THE LEGAL DIMENSIONS OF ENGAGEMENT
THE LEGAL DIMENSION OF ENGAGEMENT
The time that individuals who wish to marry spend together before marriage is referred to as “engagement” in the Civil Code. Like the German and Swiss civil codes, our Turkish Civil Code has recognized the engagement period as a legal arrangement and has introduced provisions regarding it.
Although it is thought that “betrothal” and “engagement” mean the same thing, they actually correspond to different meanings. Betrothal is a legal act in which a man and a woman mutually promise each other to marry. For instance, engagement begins the moment a man proposes marriage to a woman by saying “Will you marry me?” and she replies, “Yes, I will.”
In the first paragraph of Article 118 of the Turkish Civil Code, it is defined as: “Engagement is a promise of marriage.” There are three different schools of thought regarding the nature of this legal act.
The first of these is the preliminary contract view. According to this view, because the Turkish Civil Code defines engagement as a promise of marriage, the doctrine holds that engagement is a preliminary contract that creates an obligation to perform the marriage. Under Article 22 of the Turkish Code of Obligations, a preliminary contract is defined as a commitment by parties to enter into a future contract that is their ultimate goal.
The second view is the decision view. This view holds that engagement is an act established when two people express their intent and accept their suitability for each other.
The third view is the contract view. This view argues that engagement is a contract established by the mutual and conforming expressions of intent between a man and a woman. However, it is accepted that this contract is not one derived from the Turkish Code of Obligations, but rather a contract subject to family law. Those who advocate for this view in the doctrine argue that engagement is not in conflict with the Turkish Code of Obligations by its nature. Article 120 of the Turkish Civil Code stipulates that a person who avoids marriage violates the promise of marriage and has an obligation to pay compensation to their fiancé(e). Along with the engagement, the parties are responsible for fulfilling their obligations arising from family law, as well as their obligations of loyalty, in addition to their obligation to carry out the marriage.
As clearly regulated in the Turkish Civil Code, for an engagement to exist, there must be a mutual promise of marriage from both parties. A promise of marriage by only one party does not produce the legal consequences of an engagement. A promise of marriage can be made explicitly by word or in writing, or it may be made through other behavior that expresses this intent. The act of a man and a woman remaining silent and extending their hands to have engagement rings placed on them is accepted as behavior containing a promise of marriage.
Engagement is not subject to any formal requirements. Acts aimed at marriage constitute a presumption of the existence of a promise of marriage. In conservative circles, the existence of sexual intercourse between the parties constitutes a presumption of a mutual promise of marriage. Although the mutual exchange of rings in engagement ceremonies, which are held differently in every country, is accepted by society as a formal requirement for engagement, it is clear that the engagement ceremony and the wearing of rings are not formal requirements under the Turkish Civil Code. The fact that the parties propose marriage to each other via text message and the other party sends a declaration of acceptance confirms the existence of an engagement. In the event of a future legal dispute between the parties, the presence of an engagement ceremony or rings is accepted as evidence.
The promise of marriage must be made by the individuals who are to be engaged themselves. It is not possible to become engaged on behalf of someone else through representation or power of attorney. For example, parents promising marriage on behalf of their children will not produce the legal consequences of an engagement.
Under Article 4 of the Turkish Code of Obligations, if a proposal made in person is not accepted immediately, it is considered rejected. However, this does not apply to engagement. Unless it is explicitly stated that an immediate answer is required, every marriage proposal requires time for the other party to think and decide.
Regarding the grounds for the invalidity of an engagement, these are:
The lack of capacity to become engaged on the part of the parties is regulated as a ground for invalidity.
The case where the engagement is contrary to mandatory legal rules, public morality, or custom.
The case where marriage is impossible.
The case where the engagement is based on a collusive act.
The case where the declarations of intent of the parties are flawed.
As regulated in Article 10 of the Turkish Civil Code, those with full capacity can perform an engagement just as they can perform other legal acts.
To explain those with no capacity under Article 15 of the Turkish Civil Code: they are those who lack the power of discernment. Since those with no capacity lack the power of discernment, any acts they perform regarding an engagement are absolutely void. Since engagement is a right strictly personal to the individual, it is impossible for it to be performed through a representative or power of attorney. Furthermore, since individuals with no capacity cannot marry, it is not possible for them to become engaged.
According to the second clause of Article 118 of the Turkish Civil Code, for minors and restricted persons with limited capacity who possess the power of discernment, an engagement does not bind the minor or the restricted person without the consent of their legal representatives. It can be said that for a person with limited capacity, an engagement made without the consent of their legal representative is valid, and there is an obligation of loyalty toward the fiancé(e), but the financial consequences that may arise from the breaking of the engagement cannot be imposed upon them.
According to the second clause of Article 452 of the Turkish Civil Code, if persons with limited capacity under guardianship have deceived the other party by presenting themselves as competent, they are obligated to compensate for the damages they have caused to the other party for this reason.
According to the second clause of Article 451 of the Turkish Civil Code, the party with full capacity may request the legal representative of the person with limited capacity to provide consent within a reasonable time for the engagement to proceed once they learn of the other party's status. A legal representative who does not provide consent within a reasonable time also gives the party with full capacity the opportunity to break the engagement.
Obligations of the engaged parties toward each other;
1- Obligation to act in accordance with the promise: Since the parties have mutually promised to marry, they are obligated to act in accordance with that promise. They must refrain from acts that would prevent the marriage from taking place.
2- Obligation to carry out the marriage: The parties must perform the necessary procedures to marry, apply to the municipality to set a date for the marriage, and undergo health checks.
3- Obligation of loyalty: Each party is obligated to act with loyalty toward the other during the engagement process. Those who promise to marry must refrain from behaviors that would negatively affect their desire to marry each other. Behaviors contrary to the obligation of loyalty create the right to claim compensation from the other party, just as in divorce cases.
4- The engagement being considered "close" in the sense of the Civil Code: In Article 151 of the Turkish Civil Code, marriage performed by threatening a person with an imminent and grave danger directed at the life, health, or honor and dignity of one of their close ones is accepted as a state of relative nullity. Furthermore, in accordance with the first clause of Article 510 of the Turkish Civil Code, committing a grave crime against one of their close ones is regulated as a ground for disinheritance. In both articles, the term "close one" also encompasses engagement.
5- Ability to claim compensation for loss of support and moral damages: In the event that one of the engaged parties dies as a result of a tort, the surviving fiancé(e) has the right to file a lawsuit for loss of support and moral damages against the perpetrator who committed the act.
6- Right to refrain from testifying and serving as a judge: One of the engaged parties has the right to refrain from testifying in a case where the other fiancé(e) is a defendant or plaintiff, or in a criminal case where the fiancé(e) is a defendant. This situation also applies if one of the engaged parties serves as a judge in these cases.
Cases of termination of engagement;
1- Marriage: If the engaged parties marry each other, the engagement ends.
2- Agreement of the parties: If the engaged parties have mutually agreed to terminate the engagement relationship, the engagement ends. This agreement is not subject to any formal requirements. The parties may request the return of gifts from each other.
3- Fulfillment of a resolutory condition: In an engagement made subject to a resolutory condition, the engagement ends if the condition is met.
4- Impossibility of marriage: The engagement ends upon the death of one of the engaged parties.
5- Occurrence of an absolute impediment to marriage: If there is an absolute impediment to the marriage of the engaged parties—for example, mental illness or one of the engaged parties being the adoptee of the other—the engagement ends automatically.
6- Breaking of the engagement: The engagement ends as a result of the declarations of intent of the engaged parties. This does not need to be done through an explicit declaration of intent. Examples include the fiancé(e) not responding to messages, leaving the city without informing anyone, refusing meeting requests, or not answering calls.
In the event of a unilateral termination of the engagement, the engaged parties have the right to claim compensation from each other. The person under the obligation to pay compensation is the party accepted as being at fault for the breaking of the engagement. The party who causes the breaking of the engagement without a justifiable reason is considered at fault. For this reason, they are held responsible for paying compensation. If the justifiable reason for breaking the engagement arose as a result of the faulty behavior of the other party, then the party who broke the engagement has the right to claim compensation from the other party.
If the breaking of the engagement is not based on any justifiable reason, then neither party can claim compensation from the other.