Filiation refers to the bond between people descending from the same ancestor; however, the legal meaning of the word is slightly different. Filiation is divided into two categories as narrow and broad sense. In the narrow sense, filiation means the bond between a person and their mother and father. “In the Turkish Civil Code (TCC), the term filiation refers to the narrow sense of filiation.” (1) “In the broad sense, filiation is the relationship between people connected by blood ties.” (2)
Kinship and filiation are different concepts and should not be confused with one another. Kinship can arise through marriage or adoption. Blood kinship is the bond between people descending from a common ancestor, and the bond between parents and children is called ascendant–descendant kinship. Affinity, on the other hand, is a type of kinship that arises through marriage. It has a broader meaning than filiation and also encompasses it.
Provisions regarding filiation are specifically regulated by the legislator in the section entitled “Establishment of Filiation” under the heading “Kinship” in the second part of the Family Law Book of the Turkish Civil Code No. 4721. The provisions on the denial of paternity, which is the subject of this study, are regulated in detail between Articles 286 and 291 of the TCC.
In the first paragraph of Article 41 of our Constitution, it is stated that the family forms the foundation of Turkish society. For the formation of a healthy society, the smallest unit of society—the family—must be established in a healthy manner. In ensuring a healthy family structure, the establishment, correct determination, and registration of filiation is one of the important issues.
According to Article 282 of the TCC, filiation with the mother is established through birth and adoption, while filiation between father and child is established through marriage to the mother, acknowledgment, paternity action, or adoption. In order to establish filiation between father and child, the child must not have an existing filiation with another father; if such exists, an action for denial of paternity must be filed to rebut the presumption of paternity, terminate the existing filiation, and then establish filiation with the new father.
“An action for denial of paternity means rebutting and nullifying the valid presumption of paternity between the father and the child.” (3) Legal presumptions are divided into two categories depending on whether they can be rebutted. Rebuttable legal presumptions are called simple presumptions, and those that cannot be rebutted are called conclusive presumptions; the presumption of maternity is an example of the latter. The presumption of paternity, on the other hand, is a simple presumption arising from the law and is regulated in Article 285 of the TCC. According to Article 285, a child born during marriage or within three hundred days after the dissolution of the marriage is presumed to be the child of the husband. Even if the court declares the marriage void, under Article 157 of our law, this does not affect the result of the presumption; children are still deemed to have been born within the marriage. The three-hundred-day period is the waiting period a mother must observe before remarrying, known as the “waiting period” . The criterion for determining this period has been expressed in doctrine as: “The three-hundred-day period is the maximum duration a pregnancy may last, according to general life experience and medical science, and begins from the date the divorce or annulment decision becomes final, or from the date of the husband’s death.” (4) Presumed death occurs when death is not certain but probable, and the body is missing. The presumption of death applies when a missing person is presumed dead but the body is not found. According to Article 285/3 of the TCC, if the husband is declared presumed dead, the three-hundred-day period begins from the date of the danger of death or the date of last news from him. “If the husband has been declared presumed dead, the presumption of paternity will not apply after three hundred days have passed since the last news in cases of prolonged absence, or since the date of the danger of death in cases of disappearance during such danger, regardless of whether the dissolution of marriage was requested or finalized.” (5) Under paragraph two of this article, if a child is born after the three-hundred-day period, the mother must prove that she became pregnant during the marriage for the child to be connected to the former husband through filiation.
“After the dissolution of the marriage, the mother may remarry immediately without waiting for the waiting period.” (6) “As is known, the three-hundred-day period during which a woman is prohibited from marrying constitutes a relative impediment to marriage.” (7) If the mother remarries before the waiting period expires and a child is born before three hundred days have passed since the end of the first marriage, presumptions will conflict. This situation is resolved under Article 290 of the TCC, which states that in case of conflicting presumptions, the husband in the second marriage is presumed to be the father. A child born during a marriage is presumed to be the child of the husband under the TCC; however, since this is a rebuttable presumption, it may be rebutted through legal evidence showing that another man is the father, by filing an action.
“Denial of paternity means rebutting and nullifying the valid presumption of paternity between the father and child through an action for denial of paternity, which is a formative action with a nullifying effect.” (8) An action for denial of paternity is a formative action with a nullifying effect. This action must be filed to correct filiation. The denial of paternity has retroactive effect, applying back to the moment of birth. After the judgment becomes final, the child’s filiation with the mother continues, but the child becomes “illegitimate” with respect to the father and the father’s family. Because the decision has retroactive effect, all expenses and costs incurred by the husband since birth can be reclaimed. “Childcare expenses can be claimed from the mother and the biological father under the provisions on unjust enrichment or agency without authority in the Turkish Code of Obligations.” (9)
The competent court in an action for denial of paternity is the family court. “As jurisdiction is a condition of action under the Code of Civil Procedure, if an action for denial of paternity is filed in a court other than a family court in places where family courts exist, the action will be dismissed on procedural grounds.” (10) If there is no family court in the location, civil courts of first instance hear these cases in their capacity as family courts. The venue for an action for denial of paternity is regulated in Article 283 of the TCC as the court of the place of residence of either party at the time of filing the action or at the time of birth.
PARTIES IN THE ACTION FOR DISPUTING PATERNITY AND AMENDMENTS INTRODUCED BY THE NEW JUDICIAL REFORM PACKAGE
Persons entitled to bring an action for disputing paternity are regulated in Articles 286 and 291 of the Turkish Civil Code (“TCC”). The legislator has enumerated these persons in a limited manner and has imposed statutes of repose, thereby restricting this right. The husband, the mother, or the child are persons who have the legal standing to bring an action for disputing paternity. Such an action is filed against the other persons entitled to bring the same action. “The court may consider the statutes of repose ex officio at any stage of the proceedings, and the interested parties may also raise the objection that such time limits have expired at any stage of the proceedings.” (11) If the action is brought after the expiry of these time limits, the court will dismiss the case. “A husband, against whom the presumption of paternity applies, may bring an action for disputing paternity to rebut this presumption.” (12) “Since this right is a strictly personal right of the husband,” (13) “any waiver of this right is invalid.” (14) The husband must bring the action within one year from the date he learns both of the birth of the child with whom he has a legal paternity relationship and that he is not the father, or that his wife had sexual intercourse with another man during the period of conception. The child must bring the action within one year from the date of attaining majority. “The child does not have to be of full age to bring the action; he/she may bring the action for disputing paternity at any time before attaining majority.” (15) A guardian appointed for a minor child may bring the action for disputing paternity within one year from the notification of the appointment decision. “If no guardian is appointed for the minor child or if the appointed guardian does not file the action within the prescribed period, the child’s right to bring an action after attaining majority is not adversely affected, provided that the action is filed within the statute of repose.” (16)
If the husband permanently loses mental capacity, dies, or is declared missing, other interested parties acquire the right to bring an action. Since this right arises from a special circumstance, persons other than those who have a legal interest in bringing the action have secondary legal standing. Among other interested parties, the husband’s descendants, mother, and father have independent rights to sue. However, “if before falling into any of the situations enumerated in the law, the husband has explicitly declared or implied by conduct that he will not bring the action, or if he has implicitly accepted the child, other interested parties except for the person claiming to be the father will no longer have the right to sue.” (17) A person claiming to be the father may bring an action only within one year from the date he learns of the husband’s death, permanent loss of mental capacity, or declaration of absence, provided that this is before the expiry of the husband’s filing period.
If the husband brings the action, the defendants are the mother and the child; if the child brings the action, the defendants are the mother and the husband; if the mother brings the action, the defendants are the husband and the child; if the person claiming to be the father brings the action, the defendants are the mother, the child, and the husband.
The Law No. 7531 on Amendments to Certain Laws, published in the Official Gazette dated 14 November 2024, has amended Articles 286, 289, and 291 of the TCC relating to the dispute of paternity. Under Article 9 of this law, the right to bring an action was also granted to the child’s mother, and Article 286 of the TCC was amended accordingly. Furthermore, under Article 10, the phrase “the mother from birth” was inserted into TCC Article 289, thereby specifying that the period for the mother to file an action is one year from the date of birth. Lastly, the amendment made in Article 11 was to relocate the phrase “the person claiming to be the father” within Article 291 to prevent ambiguity.
According to TCC Article 289, the husband must bring the action within one year from the date he learns both of the birth and that he is not the father, or that the mother had sexual relations with another man during the period of conception. The mother must bring the action within one year from the date of birth, and the child within one year from the date of attaining majority. If the delay is based on a justifiable reason, the one-year period will start from the date the impediment ceases, at the discretion of the court. Before the expiry of the filing period, if the husband dies, is declared absent, or permanently loses mental capacity, the person claiming to be the father, the husband’s descendants, mother, or father may bring the action for disputing paternity within one year from the date they learn of the birth and of the husband’s death, loss of capacity, or declaration of absence. In addition, a guardian appointed for a minor child may bring the action within one year from the date of notification of their appointment.
Proof in an action for disputing paternity is regulated in Articles 287 and 288 of the TCC. Under Article 287, if the child was conceived during marriage, the plaintiff must prove that the husband is not the father. A child conceived at least one hundred and eighty days after marriage and at most three hundred days after the dissolution of marriage is deemed to have been conceived during marriage. “The plaintiff must prove that it was impossible for the husband to have had sexual intercourse with his wife during the period of conception or that the child’s birth was not the result of sexual relations between the husband and wife.” (18) Under TCC Article 288, if the child was conceived before marriage or during separation, the plaintiff need not provide further evidence. However, if there is credible evidence that the husband had sexual intercourse with his wife during the conception period, the presumption of paternity remains valid.
In paternity-related actions, the Civil Procedure Code (“CPC”) applies to procedural matters, but the provisions of TCC Article 284 are reserved. The judge is obliged to investigate the material facts of the case ex officio. The parties and third persons are obliged to consent to the research and examinations necessary to determine paternity, provided that such examinations do not endanger their health. If the defendant refuses to consent to the research and examination ordered by the court, the judge may, depending on the circumstances, consider the expected result as established against that person. However, CPC Article 292 contains a different regulation: “According to the CPC, if a person refuses to give a blood or tissue sample for the purpose of determining paternity, and if the conditions set forth in the article are met, the judge may order the use of force to conduct the examination.” (19) These provisions are in conflict. “One view in the doctrine is that CPC Article 292 should prevail over TCC Article 284 because it came into force later and contains a special provision.” (20) “Another view is that TCC Article 284, being a substantive law provision, should be applied before CPC Article 292, especially since it states in its first paragraph that ‘the provisions of the Code of Civil Procedure shall apply, subject to the following rules.’” (21) The General Assembly of the Court of Cassation, however, holds that CPC Article 292 should be applied. “The General Assembly justifies its opinion on the grounds that CPC Article 292 came into force after TCC Article 284 and contains a special provision.” (22)
The TCC contains certain provisions relating to paternity and disputing paternity. Although “paternity” has multiple meanings, the TCC uses it in its narrow sense. Proper establishment of paternity is of great importance both for individuals and for public interest. Maternity is established through birth or adoption, while paternity is established through marriage to the mother, recognition, paternity judgment, or adoption. In practice, disputes generally arise regarding the establishment of paternity between the father and the child. Under the presumption of paternity, the father of a child born during marriage or within three hundred days after the termination of marriage is deemed to be the husband. “Likewise, the law deems that a child born within one hundred and eighty days from marriage or within three hundred days from the termination of marriage was conceived during the marriage.” (23) In cases of conflicting presumptions, unless proven otherwise, the husband in the second marriage is deemed to be the father. An action for disputing paternity may be brought by the husband, the child, the mother, other interested parties, or a guardian, within the statute of repose and before the competent and authorized court. The plaintiff bears the burden of proof. The judge is obliged to investigate all material facts ex officio. Although both the CPC and the TCC contain provisions regarding refusal to undergo paternity-related examinations, these provisions are in conflict. “While CPC Article 292 allows the use of force, TCC Article 284 only allows the court to draw adverse inferences.” (24) In legal doctrine, some authors favor the priority of the CPC, while others advocate for the TCC. The Court of Cassation, however, favors the application of the CPC, citing individual and public interest.
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Gözde İZGINLI
Uçar Law & Consultancy Office
Editor: Baver UÇAR (Attorney at Law)
REFERENCES:
(1) Cem Baygın, Soybağı Hukuku (1.Bası, On iki Levha 2010) 3. ; Mustafa Dural, Turhan Öğüz ve Mustafa Alper Gümüş, Türk Özel Hukuku Cilt 3 Aile Hukuku (17.Bası, Filiz Kitabevi 2022) 272. ; Emine Akyüz, Çocuk Hukuku Çocukların Hakları ve Korunması (7.Bası, Pegem 2020) 138. ; Hayrunnisa Özdemir ve Ahmet Cemal Ruhi, Çocuk Hukuku (1.Bası, Adalet, 2012) 341; Mehmet Erdem ve Aslı Makaracı Başak, Aile Hukuku (2.Bası, Seçkin 2022) 332; Sena Gözde Eğilmezgil, ‘Babalık Davası’(2020) 3(1) Selçuk Üniversitesi Adalet Meslek Yüksekokulu Dergisi, 136, 139.
(2) Baygın (n 3) 1; Eğilmezgil (n 3) 139 – 140.
(3) Dergipark
(4) Acabey (n 8)111; Baygın (n 3) 22; Dural, Öğüz ve Gümüş (n 3) 276; Özdemir ve Ruhi, ‘Çocuk Hukuku’ (n 3) 343; Öztan (n 6) 873.
(5) Baygın (n 3) 23-24.
(6) Dergipark
(7) Dural, Öğüz ve Gümüş (n 3) 61; Ergün ve Zeytin (n 14) 164.
(8) Acabey (n 8) 117; Dural, Öğüz ve Gümüş (n 3) 278; Hatemi (n 7) 151; Kemal Oğuzman ve Mustafa Dural, Aile Hukuku (2. Bası, Filiz Kitabevi 1998) 205; Öztan (n 6) 878.
(9) Baygın (n 3) 50; Dural, Öğüz ve Gümüş (n 3) 295-296; Erdem ve Makaracı Başak (n 3) 338; Hatemi ve Serozan (n 8) 307; Öztan (n 6) 888-889; Paksoy (n 17) 369.
(10) Hukuk Muhakemeleri Kanunu, Kanun Numarası: 6100, Kabul Tarihi: 12.1.2011, RG 4.2.2011/27836.
Ali Cem Budak ve Varol Karaaslan, Medeni Usul Hukuku (2.Bası, Adalet 2018) 42; Hakan Pekcanıtez, Oğuz Atalay ve Muhammed Özekes, Medeni Usul Hukuku (8.Bası, On İki Levha 2020) 67; Murat Atalı ve İbrahim Ermenek, Medeni Usul Hukuku (2.Bası, Seçkin 2021) 91.
(11) Dural, Öğüz ve Gümüş (n 3) 291; Öztan (n 6) 886.
(12) Dergipark
(13) Akıntürk ve Ateş (n 14) 339; Dural, Öğüz ve Gümüş (n 3) 286; Hatemi (n 7) 151; Gençcan (n 6) 1109; Oğuzman ve Dural (n 22) 212; Özdemir ve Ruhi, ‘Çocuk Hukuku’ (n 3) 346.
(14) Özdemir (n 23), 44; Öztan (n 6) 879.
(15) Kılıçoğlu (n 7) 418; Öz (n 37) 332; Öztan (n 6) 889.
(16) Dursun (n 46) 400; Baygın (n 3) 42; Dural, Öğüz ve Gümüş (n 3) 292; Kılıçoğlu (n 7) 427.
(17) Baygın (n 3) 32; Dural, Öğüz ve Gümüş (n 3) 290; Gümüş (n 56) 575; Paksoy (n 17) 363.
(18) Baygın (n 3) 45; Dural, Öğüz ve Gümüş (n 3) 280; Özdemir ve Ruhi, ‘Çocuk Hukuku’ (n 3) 344.
(19) Öz (n 37) 322.
(20) Kılıçoğlu (n 7) 413; Öz (n 37) 322-323; Öztan (n 6) 894.
(21) Dural, Öğüz ve Gümüş (n 3) 282.
(22) Yargıtay HGK 1927/1471, 18.10.2018.
(23) Dergipark
(24) Dergipark
