Paternity in Turkish Law under New Turkish Constitution Court Decision
In this article I tried to explained the new development in Turkish Law upon Turkish Constitution Court Decision related to rejection of 1 year statue of limitation for paternity suits in Turkish Civil Code.
Creation of Parent between Child Relation can be only possible :
1. Biological Relationship
Biological Relationship: It is so obvious to determine the relation between the child and the mother. Accordingly, the fact of the birth will determine the mother. The parent-child relationship is formed between child and mother on the birth of the child. It is formed between child and father by virtue of the latter being married to the mother, by recognition or by court declaration.
From husband aspect; Where a child is born in wedlock, the husband is deemed to be the
Father. If the husband dies, he is deemed to be the father provided the child is born within 300 days of his death or, if born thereafter, if it is shown that the child was conceived before the husbands death. If the husband has been declared presumed dead, he is deemed to have been the father provided the child is born within 300 days of the life-threatening event or the last sign of life.
A child who was born outside of marriage because of a defect in the maritial status of the parents may be legitized subsequently. One of the methods of such a correction is the marriage of the parents after the birt of acknowledgement (consent) of the father and mother. Certain amnesty laws in Turkey made the correction of the status of children possible in the past. These laws were expecialy enacted to legitimize the status of 10,000 children who were born of imam marriages.
There are two ways to establish relationship with father. Acknowledgment, fathers application to the court as wel as to the birth registration officer. This application can be challanged by mother or third person who has interest in that relation (such as inheritors). Prior to Turkish Constitution Courts decision, there was one year limitation to challange to this application. One year limitation is found against fundemental individual rights by Turkish Constitution Court.
Another menas of establishing the affiliation of a child to the natural father is getting a court decision (babaliga hüküm) In order to establish the blood relation between the father and the child, scientific tests are being used, but there is also a strong presumption that the child is from that man who had sexual relations with the mother between 300 and 180 days prior to birth (C.C., Article 302,I). This suit may primarily be brought by the child and mother. As mentioned Within one year after the birth limitaion is annuled by Constitution Court. Accordingly, a person who suffers previously because of that limitation is able to open a new case against father to establish paternity relation. (21.7.2012 gün ve 28360 sayili Resmi Gazetede yayimlanan 15.3.2012 gün ve 2011/116 E. 2012/39 K.)
Gökhan Cindemir , Attorney At Law
After he completed his high school degree in Turkey, he went to Belgium with AFSintercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a masters degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He is specialized in all matters concerning International Private Law, European Law, Family Law, Employement Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.
ABOUT THE AUTHOR: Attorney Gokhan Cindemir
He graduated from Anatolian High School of Karadeniz Eregli, after his graduation he studied in Belgium with AFS intercultural exchange program. He obtained his law license degree from Marmara University of Law Faculty. During his university education, he participated in Philip C. Jessup International Law Moot Court Competition on behalf of the Marmara University. After his admission to Istanbul Bar Association in 2009, he obtained master degree (LL.M) from Gent University / Belgium in the field of European and Comparative law. His master research was about Freedom of Establishment In Relation With Turkish rep. and EEC in the frame of Ankara Agreement. He is specialized in International Private Law, European Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicitor, barrister.
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