THE FAMILY LAW of TURKISH CYPRIOTS by J. N. D. ANDERSON London Introduction As Is Well Known, the Law of Turkey Underwent a Revo
Total Page：16
File Type：pdf, Size：1020Kb
THE FAMILY LAW OF TURKISH CYPRIOTS BY J. N. D. ANDERSON London Introduction As is well known, the law of Turkey underwent a revolution in the year 1926 with the adoption of codesof Europeanorigin-virtually lock, stock and barrel-in place of the laws of very heterogeneousbackground which had previously obtained. This momentous decisioninvolved the most decisivebreak with the past in the law of personalstatus and familyrelations, where the Islamiclaw of the Hanafi schoolwas replaced,almost overnight, by the Swiss Civil Code. It is true that the Hanafi law had been temporarily modified, in 1917, by the Ottoman Law of Family Rights: but this codificationhad been firmly based on the Shari'a, although it did substitute either a variant Hanafi opinion or the doctrine of some other Sunni school,in a number of particulars, for the dominant Hanafi doctrine whichhad previouslyprevailed; and this Law was, in any case, repealedin Turkey in 1919-although it survivedin someof those States whichwere carved out of the Ottoman Empire at the end of the First World War. It was not without considerablehesitation that even Mustafa Kemal Pasha and his colleaguesturned their backs in this uncompromisingfashion on the principlesand precepts of Islamic law in a sphere so intimately bound up in the warp and woofof the religionof Islam as family relations; for it has alwaysbeen the law of marriage,divorce and succession which, after matters of ritual and worship, has represented to Muslimsthe very heart of the Shari'a. On the contrary, the new regimein Turkey set up a specialcommittee, following the Lausanne Peace Conferencein 1923,to draft suitable legislationbased on the principles of the Shari'a, because the Governmentstill regarded "the extraction and derivation of the needed codes from the ready source of Islamic law as the most propitious and efficient means for the overall codification."1 But the committeesoon ran into difficultiesregarding the heterogeneousopinions and interpretations advocated by the different schools and jurists, past and present, and the principles onwhich these shouldbe selectedand integrated in the new legislation.A year's work ended in a completedeadlock: and it was only at this juncture that the Governmentstepped in, dissolvedthe committee,and decidedto abandon the attempt to base a codificationeven of familylaw on the Shari'a but to adopt a European code instead. This was regarded by the reformersas the "inevitable solution to centuries of paradoxesand conflicts",for the previousattempts to draft "laws and rules in accordance with the provisionsof Moslemcanonical law", to conformwith the convictionsof a "deeply religiouspopulation", had all proved abortive or inadequate. 2 Even so, it was not to be expected that this deeply religiouspopulation would abandon both its religiousprinciples and its age-oldtraditions, almostovernight, in favour of a code of entirely alien origin and inspiration. On the contrary, marriagesand divorceson Islamic 1 Cf. H. Timur, "The Place of Islamic Law in Turkish Law Reform", in Annales de la Faculté de Droit d'Istanbul, No. 6, 1956,p. 76; also Die Welt des Islams (=WI), N.S. II, No. 3, 1953,P. 211. 2 Annales,1956, p. 76; cf. WI XXII, 1940,p. 21. 162 principles1 havecontinued to exist, side by side with civil marriagesand divorces,particu- larly in the villagesof Anatolia;and it has beenimpossible for the Governmentand the courts whollyto ignore them. It was comparativelyeasy for the courts to extend the rule that the childrenof parents who were betrothed, but prevented from concludingtheir marriagesby the death or lossof capacity of one of them, couldbe declaredlegitimate upon the application of the other party or of the child himself2, and regard it as applicable to the children of "informal"marriages contracted under Islamicprinciples 3. It was also considerednecessary to reduce the minimumage of marriage,in 1938,from eighteenfor a boy and seventeenfor a girl to seventeen and fifteen respectivelyor even, in exceptional circumstances,to fifteen and fourteen.4 But these expedients were not enough, and laws had to be passed in 1933, 1945,195o and rg56 ?providing that the childrenof all such "informal" unions6 (that is, marriagesunder the traditional law) might be registeredas legitimate,and that where there wasissue these marriagesthemselves should be consideredvalid, and shouldbe registered as such, providedonly that they were in fact monogamous.7 ' In the circumstancesthe dichotomywhich still persists, it is clear, between the statute law and the practice of the people,particularly in rural areas, is small matter for surprise 8. It can partially be explainedon groundsof mereconvenience, for the conclusionof a marriage under the Civil Code must involve considerableexertion and expensein the more remote districts. It can be attributed in part to economicand socialreasons, such as the circum"tan- ceswhich still induce a farmer,on occasions,to marry a secondwife 9, or the sentiment which prompts many to desire a union which can bc repudiated more easily than a civil marriage. But there can be no manner of doubt that a further explanation is provided by religious sentimentand conviction;for to many Turkish Muslimsit is the civil marriagewhich appears irregular, and a union concludedin the traditional way valid and respectable.It may well be that the number of such persons is steadily decreasing,although statistics are not, of course, readily available; but it seems indubitable that those who still take this view re- present a not inconsiderableproportion of the rural population.10 Nor is this, in its turn, at all surprising. It is true that many dh'ferent communitiesof Muslimsin the history of Islam have continued,throughout long periods, to followcustornary practices-even in regard to marriage,divorce and inheritance-which are at sharp variance with the doctrinesof the schoolof law to whichthey professto belong.Even so, the pressure of the Shari'a is apt to becomemore insistent with the years, so that sooneror later the more educated among them find it increasinglydifficult to reconciletheir principleswith their practice-for it is in the sphereof familylaw that the preceptsof Islam are most unequivocal and imperative.But whileit may take centuriesbefore the pressureof the Sharila succeedsin 1 The "Im�mmarriage" as distinct from the "Civil marriage". Cf. G. Jäschke, "Die 'Imam-Ehe' in der Turkei", in WI, N.S. IV, No. 2-3, 1955,pp. 182ff. 2 Turkish CivilCode, s. 249; SwissCivil Code, s. 260. 3 Cf. K. F. Arik, "The PrincipleDifferences between Turkish and SwissPractice in Inter- preting the CivilCode", in Annales,1956, p. 148. 4 Law No. 3453 of 1938.Cf. H. V. Velidedeoglu,"Problèmes de la Réceptiondu C.C.S. en 5Turquie",in Annales,1956, p. 114; also WI, N.S. IV, p. 189. 5 Laws Nos. 2330,4727, 5524 and 6652respectively; cf. WI, N.S. IV, p. 184ff., V, 1957,p. 115. 6 Or "persons living together as married people" but without having registered with a MarriageOfficer. 7 Cf. Velidedeo�lu,art. cit., p. 112. 8 Cf., inthis context, E. Pritsch, "Das SchweizerischeZivilgesetzbuch in der Türkei", in Zeitschriftfür vergleichendeRechtswissenschaft, 59. Bd. 1957,pp. 174-8. 9 It seemsthat some ten per cent of the rural population are still practising polygamy, for the Turkish newspaperDünya, of 24th January 1957,published statistics showingthat nearly 3 per cent of all Turkish women were married to husbands who had more than one wife; and this must represent some 10 per cent in rural areas. Cf. CentralStatistical Office, Ankara, PublicationNr. 372, 1957,p. 25. 10Cf. WI, N.S. IV, p. 184. .