© Springer Science+Business Media Dordrecht 2015Macarena Sáez (ed.)Same Sex Couples – Comparative Insights on Marriage and CohabitationIus Gentium: Comparative Perspectives on Law and Justice4210.1007/978-94-017-9774-0_8
8. Legal Status of Same-Sex Couples Within the Framework of Turkish Civil Law
Faculty of Law, Istanbul Kemerburgaz University, Mahmutbey Dilmenler Caddesi, No:26, 34217 Boğcılar, Istanbul, Turkey
Same-sex couples are not formally recognized in Turkey. In the last years, however, visibility of LGBTI individuals has increased. This Chapter is an overview of family law regulations in Turkey, and how they affect same-sex couples. It provides an account of legal spaces that could eventually allow for same-sex couples to start slowly enjoying spaces of legal protection. To a great extent these possibilities stem from the influence of the European Union and its strong stance against discrimination on the basis of sexual orientation and gender identity. This Chapter presents an overview of Family Law in Turkey and it specifically 12 analyzes the marriage contract with the aim of showing spaces for recognition of 13 same-sex couples in general and, eventually, same-sex marriage in particular.
KeywordsSame-sex marriageFamily law in TurkeySame-sex cohabitationLGBTI discriminationSexual orientation
In the last decade, the social visibility of Lesbian, Gay Bisexual, Transgender and Transsexual and Intersex (LGBTI) people in Turkey increased. LGBTI people are still, however, marginalized.1 A large number of Turkish people views homosexuality as an “illness”2 and LGBTI population faces discrimination in many different areas. The lack of provisions protecting people from discrimination on the basis of sexual orientation violates the basic rights and freedoms of LGBTI populations.3
In 2001 Turkey signed Protocol 12 to the European Convention on Human Rights for the Protection of Human Rights and Fundamental Freedoms. The Protocol, however, is not enforced or reflected in local legislation.4 For example, during the Parliamentary discussions in preparation for a new Turkish Constitution, members of Parliament proposed to include a new definition of marriage that would read “all persons have a right to get married and establish a family.” Other members of Parliament opposed to this definition because it could lead to same-sex marriages.5 Another important example is the legal action presented to ban Lambdaİstanbul LGBT Solidarity Association. The trial court held that Turkish society did not approve Lambdaİstanbul LGBT Solidarity Association and that such organization went against the morality of Turkish society.6 Furthermore, the court explained that the association’s activities were a threat to the Turkish Constitution, which protects family and children, and it stipulates the rights and freedoms of the youth.7 The Court of Cassation, however, overturned the trial court decision by stating that everyone had a right to establish an association in accordance with Article 20 of the Universal Declaration of Human Rights, Article 22 of the International Covenant on Civil and Political Rights, and Article 11 of the European Convention on Human Rights.8 The Court of Cassation also stated in its decision that according to Article 10 of the Turkish Constitution everyone was equal before the law regardless of language, religion, ethnical background, gender and political view and all people had a right to establish an association or be part of an association. In addition to the Court of Cassation’s decision in the Lambdaİstanbul case, other courts have recognized that European countries provide legal protection to same-sex couples and have referred to the importance of such protection within the framework of human rights and equality.9
8.2 Framework of Turkish Family Law
Turkish family law only recognizes specific family relations. This means that couples seeking legal protection can only access those relationships recognized by the Turkish Civil Code.10 These are “engagement” and “marriage.” Under Turkish family law, cohabitation does not carry any legal consequences regardless of whether the couple is of different or same-sex.11 The only contract available to couples is marriage, interpreted by courts as the union between a man and a woman. The Turkish Civil Code does not clearly indicate that marriage is only established between a man and a woman,12 Turkish courts, however, have interpreted that the wording of the Turkish Civil Code can only apply to the union between a man and a woman.13 Also, Article 2 of the Marriage Regulation14 describes marriage as “a legal contract concluded between a man and a woman with the intention to establish a family before an authorized marriage officer in the required procedure.” Additionally, Articles 6, 11, 14, and 16 of the Marriage Regulation support Article 2’s narrative. Finally, Turkish jurisprudence strongly supports this definition.15 Furthermore, the presence of one man and one woman is considered an essential element of marriage.16 The lack of this essential element means that the union is nonexistent and carries no legal consequences.17
The Turkish legislator prefers a framework where marriage is the exclusive institution of family formation. Cohabitation does not carry any legal consequences18 and it is not possible to apply the provisions of marriage by analogy.19 Turkish family law, therefore, is not applicable to any living arrangements other than marriage.20 Although cohabitation carries no legal protection, it carries no criminal sanctions either. Same-sex couples, therefore, are free to form de facto unions, just as heterosexual couples are.
8.3 Application of Family Law Provisions
8.3.1 Application of Marriage Regulations to Same-Sex Couples
The legislature’s political choice was to provide different legal status to married and unmarried couples. Accordingly, Turkish law provides married couples with the legal protection of family law while cohabitating couples have no protection at all. The rationale behind this decision is to promote marriage and, therefore, application of marriage regulations by analogy or interpretation to unmarried couples would contradict this purpose. Moreover, application of these provisions to same-sex couples would be even more problematic since the legislator purposely avoided providing legal protection to same-sex couples.
Although Turkish law does not include a concept of family,21 the legal doctrine has defined a family as the community formed by a married couple and its children.22 At the same time, Article 8 of the European Convention on Human Rights does not limit “family life” solely to marriage-based relationships, but it may also encompass other de facto family ties formed outside marriage.23 According to this Convention, therefore, unmarried couples living together could have family ties depending on their personal commitment and seriousness of their relationship.24 Weighing such factors, same-sex couples could have family ties according to European standards. Turkish courts, however, are not willing to apply those standards. In fact, the Court of Cassation decided that an opposite-sex couple living together without being married was against Turkish moral values.25 Moreover, the General Assembly of the Court of Cassation decided that same-sex couples did not have a family but could only be considered living a “mistress life.”26 Based on these decisions, it is not possible to consider same-sex couples as a family unit.
At the same time, there are circumstances in which the term “family member” should apply to opposite and same-sex cohabitating couples in order to provide protection to the parties. For instance, Turkish courts should apply the Law on the Protection of the Family and Prevention of Violence against Woman27 to opposite and same-sex cohabitants.28 Article 1 of the law seeks to protect women, children, family members and victims of stalking. Also, the law establishes procedures to prevent violence. Even though opposite and same-sex cohabitants do not constitute family under Turkish law, the courts should interpret this statute broadly, in order to protect people who live together and share mutual living arrangements. Some lower courts have decided to apply the Law on the Protection of the Family to unmarried opposite-sex couples living together.29 The courts compared opposite-sex couples to a religious matrimony (hereinafter, “Muslim marriage”) which is, in fact, not equal to the officially sanctioned marriage, and does not enjoy any of the rights and obligations under Turkish family law.30 These decisions give ground to an application of the statute to both opposite and same-sex cohabitations.
8.3.2 Application of Engagement Regulations to Same-Sex Couples
An engagement is a mutual promise to marry. Some scholars argue that courts could apply the rules of engagement to opposite-sex couples living together.31 Since the Turkish Civil Code does not define marriage, courts should broadly interpret the promise to marry and view opposite-sex cohabitation as an engagement.32 This interpretation could eventually lead to an inclusion of the rules of engagement to same-sex couples as well. Other scholars, however, argue that a promise to marry is only valid within a systematic interpretation of the Turkish Civil Code, and only valid between a man and a woman.33 As the law does not allow same-sex marriage, same-sex couples’ promises to marry could not constitute engagement. Thus, engagement of same-sex couples would be invalid because it would lack the element of heterosexuality.
Under this interpretation cohabitation of opposite sex couples cannot constitute an engagement either since the intention of the partners is to live together and not to get married. The aim of the engagement provisions is to provide legal consequences for the promise to marry, so that parties take the proposals seriously and execute the preparations to marry with the confidence of a legally binding promise. Therefore, it is not possible to apply the engagement provisions to same-sex couples because the parties lack the intention of getting married.34
According to Article 121 of Turkish Civil Code, the engaged parties have the right to claim non-pecuniary damages from each other in case the engagement is terminated due to fault by one of the parties. Arguably, in cases where one of the cohabitants infringes the personality rights of the other through dissolution of the cohabitation, it is possible for the other party to claim damages based on Article 25 of the Turkish Civil Code, which provides general protection in case of infringement of the personality rights of an individual. In a 2002 case regarding the dissolution of a Muslim marriage after 45 years, the Court of Cassation ruled that in order for the court to award compensation, there had to be a specific offense. One of the spouses must commit a crime against the honor and reputation of the other person or her family or an infringement against personality. Compensation is warranted when dissolution of an engagement or a marriage occurs, a spouse denies paternity, or personal injury or death occurs. Courts, however, have stated that a person intentionally living in cohabitation without marriage may not claim infringement of personality rights.35 Considering this and the approach of the Court of Cassation to same-sex couples, it would be hard to successfully argue that a person could claim compensation based on the general provisions protecting personality rights in case her or his partner of the same sex decided to leave.
With regards to pecuniary damages, the provisions on engagement state that parties can claim damages from each other in case one of them ends the engagement without legal grounds.36 For the same reasons stated above, these provisions would not apply to same-sex couples either.
8.4 Possibility of Application of Contractual Provisions
8.4.1 Validity of the Contract
As observed, Turkish family law does not provide legal protection and rights to same-sex cohabitation. The freedom of contract, however, is one of the basic principles established in the Turkish Code of Obligations. As a result, same-sex couples could arrange their legal relations upon a contractual relationship, such as distribution of property in cases of death or separation. Turkish contract and property laws, therefore, provide a possible alternative for the protection of same-sex cohabitants.37
In fact, same-sex couples that want to share a mutual life can enter into a contractual relationship and can also contract with third parties. A same-sex couple may buy a house or household goods together, open a bank account or celebrate contracts with regards to the distribution of their shared property. There may be, however, problems with the liquidation of assets in case of separation.38 The main issue is whether contracts celebrated by same-sex couples are valid.
Turkish Code of Obligations, in Article 27 states that the subject matter of a legal transaction shall not be impossible or contrary to mandatory rules, public order, moral values and personality rights. In those cases, transactions will be deemed void.39 As mentioned before, in several cases the Court of Cassation has ruled that opposite-sex cohabitation goes against Turkish moral values.40 Legal doctrine criticized these decisions.41 Furthermore, these cohabitations related to Muslim marriages which do not comply with legal regulations of marriage but are nonetheless acceptable unions by Turkish society. Considering these decisions, it is likely that Turkish courts would consider same-sex cohabitations against morality as well. Some legal scholars also claim that same-sex relationships go against moral values and any contracts entered in order to regulate mutual obligations or property would be deemed void.42
Morality, however, is not a univocal concept. Scholars provide different definitions for the concept of morality that would be legally applicable in Turkish law.43 Turkish courts have broadly interpreted the concept of morality in order to provide a common understanding. The notions “morality” and “public order,” however, have vague meanings and courts interpret such notions with the concepts of “legality” and “personality rights” in mind. In other words, the mere fact that a same-sex relation is against an understanding of morality by a group of people is not sufficient to deem the contract between same-sex couples void. The notion “immoral” must come attached to a conduct that can be illegal or that triggers an infringement of personality rights. Courts do not protect same-sex relations but they do not forbid these relations either. Therefore, courts cannot deem the mere existence of same-sex cohabitation as immoral.
In order to be immoral, cohabitation itself should have an illegal purpose or such cohabitation should infringe the personality rights of at least one of the parties. Accordingly, courts should examine each case separately.44 For example, a court may deem a contract “immoral” if its purpose is to impose a sexual conduct on the other party or if made to provide sexual relations in exchange of money. Courts may deem these contracts void. In these cases immorality complements illegality, infringement of personality and free will.45
If the goal of a same-sex couple is to build a life together, a court could not deem it immoral because the goal of the contract would concern the private life of the parties. Turkish law made a policy decision not to regulate same-sex cohabitation. This legal policy choice contradicts the notion that same-sex cohabitation goes against moral values. Furthermore, if courts held that same-sex cohabitation goes against morality, this would punish same-sex cohabitants due to choices that affect their private lives.46 It would actually be an interference of privacy as a societal value. Some scholars argue that in order to end the debate regarding the immorality of same-sex cohabitations, the legislature should grant legal status to these relations under marriage or granting them a status other than marriage.47
8.4.2 Donations Between Same-Sex Cohabitants
A donation has to have a causa donandi, a reason for the donor to give something to another person. The donation cannot have immoral purposes such as providing or maintaining sexual relations with the beneficiary. Such donation would be void. It is not, however, sufficient for the donor to have an immoral motivation, but it is also required that the beneficiary know and accept the motivation of the donation.48 It is not legally possible to deem all cohabitations immoral and to state that all donations made between cohabitants are motivated by immoral purposes. Courts must interpret social morality principles with an understanding that such principles are compatible with the Constitution, human rights, and the basic values of Turkish laws. This interpretation gives a broader scope of action than interpreting morality principles according to society’s general approach to moral values.49 Courts, therefore, could not deem donations between same-sex cohabitants immoral unless it is clear that the donation was made with the direct intention of maintaining sexual relations.50 When the purpose of the donation goes against morality, the donor may not be able to claim the restitution of the donation.51 According to Article 81 of Turkish Code of Obligations, no right to restitution exists for the things given to produce an illegal or immoral outcome. The same Article states that a court may decide to assign those goods to the State Treasury.
Inheritance laws do not provide legal protection to cohabitants. Donations, therefore, could be used by same-sex couples to seek protection in case of death on one of the parties. Donations established to be effective after the death of the donor are governed by inheritance laws. Courts, however, treat these donations as void when they violate statutory entitlements of legal heirs.52 Thus, only individuals without legally mandated heirs could make donations that would replace inheritance regulations. Turkey inheritance law establishes a mandated set of legal heirs who have the right to inherit even against the will of the deceased.53
8.4.3 Labor Relationships Between Same-Sex Couples
Another reason to consider the validity of contracts celebrated between couples of the same sex is the need to protect valid labor relationships. For instance, in a case where a person worked as the secretary and driver of his partner of the same sex, the Court of Cassation discussed whether the parties had created a labor relation between them.54 In accordance with Article 394 of Turkish Code of Obligations, courts consider that parties create an employment contract when an employer accepts the performance of work done in a certain period in his service and under circumstances in which the employee could reasonably expect a salary.55 Accordingly, courts consider the actual status but not the intention of the parties to celebrate an employment contract.56 In case one of the parties worked for the benefit of the other, that party is entitled to claim wages. However, in accordance with Article 147 of the Turkish Code of Obligations, claims for wages are subject to a 5 years statute of limitations.57 At the same time, the parties cannot claim wages for the efforts and work done for the benefit of the other party.58 In the case where one of the parties contributes significantly to the other party’s work, the services may be considered part of a simple partnership. Thus, the law must consider the contribution of one of the parties to the work of the other. If the contribution is small, then the provisions of Article 395 of the Turkish Code of Obligation applies, whereas if the contribution is significant, then the simple partnership provisions apply.59
8.4.4 Simple Partnership
Some scholars consider that Turkish law could accept cohabitation of opposite sex couples as a simple partnership and the economic values that the parties bring to the partnership could be evaluated as contribution.60 The provisions of the simple partnership could also apply to same-sex couples living together.61
Simple partnership is a contractual relationship in which two or more people combine their efforts or resources in order to achieve a common goal. Swiss Federal Courts62 stated that it is possible for people to incorporate a simple partnership even when there is no intention to form one.63 Under this interpretation it would be possible to apply the provisions of simple partnerships to same-sex cohabitations. The most important element for simple partnership is “mutual effort to achieve a common goal.”64 In same-sex cohabitation, the parties actually combine their efforts or resources in order to achieve their common goal to share a mutual life. In a simple partnership parties must show a common effort in order to achieve their common goal and must have a common economic unity. The latter is achieved by contributing capital and having a common budget.65 For example, two students who only share the same house will not constitute a simple partnership. Same-sex cohabitants with a common budget and sharing a life plan would fit into the definition of a simple partnership. The question is, however, if the “common goal” of same-sex cohabitants may be illegal under Turkish Law. In several cases Turkish courts have decided that a same-sex relationship constitutes prostitution when an exchange occurs to further a sexual relationship. Under that interpretation the common goal of the simple partnership would be illegal. Such narrow interpretation, however, does not restrict the possibility of broader ones in which the common goal of supporting each other is analyzed outside the realm of sexual intimacy. Those interpretations would deem the common goal legal.
The second element for the simple partnership is the economic contributions of the parties. According to Article 621 of the Turkish Code of Obligations, each partner must contribute something to the simple partnership. The contribution may be money, claims, other goods or labor. Goods that exist before the incorporation such as a house, a car, household goods and wages are evaluated as contribution. Housework, however, is evaluated as effort. The goods brought to the relationship are contributions and the goods acquired during the course of the relationship are profit. If the relationship can not be registered as a simple partnership it may be difficult to determine the contributions and profits. In order to overcome this evidence issue, courts could use the presumption that all goods in dispute will be treated as profit.
Another issue is whether the provisions of the simple partnership regarding the management, representation and reasons for dissolution apply to same-sex cohabitations.66 In general, these provisions are parallel with the family provisions of the Turkish Civil Code and provide equality among the partners. Analogy treats two different legal concepts in the same manner by using similarities between two situations regarding the protected interests.67 As the protected interest and the concepts of simple partnership and same-sex cohabitation are similar, courts can make analogies between the provisions of these concepts.68
8.5 Other Claims and Ways to Protect Same-Sex Couples
8.5.1 Claim for Compensation for the Loss of Support
According to Article 53 of the Turkish Code of Obligation, in case of a wrongful death, the court may award recovery of financial contributions of the deceased to his or her dependents. Damages arise due to the wrongful death of a person who provides support to others.69 The claims for loss of support are relational loss regulated under Turkish law and accordingly a relationship of dependency or support must exist between the deceased ad the claimant in order to claim damages.70 The relationship of support comes from a person who constantly and regularly takes care of another, economically supports the other person either totally or partially, and/or there is a definite expectation of support.71 The law does not require the existence of a family relationship in order to claim damages for loss of support.72
Although same-sex cohabitation is not treated as family under Turkish law, there is clearly a constant and regular solidarity between the cohabitants. This solidarity falls within the scope of support and therefore, couples should be able to claim damages for loss of support in case of wrongful death of his or her same-sex partner. Just as with other areas, however, courts may deny damages for the loss of support if they consider same-sex cohabitations illegal.73 The counter argument to this interpretation is that even though Turkish law does not accept same-sex cohabitation, these associations are not, per se, against public order. Some scholars claim that opposite sex cohabitations are not considered to be against morality unless one of the parties expects consideration or an impediment for marriage exists between the parties.74 Accordingly, with cohabitants that have mutual cooperation, the partner who maintains and supports the couple should be accepted by courts as the supporting party.75