Turkish Muslim Legal Pluralism

Turkey is, like Pakistan, a Muslim majority country. Moreover, it is also a Sunni and Hanafi majority country. Despite the fact that the Civil Code is purely sec­ular and does not recognise any Muslim laws, similar to Pakistan, unofficial Muslim laws have continued to co-exist, defying the staunchly secularist ex­pectations of the Kemalist nation builders.^[420]

The pressing aim of the Turkish Republic’s modernising and secularising founders, the hegemonic Kemalist elite, was to transform the ‘backward’, tradi­tional, and religious society into a modern, secular and ‘civilised’ one.

Hooker argues that Turkey’s experience “is an excellent example of a state undertaking the process of legal importation as a result of fundamental revolution, and under the impetus of that upheaval, attempting to establish a completely clean legal sheet”.^{[421] [422] [423] [424] [425] [426] Thus, the Minister of Justice of the time, Mahmut Esat Bozkurt, “declared that what he desired was not reform but a revolution of Law”.89}

The transformation of society would start with the very smallest unit, the family.

There are a number of differences between the secular civil law of Turkey and the unofficial Muslim laws. These differences include the secularisation of the marriage ceremony, the ban on polygamy and the secularisation of di­vorce proceedings. The new law gave both parties an equal right to sue for di­vorce. Talaq was no longer recognised. Divorce could only be granted by an official court.

Nevertheless, Muslim Turks have sought other ways to adapt their unofficial Muslim laws to the modern and secular milieu. They have reconstructed their unofficial laws to meet the demands of both official and unofficial laws.9³

3.1 Registration and Solemnisation of Marriage

Under the official law, civil-only marriages performed by authorised marriage officers are allowed and recognised. A marriage may be solemnised in accor­dance with any religious rites if the parties desire, but registration of marriage preceding such a solemnisation is necessary. Only after the celebration of the

civil marriage is a religious marriage (imam nikaht)^s4 permitted and the parties should present their marriage document to the imam before the religious mar­riage. Men and women who perform a religious marriage ceremony without having concluded the legal marriage contract are punishable.

Nonetheless, religious-only marriages have continued to take place. In the late 1980s and earlier 1990s, the State Planning Organization (spo) conducted a quantitative survey that is representative of the whole of Turkey (spo 1992). This comprehensive research was done with 18,210 randomly selected house­holds from urban and rural communities. The results were then generalised to apply to all Turkey. According to this research, the percentage of civil-only marriages was 9.56, religious-only marriages was 4.89, and both civil and reli­gious marriages was 84.92.^{[427] [428] A survey in 1998 based on data from interviews conducted with 599 women in 19 settlements in Eastern and Southeastern Anatolia found that the percentage of civil-only marriages was 5.8, religious- only marriages was 19.6 and both civil and religious marriages was 74.4[429]}

Another quantitative study9^[430] that surveyed 462 married women aged be­tween 15 and 49 in an East Anatolian city found that while 95% of monoga­mous women were both officially and unofficially married, only 4.6% of them had a religious-only marriage. As for the polygamists, the figures were respec­tively 61.5% and 38.5%. 100% of all women had a religious marriage.

An official report from 2014 found that in 2011, 2.6% of marriages in Turkey were conducted with a religious ceremony only, along with 3.4% of marriages conducted with a civil ceremony only, and 93.9% of marriages had both a civil and a religious ceremony^{[431] [432] The Turkish Statistics Institute also recently found that 1.1% of marriages in Turkey were conducted with a religious ceremony only. 1.8% of marriages were conducted with a civil ceremony only, and 97.1% of marriages had both a civil and a religious ceremony.99 In the age group of 15-19, 81.85 of those who are married had both official and unofficial marriages while 0.5% had civil-only and 17.7% religious-only marriages.[433] [434] [435] [436] [437] [438] [439] [440] Most prob­ably these religious-only marriages were child marriages that could not legally be solemnised.}

There are some unofficial marriage (imam/religious-only marriage) cases dealt with by the secular Turkish courts. Several of these cases have reached the top level of the Court of Cassations (Yarg1tay).101 Case law shows that the Court of Cassations accommodates unofficial religious marriages, “when the matter at hand is not related to giving effect to the marriage but, for instance, to the law of obligations where the Court does not have to go into the issue^,,.ιo² For instance, for reasons of justice, the Court of Cassations has, “extended the right to compensation for death in work-related accidents to the unmarried cohabiting woman, albeit on a different basis from the married woman^,,.ιo³ In these cases, women who were only married with a religious marriage applied to the courts for insurance claims after the deaths of their husbands and the Courts have generally decided for compensation, albeit for lower percentages compared to official wives.^κι4

In May 2015, the Constitutional Court annulled the Criminal Code's article that provided that, for an illegal, religious-only marriage ceremony, the bride, groom, and imam who officiated the marriage could be sent to jail for two to six months.10⁵ The majority (12 to 4) opinion argued that since it is not illegal for two persons to live together without a civil marriage, it would be discrimi­natory to punish two persons living together after a religious-only marriage.^ω6 The Constitutional Court had unanimously ruled the opposite in a 1999 case.^ω7 The Constitution has not changed on this matter between 1999 and 2015 but the membership structure of the Court did. It is no longer controlled by the Kemalists, since the majority of the members have been appointed by Islamist presidents, Abdullah Gul and R. Tayyip Erdogan, since 2007.

3.2 Age of Marriage: Child Marriages

After the establishment of the Turkish Republic in 1923, the age of marriage was adopted from Swiss law as being 18 years for males and 17 years for females.

The official law is in conflict with traditional Muslim laws. In the eyes of many traditional Muslims, when a girl or boy reaches puberty, he or she can marry whatever his or her age. Quantitative data show that people in many cases do not take into account the provisions of the Civil Code. In these cases, families at first employ only Muslim laws and solemnise marriages according to Muslim laws. Married only by imam nikahι, the spouses' cohabitation is le­gitimate for the community. After reaching the officially permitted age, they register their marriages with the state if they want. Although it is considered a crime of rape to have sexual relations with a child under the age of 15 years, in religious-only marriages such behaviour is usually not reported as a crime, and no criminal action is taken. This is one of the obstacles to the prevention of child marriages.^{[441] [442] [443] [444]}

Even official census data show the reality of under-age marriages. The above-mentioned State Planning Organization survey shows that the percent­age of under-age marriages (under 16 years) in Turkey was about 9% in 1991.10⁹ Only 0.37% of all existing marriages were conducted at or below the age of 12, 0.90% at the age of 13, 2.19% at the age of 14 and 5.38% at the age of 15.110 In 1994, according to the State Institute of Statistics (TurkStat), in the age group of 12-14, 0.54% of females and 0.88% of males were married.^m It must be empha­sised that these figures are not reflective of the true proportion of experience since most of the time people do not report such illegal marriages.

In 1998, a survey based on data from interviews conducted with 599 women in Eastern and Southeastern Anatolia showed that 16.3% of women living in the region were married under the age of 15 and in a religious ceremony.^{[445] [446] [447] [448] [449] [450] [451] [452] A decade later, another study underlined that in 2008, 14% of all women in Turkey aged 20 to 24 years were married before the age of 18.n3}

Another quantitative survey that surveyed 462 married women aged be­tween 15 and 49 years, found that, “(t)he percentage with age at first preg­nancy of ≤14 years was 11.5% for women in polygamous marriages and 10.2% for women in monogamous marriages^,,.ⁿ⁴ 17.3% of polygamist women were married at or before the age of 14 and the figure for the monogamist women is 20.3%. About 10% of these women had their first pregnancies either at the age of 14 or below.11⁵

The European Commission of the European Union reported in 2010 that early and forced marriages remain a cause for concern. There are no reliable figures on the incidence of such marriages. Women's organisations report de­terioration in their dialogue and their cooperation with relevant public insti­tutions, at both central and local levels.ⁿ⁶ With regard to gender equality and women's rights, the legal framework is broadly in place but sustained further efforts are needed to turn this legal framework into political, social and eco­nomic reality.11⁷ A report by the United Nations stated in 2014 that child mar­riage is practiced in all regions of Turkey, but that there is regional variation. Whereas teenage childbearing (taken as a proxy for child marriage) is highest in Central East Anatolia (10%), it is lowest in the East Black Sea Region (3%). Teenagers in rural areas are more likely than teenagers in urban areas to have started childbearing (9% and 5%, respectively).^ø But child marriage is not only a rural phenomenon or limited to uneducated & poor individuals. For in­stance, former Turkish President Abdullah Gul married his wife when she was fifteen.ⁿ⁹ At the time, he was a PhD student at Istanbul University and his wife was a high school student in Istanbul.

Hacettepe University in Ankara conducts “The Turkey Demographic and Health Survey” every five years. It has a nationally representative sample sur­vey. The target sample size of the TDHS-2013 was set at 14,496 households. In TDHS-2013, interviews were completed with 11,794 households and 9,746 women in the 15-49 age group in 641 clusters. The survey found that 0.2% of the females in Turkey gave birth to a child at the age of 16. 0.3% of them were pregnant with first child and 0.5% of them began childbearing at the age of 16.^{[453] [454] [455] [456] [457] [458]} The survey showed that, among women aged 25-49, 22% of women in Turkey married by age 18 and 4% of all women in Turkey got married before their 15th birthdayi21 According to the state's Turkish Statistics Institute (TurkStat, τuiκ), 28.2% of women who got married in 2016 in Turkey were underage, while the ratio of men in the same category was 5.6%.^m

In 2016, the EU repeated its earlier criticisms: early and forced marriage continued to be a major concern, including the situation among the Syrian refugee population.12³

3.3 Polygamy

The 1926 Civil Code rendered polygamy impossible by requiring that both pro­spective spouses be single at the time they apply for a marriage certificate.^⁴ When polygamy was abolished by the Civil Code in 1926, the Muslim laws justi­fying polygamy became officially null and void. The official law does not allow polygamous marriage under any circumstances. If a person is a party to an ex­isting marriage, he or she cannot validly contract a second or subsequent mar­riage. Articles 92, 113, 114, 115 of the Civil Code 1926 and Article 130 of the Civil Code 2001 provide that no person shall marry again unless he or she proves that the earlier marriage has been dissolved by death, by divorce, or by a decree of nullity. Article 145 of the Civil Code 2001 states that a second marriage is invalid if a person still has a spouse living at the time of the subsequent mar­riage. In other words, the second marriage is absolutely void, or void ab initio.

Similarly to religious-only marriage cases and child marriages, the solem­nisation of polygamous marriages has also unofficially continued in Turkey. A survey that included 599 women aged 14 through 75 in South-eastern and Eastern Turkey showed that while 89.4% of them had monogamous marriages, 10.6% were living in polygamous partnerships.^⁵

The Economist reported in 2005 that it is difficult to know how many men have more than one wife in Turkey, because it is illegal. The practice is known to be especially common in Kurdish regions, where life is still largely organised around tribal structures and Islam, and where status and power are measured in numbers. Across rural Turkey, the authorities turn a blind eye to polygamy.^{[459] [460] [461] [462] [463] [464] [465] [466]}

In a 2010 survey that interviewed 462 married women aged between 15 and 49 years, it was found that “while 410 (88.7%) women were in monogamous marriages, 52 (11.3%) were in polygamous marriages”.^⁷ It was also found that 78.2% of women in polygamous marriages and 57.3% of women in monoga­mous marriages were illiterate, and polygamy significantly decreased with literacy.12⁸ However, similar to child marriages, polygamy is not confined to rural areas or to uneducated and poor individuals. Mr. Ali Yuksel made the headlines when he was appointed as advisor to the Prime Minister Erdogan in June 2010. He is married to three women and declared his intentions to marry a fourth. Mr. Yuksel's polygamy already made headlines in 2004, but the Turkish media highlighted the issue of his polygamous lifestyle when appointed by Erdogan in 2010.12⁹ The social anthropologist Jenny White who has worked on Turkey since 1970s states that “polygamy is particularly common in the East, although I have encountered several examples in both the poor neighbour­hoods of Istanbul and among the educated IslamistsV³⁰ She reports that the legal wives are devastated by the situation but they cannot divorce or leave their husbands. Many of them are poor and do not have credible job prospects after several years of being housewives. For the educated ones, it would be seen as “treason to the cause” (daWa, jihad) to make a scene about polygamy which is, after all, allowed in Islam. Even educated Islamist women cannot risk losing the protection and goodwill of their community.131

A recent study aiming to investigate the sociodemographic characteris­tics, sexual function, and psychological status of polygamously and monoga­mously married men surveyed 35 polygamous and 45 monogamous men in Kahramanmara§ Province between April 2011 and February 2014.132 The main reasons for multiple marriages reported by polygamous men, in descending order, were: 1) decreased satisfaction of sexual desires by a wife (37.1%); 2) fall­ing in love with the second wife (22.8%); and 3) incompatibility with the first wife (17.1%).133

The case law shows that the courts have had to deal with some polygamy cases.^{[467] [468] [469] [470] [471] [472] In some cases, courts treat the second wife with some recognition de­spite the fact that she was only married unofficially. In one case, the judge held that the (unofficial) second wife should be paid some compensation from the insurance company because of the death of her unofficial husband at work.i3?}

With the increasing authoritarianism and Islamist populism of the ruling AKP, Islamists' attitudes about polygamy have been gradually changing and they find it easier to talk positively about polygamy in the public sphere. For instance, on 18 June, 2016, on pro-AKP TV channel Kanal A, four male panel­lists discussed if Muslim men are/were free to observe their religion in Turkey. Two of them argued that “No, Muslims are not free. For example, they cannot get married according their religion. The laws of secular Turkey dictate just one wife, so Muslims cannot take a second or third".i3⁶ In another case, an AKP supporter, Hasan Guray Ozuyer, advised the AKP supporters to have polyga­mous marriages with wives of the imprisoned Gulen Movement participants who have resisted akp's increasing Islamism and authoritarianism. Mr. Ozuyer was criticised that his remarks were reminiscent of the practices of the ISIS militants who forcefully take women (already married or not) in the territories they occupy as their second, third and fourth wives. After an outpouring of criticism on Twitter, Mr. Ozuyer had to close his Twitter account.^⁷

This relaxation has also influenced bureaucrats. Seval Yildirimi3⁸ reports that when she inquired with the Turkish Institute of Statistics (TurkStat) in November 2011 about the official numbers on the rate of polygamy in Turkey, she was told that since polygamy is outlawed in Turkey, there were no official statistics on polygamy. But recently the government started publishing official statistics on the rate of polygamy in Turkey. In 2013, the Turkish Parliament's Committee on Equality for Women and Men released official numbers on women's status, including numbers on polygamy. According to this, as of 2013, 372,000 women were in polygamous marriages across Turkey^rw

In May 2015, the Islamist-dominated Constitutional Court nullified the law punishing religious-only marriages. Experts raised concerns that this will increase the number of polygamous marriages. Some experts and activists have noted that the influx of Syrian refugees has revived the tradition of po­lygamy. In nearly 80% of all polygamy cases, financial security and dowry are the main reasons.^[473] Another report^{[474] [475] [476] [477] [478] confirmed that the unfortunate situa­tion of Syrian refugees in Turkey is fuelling a rise in polygamy and argued that the government is turning a blind eye to the problem. Just in the town of Kilis, with its population of 230,000, at least 5,000 religious ceremonies have been performed between 2011 and 2014, wedding already married Turkish and Syrian men to Syrian women. According to Nur Burhan, a Syrian gender researcher with the Centre for Civil Society and Democracy, the majority of second wives are child brides sold to Turkish and Syrian men by their own families. The fami­lies get money for having their daughters married. One prosecutor stated that one of the main problems is that, until May, imams were not allowed to per­form religious marriages before a civil marriage had taken place but that law has been repealed, making it legal for imams to conduct “imam nikaht” without punishment.142}

The percentage of polygamous marriages in Turkish society has always been relatively low.^M3 The data from the 1885 and 1906 Ottoman Censuses in Istanbul show that 2.29% of all married men in Istanbul were married po­lygamously. The percentage is 2.51% in the 1885 census and 2.16% in the 1906 Census.144 It seems that the state's social engineering and modernisation have not made much impact on the rate of polygamy.

3.4 Divorce

The Civil Code of 1926 gave husband and wife an equal right to sue for divorce. Talaq was no longer recognised. Divorce could only be granted by an official court on the ground that the marriage had irretrievably broken down.^M5 The Code did not allow for a divorce by collusion or mutual consent. However, Article 166 of the new Civil Code 2001 makes a divorce by mutual consent pos­sible again.

On the other hand, since marriages are religious, divorces are also made by talaq to terminate the religious marriage, the imam nikahι. There are also many limping marriage cases in Turkey where a woman obtains a civil divorce, yet she thinks that she is not divorced by her husband in religion and her former husband blackmails her or simply prevents her re-marriage by not pronounc­ing talaq}-46 There is another phenomenon regarding unofficial imam nikahι marriages and its abuse. In this scenario, young people, generally university students, have an ‘imam nikahι^,-only marriage without informing their parents and thus try to legitimise their sexual relationship. It is called hidden (gizli) nikah. There is no recognition of their imam nikahι-only marriage by the of­ficial authorities. The community does not know either. If the man walks away, the woman would have no rights whatsoever before the courts under the of­ficial law. In the case of other unregistered marriages, the families and com­munity know that the couple are married, albeit unofficially. Thus, there is a Gemeinschaft pressure on the husband and his family to respect the rights of the wife. Nevertheless, in the case of hidden marriages, the woman is left to the whims of the husband.^{[479] [480] [481] [482]}

There are a few cases where the courts have had to deal with talaq. In an ear­lier case, the Court of Cassation did not recognise the talaq, stating that there is only one type of dissolution of the marriage under the Civil Code.^w8

In a 2003 case, the Court of Cassation dealt with an under-age marriage. The woman unofficially married a man even though she was not at the legally pre­scribed age for marriage. They lived for some years as ‘husband’ and ‘wife’ with a view to having an official marriage when they reached the legal age. They confirmed before the court that they illegally got married before they reached the legal age limit. Nevertheless, before they could officially register their ‘mar­riage’, they were unable to get along with each other and got ‘divorced’. The woman asked for financial compensation which the ‘husband’ rejected. The Court of Cassation held that since the woman had entered the ‘marriage’ as a virgin, the man’s act was unjust, and she deserved some financial compensa­tion. The Court underlined that “the petitioner’s unofficial marriage does not exist legally but social values that paved the way for this marriage put a burden of loyalty on an unofficial marriage”^⁹

There is abundant data on religious-only marriages (imam nikahι) in Turkey but we do not know much about any incidents of religious-only (talaq) divorces. Other than anecdotal evidence, newspaper reports and some court cases, there is no field research, survey or statistics on this issue. It is obvious that more research on this subject is needed.

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