Establishing the family

"Nesep", which means "ancestry, paternal lineage" in the dictionary of the Turkish Language Association, is a concept used in the old Turkish Civil Code. In the new TMK, the word "paternity" is used instead of lineage.

According to Article 282 of the TMK, the lineage between mother and child is established at birth. Whether the mother is married or single has no effect on establishing paternity with the child. In the same law article, three different methods are regulated for establishing paternity between the father and the child. Namely;

1.Marriage with the mother, 2.Recognition 3.By the judgment of the judge.

1. ESTABLISHING FAMILY THROUGH MARRIAGE WITH THE MOTHER

The first method of establishing paternity between the child and the father is based on the husband's paternity, that is, the "presumption of paternity". Presumption of paternity is stated in Article 285 of the Turkish Civil Code: "The father of the child born while the marriage is continuing or within three hundred days starting from the termination of the marriage is the husband." It is expressed as follows.

Two different situations are regulated within the scope of the presumption of paternity. The first of these is that the child is born while the marriage continues, and the second is that the child is conceived during the marriage but is born within 300 days after the marriage ends. In both cases, the father of the child will be considered the husband.

IS THERE A DURATION OF MARRIAGE REQUIREMENT TO BENEFIT FROM THE PRESUMPTION OF PARENTS?

The law does not stipulate a condition regarding how long the marriage between the mother and the husband has been ongoing in order to establish lineage based on the presumption of paternity between the child and the father. In other words, even if the child is born immediately after marriage, he will be able to benefit from the presumption of paternity. However, this situation is important for the husband, who claims that the child is not his and is considered the father according to the presumption, to refute the presumption of paternity by filing a lawsuit to reject paternity.

THE CHILD WAS BORN DURING THE DEATH PERIOD

The paternity of the child born within 300 days (iddat period) after the marriage union ends, in other words, the child who was conceived while the marriage was still ongoing, is within the scope of the presumption of paternity in accordance with TMK 285. Since the husband in the ended marriage is considered the father, lineage is established between him and the child.

•"The plaintiff mother requested to be given the custody of the child born 8 months after her divorce with the defendant, and the court decided to determine that the custody of the minor belongs to the mother if the mother and father are not married. It is understood that the minor in the case was born after the divorce and was registered in the father's household. The father of the child born while the marriage is still ongoing or within 300 days after the end of the marriage is the husband. "According to the mother's statement, paternity has been established between the plaintiff mother's divorced husband, the defendant, and the minor. Since the paternity of the minor subject to the lawsuit has not been denied by the defendant father, the pending custody of the minor must be regulated." Y2HD. 2016/11503 E. 2016/12563 N. 28.06.2016

So when does this 300-day period start?

If the marriage ended with divorce, the period begins on the day following the finalization of the divorce decision.

If the marriage ended due to the death of the husband, the period begins the day following the date of death.

If the husband's absence has been decided, the period starts to count from the date of danger of death or the last news date, in accordance with TMK 285/3.

IF THE CHILD WAS BORN AFTER THE IDDAT PERIOD HAS EXPIRED

TMK 285/2: "The attachment of the child born after this period to the husband is possible by proving that the mother became pregnant during the marriage." It is shaped like.

The rule in the presumption of paternity is that a lineage relationship is established between the husband and the child born within 300 days after the end of the marriage. However, the law makes it possible for the husband in the marriage to be considered the father, in accordance with the presumption of paternity, if it is proven that the pregnancy occurred during the marriage that ended.

CONFLICT OF PRESUMES IN CASE OF A CHILD CONCEIVED IN THE FIRST MARRIAGE AND BORN IN THE SECOND MARRIAGE BEFORE THE END OF IDDAT PERIOD

If a woman remarries before the end of the waiting period and gives birth to a child before the end of this period, the two presumptions regulated in TMK 285 will conflict.

However, as regulated in TMK 290, "If the child is born within three hundred days starting from the end of the marriage and the mother remarries in the meantime, the husband in the second marriage is considered the father.

If this presumption is refuted, the husband in the first marriage is considered the father." The provision solves the problem caused by the conflict of presumption.

According to the letter of the law, the husband in the first marriage can refute the presumption by proving that the child was conceived during their marriage and thus establish paternity between himself and the child.

HOW DOES MARRIAGE WITH THE MOTHER AFTER THE CHILD IS BORN AFFECT THE FAMILY?

As regulated in TMK 292, "A child born outside of marriage is automatically subject to the provisions regarding children born within marriage, if the parents are married to each other." With this provision, the paternity of joint children born out of wedlock (whether stillborn or alive) is established with the father.

According to TMK 293, "Spouses are obliged to notify the civil registry officer in their place of residence or the place where the marriage took place, during or after the marriage, about their joint children born outside of marriage.

Failure to notify does not prevent the child from being subject to the provisions regarding children born within marriage.

When the parents of children whose lineage was previously established by recognition or paternity get married, the civil registry officer takes the necessary action ex officio.”

•In order to establish paternity between the father and his non-marital joint children by marrying the mother, care must be taken that the child does not have an existing paternity relationship with anyone else.

•OBJECTION AND CANCELLATION CASE FOR PARENTALITY: TMK 294 provides the right of those concerned to object to the paternity relationship established between the child and the father through marriage. Those who have the right to object; The legal heirs of the parents are the child and the Public Prosecutor. With the annulment lawsuit to be filed, it must be proven that the husband who married the mother and established paternity between the child is not the real father. The deadline for filing a lawsuit is for the legal heirs of the mother and father and the public prosecutor; 1 year from the date of marriage and learning that the husband is not the father, and in any case 5 years from the date of marriage. The period for filing a lawsuit for a child is 1 year after reaching adulthood. Cases regarding paternity are filed in the court of one of the parties' place of residence at the time of the case or birth. The competent court is the Family Courts.

2. ESTABLISHING FAMILY THROUGH RECOGNITION

Recognition is a unilateral declaration of will that ensures the establishment of lineage between the child born out of wedlock and the father. Since it is a right strictly bound to the individual, the person who will declare his will is the father himself. Recognition made in accordance with the law and procedure creates a retroactive innovation, that is, it ensures the establishment of lineage with the father from the birth of the child.

VALIDITY CONDITIONS OF RECOGNITION

TMK art. According to Article 295, "Recognition is made by the father's written application to the civil registry officer or the court, or by the declaration made in the official deed or will. If the person making the declaration of recognition is minor or limited, the consent of the parent or guardian is also required."

The validity of the recognition depends on the child not having an existing family relationship with another man. Because it is not possible to establish two lineages at the same time. First of all, the existing family relationship, if any, must be eliminated.

The ability to establish lineage through recognition is not subject to any time period.

NOTIFICATION OF RECOGNITION

TMK art. 296, "The civil registry officer, judge of peace, notary or judge who opened the will, to whom the declaration is made, notifies the recognition to the civil registry offices where the father and the child are registered.

The civil registry office where the child is registered also notifies the child, his/her mother, and the guardianship authority if the child is under guardianship." Notifications are made in accordance with the provision.

CANCELLATION OF RECOGNITION CASE

TMK 298 provides the right to file an annulment lawsuit regarding the paternity relationship established between the child and the father through recognition.

Cancellation case; In case of death of the mother, the child and the child, the descendants, the public prosecutor, the Treasury and other relevant persons can open the case.

The lawsuit is filed against the person who recognized him, or his heirs if the person who recognized him is dead.

In the annulment case to be filed, it must be proven that the person who establishes paternity between the child and the child is not the real father.

The right of the relevant parties to sue expires one year from the date on which the plaintiff learned about the recognition and that the person who recognized him could not be the father of the child, and in any case five years from the date of recognition. The child's right to sue ceases after one year has passed since he/she becomes an adult.

3- ESTABLISHING FAMILY THROUGH PAternity Clause

The third way to establish paternity between the child and the father is the court decision given as a result of the paternity lawsuit. In order to establish paternity between the child and the father by filing a paternity suit, the mother of the child must be determined. We will examine the details such as the conditions, parties and legal consequences of the paternity case in our article "Paternity Case".