Family and Inheritance Law

In family files the legal question and the human question sit inside one another. A good result here often does not mean bringing the harshest claim; it means separating correctly what belongs in a courtroom from what belongs at a table. In inheritance files the dispute usually grows out of a transfer made long before the death.

Divorce Preparation of the protocol for an uncontested divorce, contested divorce proceedings, judicial separation, annulment of a marriage. For an uncontested divorce to be accepted the marriage must have lasted at least one year, the spouses must apply together or one must accept the other's claim, and the judge must hear both parties in person. If custody, maintenance, compensation and the division of property are not settled in full in the protocol, the judge will not approve it.

Grounds for a contested divorce Irretrievable breakdown of the marriage union is the ground relied on most often. Adultery, attempt on life, gravely degrading treatment, commission of a crime and leading a dishonourable life, desertion and mental illness are listed separately in the Civil Code. Where a claim rests on one of these specific grounds, proving fault is enough; under the general ground it must be shown that shared life has become intolerable.

Consequences of divorce Custody and arrangements for contact, maintenance for the child (iştirak nafakası) and for a spouse left in need (yoksulluk nafakası), interim maintenance while proceedings run, pecuniary and non-pecuniary compensation, claims over gold and jewellery given at the wedding, annotation of the family home on the land register. In custody the measure is not what the parents ask for but the best interests of the child; a child old enough to form a view is heard with a specialist present.

Matrimonial property regime Liquidation of the regime of participation in acquired property, participation claims and the added-value share, claims that an asset is personal property, separation-of-property agreements. Liquidation is a separate case from the divorce and, as a rule, is not decided before the divorce judgment becomes final. For property acquired during the marriage, what matters is not whose name stands on the register but which funds paid for it.

Inheritance and collusive transfers by the deceased Obtaining and annulment of a certificate of inheritance, disclaimer of inheritance, determination and division of the estate, drawing up a will, action for abatement (tenkis), and cancellation of title deed and registration on the ground of a collusive transfer by the deceased (muris muvazaası). Where a person, meaning to keep assets away from an heir, recorded in the land registry as a sale what was in truth a gift, any heir may argue that the transaction is void. The gap between the stated price and the real value, the buyer's ability to pay, and whether the deceased had any need to sell are weighed together.

Frequently asked questions

How long does a divorce case take? An uncontested divorce is usually concluded in a single hearing; further time is needed for the judgment to be written and to become final. In a contested divorce the length depends on the number of witnesses, expert examinations, whether a preliminary issue has to be resolved elsewhere, and the court's caseload. For that reason no period can be stated in advance.

Is maintenance for a spouse in need open-ended? Maintenance awarded to a spouse who will fall into need because of the divorce, and who is not the more culpable party, is framed in the Civil Code without a time limit. It may still be lifted if the recipient remarries, lives as though married, or is no longer in need. A change in either party's income can also support a claim to increase or reduce the amount.

Who is given custody? The law contains no rule in favour of the mother or the father; the measure is the best interests of the child. The court weighs the child's age, habits and schooling along with the living conditions of each parent. For young children the need for the mother's care is taken into account. Contact with the parent who does not have custody is arranged separately.

How long is there to disclaim an inheritance? For statutory heirs the period is three months from the date they learn of the death and of their status as heirs. It is a forfeiture period (peremptory time limit): once it passes, the inheritance counts as accepted together with its debts. Where the deceased was plainly insolvent at the moment of death the inheritance is deemed disclaimed by operation of law, and a separate declaratory action may be brought to establish this.

I believe assets were kept out of the estate. What can I do? There are two separate routes and their conditions differ. If the transaction looks like a sale but was in truth a gift, an action for cancellation of title deed and registration based on a collusive transfer by the deceased is brought; that action is not tied to any time limit. If the transaction was a genuine gift and it encroaches on the reserved share, an action for abatement comes into play, and abatement is subject to short forfeiture periods.

Who owns the gold given at a wedding? In practice, gifts of gold and jewellery are as a rule treated as belonging to the wife, regardless of whom they were pinned on; pieces clearly intended for the groom fall outside this. Where it is claimed that the jewellery was sold off or never returned, the burden of proof rests on the person making the claim, so wedding footage, photographs and witness evidence carry weight.

Time limits and procedures

• Adultery, attempt on life, gravely degrading treatment: six months from learning of it, and in any event five years. A spouse who has forgiven cannot bring the claim.
• Divorce on the ground of desertion: the separation must have lasted the period set in the law, followed by a formal warning that goes unanswered.
• Liquidation of the matrimonial property regime: ten years from the divorce judgment becoming final.
• Disclaimer of inheritance: three months from learning of it. Abatement (tenkis): one year from learning of it, and in any event ten years.
• Collusive transfer by the deceased: subject to neither a forfeiture period nor a statute of limitations.
• Competent court: the family court for divorce, custody, maintenance, matrimonial property and protection orders. The civil court of peace for certificates of inheritance, determination of the estate and its division; the civil court of first instance for abatement and for cancellation of title deed and registration.
• Court with jurisdiction: in divorce, the domicile of either spouse or the place where they lived together for the last six months; in inheritance cases, as a rule the last domicile of the deceased.

In family and inheritance files the outcome depends on the state of the evidence, the conduct of the parties and the assessment of the court. No undertaking as to result can be given at any stage.