Who May Not Marry? Capacity to Marry and Impediments

Under the Turkish Civil Code, kinship of certain degrees, an existing marriage and mental illness that is an impediment to marriage are among the impediments. Age, capacity of discernment and, where required, the consent of the legal representative are also needed for capacity to marry. The woman’s waiting period after a previous marriage and health documents are checked separately.

Whether an impediment existed and which sanction applies to a marriage already celebrated are not the same question. Some shortcomings require the application to be completed; others may lead to an action for nullity. Drawing that distinction at the outset avoids mistaken conclusions such as “once the ceremony has taken place everything is cured” or “if a document is missing the marriage does not exist at all”. This is general information, not a determination of an individual application.

Under TMK art. 124, a woman or a man may not marry in the ordinary way until they have completed the age of seventeen. For a person who has completed seventeen but is not yet of full age, the consent of the legal representative is also considered. A person who has completed eighteen, has capacity of discernment and is not under guardianship does not need parental consent.

In an extraordinary situation and for a very important reason, the judge may permit a person who has completed the age of sixteen to marry. This exception does not apply of its own force merely because the families agree. The court must assess the concrete circumstances; permission to marry cannot be granted under this provision below the age of sixteen.

In calculating age, whether the birthday has passed matters. “Having entered one’s seventeenth year” is not the same as having completed seventeen. A decision conferring majority should not be assumed automatically to remove the special conditions on marriage age.

A person who lacks the ability to assess the meaning and consequences of marriage may not marry. Another person’s approval does not replace this personal will. There may be situations in which application formalities can be carried out by proxy, but a statement of the will to marry by a proxy is different; a personal declaration is required at the ceremony.

For the marriage of minors and persons under guardianship, TMK arts. 126–128 apply. If the legal representative withholds consent without a justified reason, an application to the court is possible. Consent does not, however, remove the need for the other conditions such as age and capacity of discernment.

A medical diagnosis and the absence of capacity of discernment are not the same thing. The assessment is specific to the person and to the time of marriage. Capacity to marry cannot be determined with certainty from the name of a diagnosis or from the fact that the person is receiving treatment.

Under TMK art. 129, marriage is prohibited between ascendants and descendants, between siblings, and between uncle, aunt or great-uncle/great-aunt and their nieces and nephews. Half-siblings who share only one parent are also within siblinghood. The prohibition is not limited to persons who grew up in the same household.

The ascendant–descendant relationship does not end with parents and children; it also covers grandparents and grandchildren. An error or omission in the civil-status records does not of itself extinguish a real kinship. Correction of the records may then arise separately.

Cousins are not within the marriage prohibition listed in this article. Saying so does not mean that every other condition is satisfied for a cousin marriage; age, marital status, will and health conditions are still assessed.

The prohibition of marriage between one spouse and the other spouse’s ascendants or descendants continues even if the marriage that created the affinity has ended. For example, marriage with a former spouse’s mother or father does not become possible merely because a divorce has taken place.

This is not an unlimited ban covering all relatives by marriage. The relationship the statute creates for ascendants and descendants is decisive. Marriage with a former spouse’s sibling is therefore assessed differently from marriage with a former spouse’s child; in every case the end of the previous marriage and the other conditions are checked.

Marriage between adopter and adoptee is prohibited. The statute also brings within the prohibition marriages between one of them and the descendants or the spouse of the other. It is not enough to look only at whether there is biological kinship.

The adoption order and the civil-status record matter in identifying the relationship. Foster care, a care relationship and a legally established adoptive relationship are not the same institutions. In the application, the official act on which the relationship rests should be identified as well as the name given to it.

A second marriage cannot be contracted while an existing marriage continues. Living separately for a long time, filing a divorce petition or obtaining a first-instance divorce judgment is not enough by itself. For the possibility of remarriage after divorce, finality of the judgment and registration formalities matter.

The disappearance of the previous spouse does not by itself make a new ceremony possible. A declaration of absence and dissolution of the marriage are separate issues; the dissolution conditions in TMK art. 131 are assessed. As to the effect in Turkey of a foreign judgment, registration, recognition or enforcement may be required.

TMK art. 132 lays down a three-hundred-day waiting period for a woman whose marriage has ended. In divorce, the starting point is linked to finality of the judgment. The period ends with birth; the court lifts it if it is established that the woman is not pregnant from the previous marriage, or if the former spouses wish to remarry each other.

Obtaining a medical report and the court’s lifting of the period are not the same act. When applying for a ceremony, it should be checked whether the necessary decision and records exist. A marriage celebrated without observing the waiting period is not void for that reason alone; TMK art. 154 draws this distinction expressly.

Under TMK art. 133, persons with a mental illness may marry if an official medical-board report shows that there is no medical objection to the marriage. The general health-document conditions of the application must also be met. Missing paperwork and the actual existence of an illness that impedes marriage are different situations.

If the marriage officer finds an impediment or a shortcoming, the reason for refusal should be learned and it should be identified which document can remedy the problem. Against a refusal, an application to the court is available under TMK art. 138. Time limits and jurisdiction should be checked according to the concrete act.

The main legal bases are TMK arts. 124–138, 145 and 154. Explanations by the Directorate of Population and Citizenship Affairs assist with application documents; the legal assessment of a person’s situation is made separately.