In the case of the death of one of the spouses, the Article 181 of the Turkish Civil Code (“TCC”) regulating the verdict of the court, the standing of the heirs of the deceased spouse and the heirship of the surviving spouse, is as follows:
|TCC Art. 181: (1) Divorced spouses may not be legal heir of each other with this capacity and lose the rights provided them through testamentary dispositions which have been made prior to divorcement, unless otherwise understood from disposition.
(2) While divorce case is continuing, in case one of legal heirs of deceased spouse continued to the case and being evidenced fault of the other spouse, provision of the above paragraph is applied too.
In the event that one of the spouses dies while the divorce proceedings are pending, the heirs of the deceased spouse can proceed with the case, solely in terms of determining the neglect.
The decision of the 2nd Civil Chamber of the Court of Cassation in this matter is as follows:
|2nd Civil Chamber of the Court of Cassation Case No: 2019/4155 Decision No: 2019/11747
“…According to the register, plaintiff … is understood to have died on 16/11/2019. In this circumstance, the marriage ended at the moment of death, leaving the divorce proceedings devoid of essence. However, since the heirs could continue the trial in terms of the determination of the negligence, it was necessary to decide that there was no place to decide on the case which due to death, by continuing the trial by the court and that the ruling shall be overturned in order to make a decision on the negligence, in accordance with Article 181/2 of the Turkish Civil Code…”
There is not mandatory common cause between the heirs of the deceased spouse; only one of the heirs is sufficient to proceed with the case.
Upon death, a notice is issued by the court to ask the deceased spouse’s heirs whether they will follow suit.
If the heirs do not wish to proceed with the case in terms of defect, the court shall accept the filed case as non-filed.
If, as a result of the adjudication, it is decided that the surviving spouse is negligent, the surviving spouse cannot be the heir of the deceased spouse. The court’s decision on the negligence is retrospective. (e.g. a testament or testamentary contract made before death, in favor of the surviving spouse, will also be void)
If the court rules that the surviving spouse is not negligent, the surviving spouse may become the heir of the deceased spouse.
What Happens If One of The Parties Dies While the Case Is Examined Before the Court of Appeal?
The court of appeal cannot conduct a rehearing; it shall decide that the file should be returned to the court of first instance for the purpose of fulfilling the requirements and procedures as described above.
The full text of the decision (Case No: 2019/4155 Decision No: 2019/11747) of the 2nd Civil Chamber of the Court of Cassation can be accessed here.
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