What Is Absenteeism?
The legal termination of the personality of a person, whose death is not considered certain, but is considered probable and whose body has not been found, by the court after a certain period of time has passed, is called absenteeism.
According to the Turkish Civil Code, the conditions for the decision of absenteeism arise in two ways:
a-Disappearance in danger of possible death;
upon the request of the persons concerned, the court in question makes a decision of absenteeism after 1 year has passed since the disappearance of this person.
b-The person has not been heard from for a long time;
in this case, 5 years have passed since the last news was received from the person, and the court in question makes a decision of absenteeism upon the request of the person concerned.
Pursuant to Article 32 of the Turkish Civil Code; “If there is a strong probability of the death of a person who has disappeared in danger of death or from whom no news has been received for a long time, the court may decide on the absence of this person upon the application of those whose rights depend on this death. The competent court is the court of the last place of residence of the person in Turkey; if he/she has never resided in Turkey, the place where he/she is registered in the civil registry; if there is no such registration, the court of the place where his/her mother or father is registered.”
Accordingly, the competent court for the absentee judgement is the “Civil Court of Peace”. The competent court is the last place of residence of the person in Turkey; if he/she has never resided in Turkey, the place where he/she is registered in the civil registry; if there is no such registration, the court where his/her mother or father is registered.
Following the fulfilment of the conditions required for the decision of absenteeism, upon the application of the persons concerned (the persons whose rights are dependent on the decision of absenteeism, their heirs, will creditors, and if these persons do not exist, the state) to the competent and authorised court, the court will issue an announcement decision.
The purpose of the aforementioned announcement decision is to ensure that the person who will be decided absent or those who have information about him/her reach the court for the purpose of being heard. Following the issuance of the announcement decision, the court shall decide on a waiting period of not less than 6 months for the person to be decided absent or the persons who have information about him/her to provide information. If, after the expiry of the time period, the person to be decided absent has not appeared, no news has been received from him/her, and the date of his/her death has not been determined, the court will issue an absentee judgement. Otherwise, the request for absence shall be dismissed.
The property of the absent person subject to inheritance shall be delivered to the heirs for a certain period of time and against a guarantee. The guarantee to be given by the heirs is limited to a certain period of time:
-5 years from the delivery of the property subject to inheritance in case of disappearance in danger of death,
-In the event that no news is received from the person, the heirs of the person to be decided absent for a period limited to 15 years from the date of the last news, are obliged to show a guarantee.
If the absentee appears within these periods, the heirs shall return the share allocated to them from the estate to the absentee. If the absentee does not appear within these periods or if the absentee reaches the age of 100 in the meantime, the assurances given in this regard are terminated; the heirs are deemed to have definitively acquired the inheritance allocated to them from the estate.
At the same time, a judgement of absence does not automatically terminate a marriage. The spouse of the person who has been declared absent may apply to the court and request the dissolution of the marriage for this reason. The spouse of the absent person appears to be married in terms of marital status and this marriage must be annulled by a court decision. Competent court in this matter is the Civil Courts of First Instance.
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