2023’DEN GÜNÜMÜZE ANAYASA MAHKEMESİ’NİN TÜRK MEDENİ KANUNU’NDA İPTAL ETTİĞİ HÜKÜMLERİN DEĞERLENDİRİLMESİ
Öz
Son yıllarda toplumun hızla gelişen ve değişen ihtiyaçları doğrultusunda Anayasa Mahkemesi tarafından Türk Medeni Kanunu’nun (TMK) aile hukuku hükümlerinden bazıları iptal edilmiştir. İptal edilen hükümlerin yürürlük tarihi Anayasa Mahkemesi tarafından ileri tarihe bırakılmıştır. Yürürlük tarihi dolmasına rağmen kanun koyucu tarafından yeni bir yasal düzenleme yapılmadığı görülmektedir. Bu durumda iptal edilen hükümlerin aile hukukuna yansıması ve iptal sonucu oluşan boşluğun nasıl doldurulacağı üzerinde durulması gerekmektedir. Bilhassa ard arda gelen iptal kararları neticesinde aile hukuku hükümlerinde önemli bir değişim gözlenmektedir. Bu çalışmanın amacı, 2023’den günümüze kadar Anayasa Mahkemesi tarafından iptal edilen aile hukuku hükümlerini ortaya koymak ve iptal kararlarının olası sonuçlarını tartışmaktır. Öncelikle Anayasa Mahkemesi’nin iptal kararları TMK sistematiğine göre belirlenecek, ardından iptalin etkisi incelenecektir.
Anahtar Kelimeler
The Constitutional Court From 2023 to The Present Evaluation of The Annulled Provisions of the Turkish Civil Code
Öz
In Turkish law, the Constitutional Court has cancelled many family law provisions since 2023. Reasons such as changing social needs, social requirements, the need for modern legal regulation and modernisation have been effective in making these decisions. The aim of this study is to examine the provisions of Turkish family law that have been cancelled from 2023 to the present. In our study, the cancelled provisions will be examined in accordance with the systematic of the law, and the current regulation and practice will be discussed about each provision. The regulations in Swiss and German law regarding the cancelled provision will be discussed. Then, the cancellation decision of the Constitutional Court and its justification will be examined, and finally, the cancellation decision will be evaluated and suggestions will be made about the new legal regulation.
Article 166/f.4 of the Turkish Civil Code, which was cancelled by the decision of the Constitutional Court, was as follows ‘In the event that the lawsuit filed for any of the grounds for divorce is dismissed and three years have elapsed from the date of the finalisation of this decision, if the common life cannot be re-established for whatever reason, the marriage union is deemed to be fundamentally shaken and divorce is decided upon the request of one of the spouses.’ In this provision, it is regulated that divorce can be decided upon the request of one of the spouses due to the failure to re-establish a common life (de facto separation). In order for this provision to be applied, the divorce case filed for any reason must have been rejected and although three years have passed since the finalisation of the decision, the common life must not be re-established within this period. In this case, in the divorce case filed by one of the parties, the court decides for divorce regardless of whether the marriage has been shaken from its foundations or not. Although this provision is a frequently used provision in practice, it was criticised in the doctrine due to the length of the waiting period and the condition that the previous lawsuit was rejected. The waiting period in the provision is two years in the Swiss Civil Code and three years in the German Civil Code.
With the decision of the Constitutional Court dated 22.02.2024 and numbered E. 2023/116, K. 2024/56, Article 166/f.4 of the Civil Code was cancelled. The decision was published in the Official Gazette dated 19.04.2024 and numbered 32522. The decision was decided to enter into force nine months after the date of publication in the Official Gazette, i.e. on 19.01.2025. In the justification of the decision, it is stated that divorce cases already take a long time, the three-year waiting period added on top of this is too long and this situation is contrary to the principle of proportionality.
To evaluate the cancellation decision, it is a fact that the three-year waiting period is too long. The period should be shortened by taking the opinions in the doctrine and the Swiss Civil Code as an example. However, a new provision with a shorter duration but with the same content should be introduced instead of this cancelled provision. In other words, in our opinion, the reason for divorce based on de facto separation due to the inability to re-establish a common life must be included in the law. Otherwise, it will be very difficult for the parties to divorce.
Another provision cancelled by the Constitutional Court was Article 187 of the TCC, which reads as follows ‘A woman shall take her husband's surname upon marriage; however, she may also use her previous surname in front of her husband's surname upon a written application to the marriage officer or later to the civil registry office. A woman who has previously used two surnames can benefit from this right only for one surname.’ In Turkish law, the issue of women's surnames has been debated for years.
