Characterization of the Mahr Concept in Turkish and German International Private Laws

Türk ve Alman Milletlerarası Özel Hukuklarında Mehir Kavramının Vasıflandırılması

Hatice Selin PÜRSELİM ARNING

Mahr, an Islamic law concept, has not been defined as a legal concept in Turkish and German laws. However, in both countries, courts occasionally have to deal with lawsuits regarding mahr. In Germany, mahr-related claims are made either by foreigners living in the country or by German citizens with an immigration background. In Turkey, such claims are set forward by Turkish citizens. It is also likely that some of these mahr-related lawsuits may involve a foreign element. In order to determine the law applicable to these claims, the court firstly needs to correctly characterize the concept with regards to conflict of laws. This article firstly explains the concept of mahr and afterwards discusses why the most suitable characterization is within the scope of the general provisions of marriage.

Characterization, International Divorce Law, Mahr, Private International Law, Sharia Law.

İslam hukukuna ait bir kavram olan mehir, Türk ve Alman hukuklarında tanımlanmamıştır. Ancak mehire ilişkin uyuşmazlıklar iki ülkenin de mahkemelerinde görülen davaların konusunu oluşturabilmektedir. Alman mahkemelerinde mehire ilişkin davalar, Almanya’da yaşayan yabancılar veya Alman vatandaşı olmakla birlikte Almanya’ya göç yollarıyla gelmiş kişiler tarafından açılmaktadır. Türkiye’de ise mehire ilişkin talepler, Türk vatandaşları tarafından ileri sürülebilmektedir. Mehire ilişkin uyuşmazlıkların yabancılık unsuru içermesi ihtimal dâhilindedir. Mehire ilişkin yabancılık unsuru içeren uyuşmazlıklarda, mahkemenin uygulanacak hukuku tespit edilebilmesi için mehir kavramının kanunlar ihtilafı kurallarına göre vasıflandırılması gerekir. Bu makalede öncelikle mehir kavramı açıklamakta ve devamında evliliğin genel hükümlerinin mehrin vasıflandırılmasındaki yer tartışılmaktadır.

İslam Hukuku, Mehir, Milletlerarası Boşanma Davaları, Milletlerarası Özel Hukuk, Vasıflandırma.

I. Introduction

Today, people travel more often or live abroad for private, commercial, and professional purposes. While the coming together of different cultures, religions and traditions in a single society result in the building of new bridges, it also gives rise to multifaceted legal disputes. Due to its geographic location, Turkey has hosted different cultures, traditions, and customs throughout history. 21.9 million people with a migration background live in Germany according to 2020 official data.¹

Mahr is not a legal concept defined in Turkish and German laws. In both countries, the religious marriage ceremony takes place after the civil marriage ceremony and religious law is not implemented; still mahr-related lawsuits are being filed for various reasons.

In lawsuits filed in Germany, mahr claims are made by foreigners living in the country or by German citizens of foreign origin. In Turkey, lawsuits for mahr debts are filed by Turkish citizens.

II. Mahr (Die Brautgabe)

In Islamic Law, money or property given or undertaken to be given by the husband to the wife at the time of the wedding is called “mahr”.² According to Islamic Law, the husband must give to the wife something of commercial value, such as money or a certain property, at the time of the marriage contract, during the marriage or after the marriage ends.³ If no mahr is undertaken during the wedding or if it is stipulated that mahr will not be given, this requirement does not apply.⁴ The mahr remains valid even if the spouses have not determined its amount.⁵ There is no upper limit to the amount of mahr to be paid; spouses are free to determine the amount.⁶ There is no consensus among different denominations as to the minimum amount of mahr.⁷ Mahr is not an amount paid to the father/family of the bride.⁸ It may be paid in advance or later (e.g. during divorce).⁹ The wife may freely dispose of the mahr given to her.¹⁰ If the wife donates the mahr to the husband, the obligation of the husband to pay mahr ceases.¹¹

In case the amount of the mahr is not determined at the time of the marriage, the wife is paid “mahr al-mithl” (mahr determined in consideration of the mahr paid to wife who are of the same social status and have similar characteristics);¹² this applies also in case the mahr determined is invalid (anything that is not prohibited by Islam and has financial value may be given as mahr).¹³ Even when the parties agree that no mahr will be given, the wife becomes entitled to mahr al-mithl after a valid marriage; but in order for the mahr to be transferred to the wife, either entrance to the nuptial chamber, legitimate khalwa (seclusion) must have taken place, or one of the spouses must have died before that.¹⁴

Most Islamic scholars consider mahr as one of the general conditions of marriage.¹⁵ The Maliki denomination thinks that mahr is a condition of validity, and marriage without mahr is invalid.¹⁶ In Turkish legal doctrine, mahr is regarded as one of the general conditions of marriage.¹⁷

Turkish Civil Code, which became effective on 4 October 1926, was adopted from the Swiss Civil Code as a whole and through translation.¹⁸ The Republic of Turkey, which was founded in 1923, abandoned Islamic law, which was used at the time of the Ottoman Empire, and joined the European legal system. Mahr was an instrument of family law during the reign of the Ottoman Empire and was applied in line with Islamic law.

According to one view, the contract can be considered a donation contract in Turkish civil law, if the mahr has the nature of a promise to donate.¹⁹ If the cause of the mahr contract is divorce through talaq (the husband’s ending the marriage unilaterally by saying to the wife “I divorce you” three times), the contract would be invalid since such a situation would disturb public order.²⁰ According to this view, if a mahr contract subject to the conclusion of marriage is made during engagement and if the engagement is dissolved thereafter, this donation, which is subject to a suspensive condition, will be returned since the condition has not been fulfilled.²¹ If the marriage is concluded, the mahr will be defined as a donation since the condition has been fulfilled. It is believed that a mahr contract made after civil marriage is regarded also as an abstract promise.²²