What is an engagement?

What is an engagement?

The time that people who intend to marry spend together before marriage is referred to as engagement in the Civil Code. However, in every country, engagement is not included within legal regulations as it is in our civil code. Our Civil Code, as in the German and Swiss civil codes, has accepted the engagement period as a legal regulation and has introduced provisions regarding it.

Are betrothal and engagement different things?

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 to marry each other. For example; engagement begins at the moment a man proposes to a woman by saying "Will you marry me?" and the woman responds by saying "Yes, I will."

What is the legal nature of an engagement?

In the first paragraph of Article 118 of the Turkish Civil Code, it is defined as "Betrothal is a promise of marriage." There are 3 different views regarding the nature of this legal act.

The first of these is the preliminary contract view. According to this view, since the definition of betrothal in the Turkish Civil Code is regulated as a promise of marriage, the doctrine holds the view that betrothal is a preliminary contract that gives rise to the obligation to perform the marriage. In Article 22 of the Turkish Code of Obligations, a preliminary contract is defined as the commitment of the parties to each other to enter into the contract they ultimately intend to conclude in the future.

The second view is the decision view. This view holds that engagement is an act established by two people expressing their wills and accepting 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 corresponding declarations of will of a man and a woman. However, it has been accepted that this contract is not a contract arising from the Turkish Code of Obligations, but a contract subject to family law. Those who defend this view in the doctrine are of the opinion that engagement is not contrary to the Turkish Code of Obligations in terms of its nature. According to Article 120 of the Turkish Civil Code, a person who avoids marriage has an obligation to pay compensation to their fiancé(e) for breaching the promise of marriage. Along with the engagement, the parties are responsible for fulfilling their obligations arising from family law, as well as their obligations to perform the marriage and their duties of loyalty.

What are the constitutive elements of betrothal?

Article 118/1 of the Turkish Civil Code states: "Betrothal is a mutual promise of marriage between a man and a woman." The other constitutive element of betrothal is that the individuals making this mutual promise are of different sexes. In the presence of these two elements, the legal consequences of betrothal are discussed.

What is a mutual promise of 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 from only one side does not give rise to the legal consequences of an engagement. The promise of marriage can be made explicitly by word or in writing, or it can be made through other behavior that expresses this declaration of will. The act of a man and a woman remaining silent and extending their hands to have engagement rings placed on them is accepted as a behavior containing a promise of marriage.

Is an engagement subject to any form?

An engagement is not subject to any form. The existence of a promise of marriage is presumed in actions taken toward 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 in different ways 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 a formal requirement under the Turkish Civil Code. The fact that the parties propose marriage via text message and the other party sends an acceptance statement to this proposal indicates the existence of an engagement. In the event of a future legal dispute between the parties, it is accepted that the existence of an engagement ceremony or rings will serve as evidence.

Can a third person make a promise of marriage?

The promise of marriage must be made personally by the individuals who are to become engaged. It is not possible to become engaged on behalf of someone else through representation or power of attorney. For example; parents making a marriage promise on behalf of their children will not give rise to the legal consequences of an engagement.

How long can a response be given to a marriage proposal made by one party?

According to Article 4 of the Turkish Code of Obligations, if a face-to-face proposal is not accepted immediately, it is considered rejected. However, this situation 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.

Which marriage promises constitute an engagement?

As clearly regulated in the Turkish Civil Code, marriage promises consisting of questions through which the parties can easily understand each other and which reflect a serious intention to marry, and questions directed at the purpose of marriage, give rise to the legal consequences of an engagement. For example, an actor proposing to another actor on a film set for the sake of their role will, of course, not give rise to the legal consequences of an engagement. As another example, a man and a woman proposing marriage to each other as a joke to make each other laugh will not give rise to the legal consequences of an engagement.

What are the validity requirements of an engagement?

Engagement, as regulated in the Turkish Civil Code, is a legal act. It depends on the parties having the capacity to act, the promises of marriage not being contrary to mandatory legal rules, morality, and customs, the promise of marriage not being collusive, and the marriage not being impossible.

If the validity conditions of an engagement are not met, then the invalidity of the engagement is discussed.

What are the cases of invalidity of an engagement?

The lack of capacity of the parties to become engaged is regulated as a case of invalidity.

It is the case where the engagement is contrary to mandatory legal rules, morality, and customs.

It is the case where marriage is impossible.

It is the case where the engagement is based on a collusive transaction.

It is the case where the declarations of will of the parties are flawed.

What is the case of the parties lacking the capacity to become engaged?

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 transactions.

To explain those with no capacity according to 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 actions they take regarding an engagement are absolutely void. Since engagement is a right strictly attached to the person, it is not possible to perform it through a representative or power of attorney. Furthermore, since those with no capacity will not marry, it is not possible for them to become engaged.

According to Clause 2 of Article 118 of the Turkish Civil Code; for minors and restricted persons with limited capacity and the power of discernment, an engagement is not binding on 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, they have a duty of loyalty toward their fiancé(e), but the financial consequences that will arise from the breaking of the engagement cannot be imposed upon them.

According to Clause 2 of Article 452 of the Turkish Civil Code; if individuals with limited capacity under guardianship have deceived the other party by presenting themselves as having capacity, they are obliged to compensate for the damages they have caused to the other party for this reason.

According to Clause 2 of Article 451 of the Turkish Civil Code; the party with full capacity, upon learning of the other party's situation, may request the legal representative of the person with limited capacity to provide consent within a reasonable time for the engagement to take place. A legal representative who does not provide consent within a reasonable time also grants the party with full capacity the opportunity to break the engagement.

What is the case of an engagement being contrary to mandatory legal rules, morality, and customs?

This is the situation where parties who have a marriage impediment between them become engaged, or where a person becomes engaged to more than one person at the same time.

The presence of relatives with a marriage impediment, the presence of a mental illness that prevents marriage, the presence of an adoption relationship between them, or the existence of a current marriage constitute an obstacle to engagement.

Engagements made as a result of all these obstacles are considered invalid. Making a marriage promise contrary to the law, morality, and customs also constitutes the invalidity of the engagement.

The situation of a divorced or widowed woman becoming engaged without waiting for the waiting period (iddet) regulated in Article 132 of the Turkish Civil Code is considered valid. The reason for this is that failure to comply with the waiting period does not constitute an absolute marriage impediment.

If a married person’s spouse dies or they are divorced, becoming engaged with a promise of marriage to another person is considered invalid because it is contrary to morality and customs.

The situation of a person who is engaged becoming engaged for a second time to another person will also be invalid because it is considered contrary to morality and customs. If the first engagement has been terminated and subsequently a second engagement is made with a second person, this will be valid. If a person is carrying on two engagements at the same time, the second engagement they made will be invalid because it is contrary to morality and customs.

What is the case of an engagement being based on a collusive transaction?

Even though there is actually no engagement relationship between them, the situation where a man and a woman declare that they are engaged and show themselves to the people around them as if they were engaged is a case of invalidity of the engagement.

What is a flaw in the declaration of will?

If one of the parties has made a promise of marriage with a mental reservation even though they do not actually want to get engaged, then a flaw in the declaration of will is discussed. When a party communicates a promise of marriage to the other party as a joke, it cannot be said that the legal consequences of an engagement have occurred. If the other party takes the marriage promise made to them seriously, the declaration of the party who declared it as a joke has the result of a serious declaration and the engagement takes place. If the party who declared it as a joke states that the other party could have understood the joke and that they therefore fell into error, the other party has the right to request compensation for the breaking of the engagement.

In cases of misunderstanding, error, intimidation, or deception, since breaking the engagement will be considered a justified reason, it is evaluated separately according to each concrete case.

What is attaching a condition to an engagement?

For an engagement that meets the validity requirements to exist, it is accepted as possible to make it conditional. The condition agreed upon by the parties can be suspensive or resolutive. If the parties have agreed on a condition such as "If I pass the TUS exam, our engagement begins," this condition is a suspensive condition. If the parties have agreed on a condition such as "If I cannot pass the TUS exam, the engagement ends," this condition is a resolutive condition. These agreed-upon conditions must not be contrary to morality, customs, and personal rights. Likewise, attaching an engagement to the condition of having sexual intercourse is also accepted as contrary to morality.

What is attaching a time limit to an engagement?

For an engagement that meets the validity requirements to exist, it is accepted as possible to make it subject to a time limit. There is no legal obstacle to an agreement made regarding the engagement beginning at a future date. To give an example, it is possible for the parties to agree on an engagement at the beginning of the year and to make an agreement that this engagement relationship will begin on the first day of Ramadan. Actions taken by the parties to break the engagement before the Ramadan Feast are not considered valid. The reason for this is that the agreement regarding the start of the engagement on the first day of the Ramadan Feast is the declaration of will; only then will the provisions for breaking the engagement be applied.

What are the 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 each other, they are obliged to act in accordance with the promise of marriage. They must avoid situations that will prevent the marriage from taking place.

2- Obligation to perform the marriage: The parties must perform the necessary procedures for marriage, apply to the municipality for a date for the marriage, and undergo health checks.

3- Obligation of loyalty: Each of the parties is obliged to act loyally toward each other during the engagement process. Persons who promise to marry must refrain from behaviors that will negatively affect the marriage desires of the other. Behaviors contrary to the duty of loyalty give rise to the right to request compensation from the other party, just as in divorce cases.

4- Considering the engagement as close in the sense of the Civil Code: In Article 151 of the Turkish Civil Code, it is accepted that a marriage coerced by threatening one of the close relatives with a very imminent and serious danger to their life, health, or honor is a case of relative invalidity. Furthermore, according to Clause 1 of Article 510 of the Turkish Civil Code, committing a serious crime against one of their relatives is regulated as a reason for disinheritance. In both articles, the term "close" also covers engagement.

5- Ability to request compensation for loss of support and moral compensation: In the event that one of the engaged parties dies as a result of a tortious act, the surviving fiancé(e) has the right to file a lawsuit for compensation for loss of support and moral compensation against the perpetrator who committed this act.

6- Right to refuse to testify and judge: One of the engaged parties has the right to refuse to testify 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.

What are the cases of termination of an engagement?

1- Marriage: If the engaged parties marry each other, the engagement terminates.

2- Agreement of the parties: If the engaged parties have mutually agreed to terminate the engagement relationship, the engagement relationship terminates. This agreement is not subject to any form. The parties may request the return of gifts from each other.

3- Realization of a resolutive condition: In an engagement made subject to a resolutive condition, if the resolutive condition is realized, the engagement terminates.

4- Impossibility of marriage: If one of the engaged parties dies, the engagement terminates.

5- Occurrence of an absolute marriage impediment: 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 terminates automatically.

6- Breaking the engagement: The engagement terminates as a result of the declarations of will of the engaged parties. This situation does not need to be done with an explicit declaration of will. For example; the fiancé(e) not answering messages, leaving the city without informing anyone, refusing meeting requests, or not answering calls are such cases.

What are the justified reasons for breaking an engagement?

Deterioration of the financial situation of the engaged parties, their bankruptcy, the emergence of an unexpected situation in their relationship (e.g., having to take over the care of the fiancé(e)'s parents), learning about the fiancé(e)'s private life that was not in accordance with morality and customs before the engagement, the fiancé(e) being diagnosed with a serious illness, the emergence of serious differences of opinion and belief, contracting a contagious and incurable disease, the fiancé(e)'s family adopting a lifestyle that is not in accordance with morality and customs, being treated very badly toward the fiancé(e), and failure to comply with the obligation of loyalty.

Do the engaged parties have the right to request compensation from each other in the termination of the engagement?

In the event of unilateral termination of the engagement, the engaged parties have the right to request compensation from each other. The person under the obligation to pay compensation is the party considered at fault in the breaking of the engagement. The party who causes the engagement to be broken without a justified reason is considered at fault. For this reason, they are held responsible for paying compensation. If the justified reason for breaking the engagement arose as a result of the other party's faulty behaviors, then the party who broke the engagement has the right to request compensation from the other party.

If the breaking of the engagement is not based on any justified reason, then neither party will be able to request compensation from the other.

What are the damages and expenses to be compensated?

According to Clause 1 of Article 120 of the Turkish Civil Code, expenses incurred due to the engagement ceremony are paid by the person who breaks the engagement without a justified reason. All expenses incurred by the party who is in no way at fault for the breaking of the engagement for the purpose of getting married, for example, renting a house, honeymoon expenses, and items purchased for the house, are paid by the faulty fiancé(e). Expenses made for the engagement ceremony, for example, flowers, treats, and visit expenses, can also be demanded.

Can a lawsuit for compensation be filed against the person who unjustly breaks the engagement?

The other party can file a compensation lawsuit against the party who is unjust in the breaking of the engagement. In this lawsuit, the claim cannot be directed against the parents of the person who broke the engagement. However, if the party who is unjust in the breaking of the engagement has died, this lawsuit is directed against their heirs. The party who is faultless in the breaking of the engagement must prove the fault of the other party and that they broke the engagement without relying on a justified reason in the compensation lawsuit. If the plaintiff proves their case, the judge may use their discretionary power to decide on the payment of appropriate compensation.

Do third parties have the right to request compensation in the termination of an engagement?

In Article 120 of the Turkish Civil Code, it is provided that the parents of the faultless fiancé(e) or those who act like them have the right to file a compensation lawsuit against the faulty fiancé(e) due to the breaking of the engagement. All engagement expenses and expenses related to the realization of the marriage are demanded from the faulty fiancé(e) in the breaking of the engagement. For example; the purchase of the groom's suit by the girl's father or the purchase of household goods by the girl's mother.

What does the return of gifts mean?

Engaged parties give each other various gifts as a requirement of the engagement from the date the engagement takes effect. Any acquisition that has economic value for the fiancé(e) is accepted as a gift. For example; an engagement ring, engagement set, or engagement dowry chest is accepted as a gift.

What are the conditions for requesting the return of gifts?

The gift must have been given for the reason of engagement. For example, it is accepted that an engagement ring is given for the reason of engagement. These gifts must be beyond the ordinary. The judge, while evaluating this issue, will use their discretion by considering customs, traditions, and the conditions of the day to determine whether they are beyond the ordinary.

The engagement must have ended for a reason other than marriage. If the engagement ended only through marriage, the parties cannot request the return of gifts from each other.

If the engagement has ended due to death, mutual agreement, or the breaking of the engagement, the gifts must be returned to the parties.

The right to request the return of gifts is also granted to the parents of the engaged couple or those acting in the capacity of parents.

What is the statute of limitations for claims arising from the termination of an engagement?

In accordance with Article 123 of the Turkish Civil Code, claims arising from the termination of an engagement are subject to a statute of limitations of 1 year from the date of termination. There is also a 1-year statute of limitations for claims for material and moral compensation, as well as for the return of gifts. Furthermore, this statute of limitations also applies to the parents of the engaged individuals.