marriage to be valid, the desire of each spouse to marry must be formed free of any pressure. In some cases, a spouse may have been forced to enter an unwanted marriage as a result of duress from the other spouse or a third party. Duress is a defect in the formation stage of will and is legally regulated in Art. 151 of the Turkish Civil Code (TCC) as a reason for relative nullity of marriage. TCC Art. 151 states that a spouse who is persuaded to marry through threat of imminent and serious harm to their own or a relative’s life, health, honor, or dignity may file a lawsuit for annulment of the marriage. As is seen, although a marriage made under duress is crippled by relative nullity, it is not automatically invalidated. A lawsuit for relative nullity must be filed by the threatened party to ensure the annulment of the marriage. Legislation subjects the filing of a relative nullity lawsuit based on duress to certain periods as per Art. 152 of the TCC. Accordingly, the threatened spouse’s right to file an annulment case ends after six months, starting from the date the effect of the duress disappears, but in any event within five years of the marriage. Upon a court’s decision to annul a marriage due to duress, the marriage ends proactively (ex nunc), and the marriage bears all the results of a valid marriage up to the judge’s decision (TCC Art 156).
This study comprehensively examines the definition of duress, its conditions, and results by also including the latest developments in Swiss law.
Duress is regulated as a reason for the relative nullity of marriage in Art. 151 of the Turkish Civil Code (TCC). Duress involves a spouse being forced to enter into an unwanted marriage by threat from the other spouse or a third person. Duress is a defect in the formation stage of will.
Duress can also be defined as the deliberate and unlawful provision of a person’s consent to marriage by informing another person that the one whose consent is sought will be subjected to very imminent and severe danger regarding harm to life, health, honor, or dignity of that person or a relative of that person.
The conditions necessary for duress to results in the relative nullity of marriage are regulated in Art. 151 of the TCC as follows.
Firstly, one of the spouses must be under duress. Duress may come from the other spouse or from a third party. In cases where duress occurs from a third party, the other spouse doesn’t need to be aware of the duress.
Secondly, the person who is threatening must have the intent to threaten.
Thirdly, the duress must have been made in regard to the other spouse’s life, health, honor, or dignity or that of a person closely related to this other spouse.
Fourthly, the duress must present an imminent and grave danger to the threatened. When determining whether the duress is serious or not, the subjective state of the spouse who was forced to marry is taken into consideration.
Fifthly, a causal link must be present between the duress and the marriage. Having an ordinary causal link is sufficient here.
Lastly, the duress itself must be unlawful.
If the above conditions are met, the marriage under duress becomes disabled through relative nullity. However, a marriage made under duress being disabled through relative nullity does not automatically invalidate it. A lawsuit for relative nullity must be filed by the threatened party in order to ensure the annulment of the marriage.
The legislation in TCC Art. 152 limits the time for filing a relative nullity lawsuit based on duress, according to which the threatened spouse’s right to file an annulment case ends after six months, starting from the date the effect of the duress disappears, but in any event within five years of the marriage.
The court decision to annul the marriage due to the duress results in the marriage ending proactively (ex nunc), and the marriage bears all the results of a valid marriage up to the time of the judge’s decision (TCC Art. 156).
These spouses may remarry after the existing marriage is annulled by the court. However, the marriage barrier based on in-law kinship still applies to the spouses.
As per the decision to annul the marriage, the other spouse who was in good faith while marrying the threatened spouse retains the personal status he/she has obtained through this marriage.
As a result of the annulment of the marriage, the threatened spouse may demand pecuniary and/or non-pecuniary damages from the threatening spouse or from the spouse who knew or may have known about the third-party duress.
The threatened spouse may demand alimony from the other spouse, regardless of whether or not he/she is the one threatening.
In cases where the marriage is annulled due to duress, the wife, regardless of whether she is the person threatening or being threatened, can ask the court to allow her to retain her husband’s surname.
The threatened spouse’s right to sue for the annulment of the marriage does not pass to the heirs. However, the heirs can continue a lawsuit filed by the threatened party. As a result of the lawsuit, the surviving spouse who was not found to be in good faith at the time of marriage cannot be named a legal heir and loses the rights granted to him/her by the testamentary dispositions. The surviving spouse is not the one acting in good faith when that spouse was the threatening person or when that spouse knew or may have known about the duress from a third party.
Children born out of a marriage receiving an annulment decision from the court due to duress are considered to have been born within the marriage.
After the marriage is annulled due to duress, both the threatened spouse and the other spouse (whether a threatening person or not) have the right to establish a personal relationship with their own children and even take custody of them if conditions are suitable.
The fact that the marriage between the spouses has ended with the annulment decision does not remove their obligation to meet their children’s guardianship costs. In this respect, whether the spouses are the threatening person or the threatened person makes no difference.
Ultimately, individuals’ freedom of will to marry cannot be said to be sufficiently protected by Art. 151 of the TCC, contrary to the purpose of the legislation. In this context, including a provision in the TCC that takes into account all the types of duress affecting the individuals’ will to marry would be appropriate.