MATERNAL INHERITANCE OF A CHILD BORN OUT OF MARRIAGE
Pursuant to Article 282 of the Turkish Civil Code No. 4721 in force; “The kinship between the child and the mother is established at birth”. In other words, whether the child is born within the marriage union or out of marriage, he/she becomes related to his/her mother and his/her mother’s relatives at birth and also becomes an heir.
PATERNAL INHERITANCE OF THE CHILD BORN OUT OF MARRIAGE
Pursuant to the second paragraph of Article 282 of the Turkish Civil Code No. 4721 in force; “Children born within the marriage union are bound to their fathers (just like their mothers) by paternity at birth”. In other words, since children born within the marriage union are bound to their fathers by paternity at birth, they become heirs to their fathers at birth.
However, if they are born outside the marriage union, they are not yet related to their father by paternity. For this reason, they can become heirs to their fathers in case of the realisation of various situations. These situations are explained in detail below. However, before proceeding to these, it is useful to know what changes have been made in the law on this subject (paternal inheritance of the child born out of wedlock). In this regard, we will make a comparison between the old law and the new law.
The first paragraph of Article 443 of the Old Civil Code stipulated that a child born out of wedlock could be heir to his/her father only if the child’s father and the child’s father had established an inauthentic line of descent. In other words, the child could only be heir to his father if he was recognised by his father or was bound to his father by a paternity decree with personal consequences.
Children who could not or could not establish an illegitimate line of descent with their fathers through one of these ways could not inherit their fathers and paternal relatives, even if their fathers had been recognised through a paternity suit with material consequences.
With the decision of the Constitutional Court dated 11.9.1987 and numbered E. 1987/1, K. 1987/18, the first paragraph of Article 443 of the former Civil Code was found unconstitutional and cancelled. The decision of the Constitutional Court cancelling the first paragraph of Article 443 of the former Civil Code is as follows:” ….
Although Article 10 of the Constitution stipulates that everyone is equal before the law and that no person, family, group or class shall be granted privileges, the provisions of Article 443 of the Civil Code, which are requested to be cancelled, stipulate that in order for children whose paternity is not true to be heirs through their father, their father must have recognised them or the court must have ruled paternity, which is contrary to Article 10 of the Constitution.
This is because, while the child whose paternity is true in terms of the father will be able to receive his right to inheritance in full, the child whose paternity is not true will not be able to receive a share of his father’s inheritance, even though he has no fault that can be attributed to him, if he has not been recognised by his father or if paternity has not been adjudicated by the court because the paternity suit has not been filed in due time.”
In other words, the Constitutional Court cancelled the first paragraph of Article 443 of the Former Civil Code in 1987 by finding it unconstitutional that the children whose fathers had been established (through a paternity suit with material results), but who were not connected to their fathers (because they were not recognised or the lawsuit filed was not of personal consequence) were not heirs.In addition, the second paragraph of Article 443 of the former Civil Code regulated that if the children with true lineage and children with untrue lineage were heirs together on the father’s side, they would be heirs in different proportions. In other words, even if an untrue line of descent was established, when the child with untrue lineage was heir together with his father’s children with true lineage, he received half of the inheritance compared to those with true lineage.
With the decision of the Constitutional Court dated 11.9.1987 and numbered E. 1987/1, K. 1987/18, the second paragraph of Article 443 of the Civil Code, which regulates the different proportions of inheritance of the children with true lineage and children with untrue lineage when they inherit together from their father’s side, was found unconstitutional and cancelled. The decision of the Constitutional Court cancelling the second paragraph of Article 443 of the former Civil Code is as follows: “…….. Pursuant to the second paragraph of Article 443 of the Civil Code subject to the objection, if the children with improper ancestry or their descendants are found together with the children with proper ancestry of their fathers, they shall receive half of the amount that may correspond to a child with proper ancestry or its descendants.
Accordingly, it is evident that the rule of sharing the inheritance in pairs is aimed at favouring the children born in marriage rather than the public interest. Even though it can be argued that this is the result of giving more value to the children born in marriage and the principle of favouring the institution of marriage, these reasons cannot be the basis for creating a distinction.
Indeed, the fact that this different application does not prevent unions outside marriage is evident from the number of amnesty laws enacted since the adoption of the Civil Code, which provide for the administrative correction of descent, and from the number of unions that are not based on the marriage contract. In this way, since it has been revealed that the rule subject to objection causes discrimination and restriction in the inheritance rights of children born outside marriage, for the reasons explained, the said provision is contrary to Article 35 of the Constitution.” The
Constitutional Court cancelled the second paragraph of Article 443 of the Former Civil Code on the grounds that it is contrary to the principle of equality before the law and Article 35 of the Constitution, since it means that the child born within marriage will be superior to the child born outside of marriage. The court concluded that children born out of wedlock should receive equal shares with children born in wedlock.
Article 498 of the Turkish Civil Code No. 4721, which entered into force on 01.01.2002 and is still in force, has tried to protect the right of inheritance of the child born out of marriage. When the new Turkish Civil Code is compared to the old Turkish Civil Code as explained above, it is clear that it better protects the right of inheritance of children born out of marriage.
Article 498 of the Turkish Civil Code Pursuant to Article 498 of the Turkish Civil Code; “Children born out of wedlock and whose paternity is established by recognition or judgement of a judge shall be heirs in terms of paternity as if they were married relatives.” As it can be understood from the text of the article, the paternal inheritance of the child born out of marriage is conditional upon the establishment of paternity. The establishment of paternity between the father and the child is possible in three ways. These are listed in Article 282 and Article 498 of the Turkish Civil Code. According to this, paternity
The subsequent marriage of the mother and father,
By judgement of a judge (paternity action)
It is established by the father’s recognition of the child (recognition case).
However, the recognition of a child born out of wedlock is only possible if there is no paternity relationship between the child and another man. If the paternity is established between the child and another man (the mother marries a man other than the majority father), the existing paternity will have to be cancelled in order to establish paternity with the biological father (the real father of the child), as there will be a legally valid paternity.
In short, if paternity is established between the father and the child born outside the union of marriage, the child becomes an heir in terms of the father, just like the in-marriage relatives. In other words, the child born outside the union of marriage shall inherit the same share (proportion) as the child born within the union of marriage.
CONCLUSION
Children born out of wedlock inherit directly from their mother and her relatives upon birth. However, the situation is slightly different for the father. In order for the child born out of wedlock to be an heir to his/her father, the law requires that paternity is established with his/her father. If the paternity bond with the father is not established, the child will not be able to claim rights from his father’s inheritance, that is, he will not be an heir to his father. Paternity will be established upon the realisation of one of the three conditions listed in Article 282 and Article 498 of the Turkish Civil Code. These are; the subsequent marriage of the mother and father, the decision of paternity as a result of the paternity case or the recognition of the child by the father (Recognition case).
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