Action for Judicial Emancipation (Kazai Rüşt)

Majority and Capacity to Act

The legal provision on this matter is as follows:

Turkish Civil Code Article 10 – “Every adult person who has the capacity to discern and is not under restriction has capacity to act.”

Turkish Civil Code, Art. 10

From this article we understand that reaching majority is not in itself sufficient to have capacity to act. For a person who has reached majority to have capacity to act, he or she must also have the capacity to discern and must not be subject to legal restriction (interdiction). The answer to the question of what the legal position of a person’s capacity to act will be where one or more of these elements is absent is “The Concepts of Legal Capacity and Capacity to Act under the Law of Persons “ addressed in our article on this subject.

Elements jointly required for capacity to act:

• Ergin olmak
• Having the capacity of discernment
• Not being under guardianship

When Does Majority Begin?

Turkish Civil Code Article 11 – “Majority begins upon completion of the age of eighteen. Marriage confers majority.” The decision reads as above.

Turkish Civil Code, Art. 11

From the wording of the law we understand that majority, more commonly referred to among the public as “coming of age”, is as a rule acquired when a person reaches the age of 18. We say “as a rule” because, as an exception, a person will acquire majority by marrying before the age of 18. The following point should be noted here:

In our law, the marriageable age is regulated in two separate forms: the ordinary and the extraordinary marriageable age. As set out in Article 124 of the Turkish Civil Code, the ordinary marriageable age is seventeen, without distinction between men and women, and the extraordinary marriageable age is sixteen, again without such distinction.
A person who has reached the age of seventeen may marry with the permission of his or her legal representative, whereas a person who has reached the age of sixteen may marry only by court decision.

Turkish Civil Code Article 124 – “A man or woman may not marry until he or she has reached the age of seventeen. However, the judge may, in extraordinary circumstances and for a very important reason, permit a man or woman who has reached the age of sixteen to marry. Where possible, the mother and father or the guardian shall be heard before the decision.” it provides.

Turkish Civil Code, Art. 124

Conditions Required to Bring an Action for Declaration of Majority

If a person who has not yet reached the age of 18 and is not legally of age wishes to be declared of age before reaching that age, he or she may be declared of age by the court, provided that he or she has reached the age of fifteen, the consent of the parent holding custody has been obtained and he or she has an interest in being declared of age. Where the person to be declared of age has two parents holding custody, the consent of both must be obtained. If the person is under guardianship and the guardian of the restricted person brings this action, the permission of the guardianship authority will also be required at this stage. The relevant statutory provision is as follows:

Turkish Civil Code Article 12 – “A minor who has completed the age of fifteen may be declared of age by the court at his or her own request and with the consent of his or her guardian.”

Turkish Civil Code, Art. 12

The conditions listed in the article are, in brief, as follows:

• Age: Having reached the age of fifteen
• Consent: Consent of the parent holding custody; where there are two such parents, the consent of both
• Menfaat: Having an interest in being declared of full age
• Vesayet: If the person is under guardianship, the additional permission of the guardianship authority

As to what interests a person may have in being declared of age, the examples are numerous, but some are as follows: where a minor whose parent has died wishes to manage the parent’s business, or wishes to establish a business of his or her own entirely independently of the parent, or wishes to renounce, with permission, the citizenship of the country of which he or she is a national, and in other situations where the person must be of age to carry out such acts, the person is deemed to have a justified reason to be declared of age.

Consequences and Limits of Being Declared of Full Age

Questions such as from when the court’s decision in this respect will take effect, or when majority will be acquired, are answered in Article 470 of the Turkish Civil Code “Where majority has been declared by the court, the court shall at the same time determine and announce the date on which the minor shall attain majority.’ Majority is acquired upon the court decision becoming final.” as set out above.

As mentioned above, a person who has been declared of age acquires full capacity to act. Nevertheless, in certain cases the law specifically requires a certain age to have been reached in order for a person to carry out certain acts and transactions; in order to carry out such acts and transactions, the person who has been declared of age must have reached that age. Otherwise, he or she will not be able to carry them out. For example, a person declared of age by court decision may hold a driving licence only upon reaching the age of 18. By being declared of age, the person does not acquire rights that would be acquired upon reaching the age of 18, such as the right to vote, the right to vote and stand for election, or the right to marry. For these to exist, the age prescribed by law must have been reached and any other conditions, if applicable, must also be fulfilled.

• Driving licence
• Right to vote
• Right to vote and stand for election
• Right to marry

Parties and Court in an Action for Declaration of Majority

Parties to an Action for Declaration of Majority

In actions for judicial emancipation, since the person who wishes to be declared of age has no capacity to act, the claimant will be that person’s parent holding custody or guardian. Since the relevant law lists the action for judicial emancipation among the actions without a respondent, there will be no defendant party in this action.

Court with Subject-Matter and Territorial Jurisdiction in an Action for Declaration of Majority

Actions for judicial emancipation are non-contentious proceedings, and the Civil Courts of Peace have jurisdiction over them. The court having territorial jurisdiction is the court of the domicile of the person wishing to be declared of age. Article 382/2-a-1 of the Code of Civil Procedure No. 6100 provides that an action for a decision on emancipation (kaza-i rüşt) is a non-contentious matter. Furthermore, Article 383 of the Code of Civil Procedure No. 6100 provides that, unless otherwise stipulated, the civil court of peace has jurisdiction over non-contentious matters. In that case, the dispute must be heard and concluded before the civil court of peace.

Sample Petition for Declaration of Majority

TO THE (ANKARA) ……. CIVIL COURT OF PEACE

CLAIMANTS : Father’s name and surname, acting as parent holding custody (Turkish ID No: …)
Mother’s name and surname, acting as parent holding custody (Turkish ID No: …)

DEFENDANT : No respondent

SUBJECT : Our request is for a decision on judicial emancipation to be rendered.

EXPLANATIONS :

1. Our son ……. lives separately from us and was born on …/…/…. .

2. Our son, who has reached the age of 17, wishes to live apart from us in order to study at university and support himself independently, and to this end he must first be declared of age by the court so that he can sit the Foreign Student Examination known as YÖS in order to gain a place at a university. The fact that he is not of age is causing problems for our joint child in the procedures concerning him that he must carry out at the General Directorate of Population and Citizenship Affairs in order to sit the examination. Our son, who under normal circumstances carries out all his affairs on his own, must renounce Turkish citizenship in order to sit the YÖS examination, and for this procedure the consent of the parent is not sufficient; the Ministry may grant permission to renounce or a certificate of renunciation to a person who wishes to renounce citizenship of his or her own free will if that person meets conditions such as being of age and having the capacity to discern, having acquired the citizenship of a foreign state or there being convincing indications that he or she will acquire it, and so on. For this reason, in order to be able to renounce Turkish citizenship with permission, our joint child, who has the capacity to discern but cannot meet the condition of being of age, must be declared of age by the court.

3. There is no health problem preventing our son from being declared of age, and we, as the parents holding custody, also give our permission.

4. Our son, who is able to manage his own affairs, needs a decision by your court declaring him of age so that he can also carry out his official procedures himself.

LEGAL GROUNDS : TCC, Code of Civil Procedure (HMK) and other relevant legislation

LEGAL EVIDENCE : Civil registry records, foreign national identity card, medical report, letter of consent from the family and other evidence.

CONCLUSION AND REQUEST : For the reasons explained above, we request the court to render a decision declaring our joint child to be of age. …/…/….

Ad Soyad Ad Soyad
Signature Signature