THE NECESSITY OF THE RE-EVALUATAION OF MAHR IN TERMS OF THE TURKISH POSTIVE LAW

Mahr,which is derived from Islamic Law, is a legal instrument for the benefit of the female spouses in Islamic family law. Therefore the subject, the upper and lower limits of the Mahr, kinds of Mahr (such as mehr-i müeccel and mehr-i muaccel, mehr-i misil and mehr-i müsamma) have a specific significance in its original system. According to the doctrine of Turkish positive law, the legal nature of the Mahr has been determined as “a promise to make a gift (donation)” or “a compensation derived from divorce”. The General Assembly on the Unification on the Judgements of the Court of Cassation used a simple contract approach to resolve a dispute over Mahr and accepted the claims to mahr in 1959. As a result of this approach, the number of post-divorce disputes has increased and the fair balance based on equality between the spouses in Turkish civil law has disturbed. Also, the solutions achieved by this approach do not correspond with Mahr’s original meaning in Islamic law. Some disputes which the court of Cassation identifed as a Mahr, can not be described as a Mahr in accordance with Islamic law. It is thought that in every legal system, family law constitutes an entity with its own legal instruments which ensure justice between the spouses. Therefore, Mahr should not be a matter of dispute in Turkish positive legal system. In our opinion, the ideal solution for this is to regulate Mahr as a natural obligation in Turkish Civil Law. This kind of provision will neither give harm to the fair balance betweeen the spouses nor increase the number of post divorce disputes. On the other hand it will lead spouses to mehr-i muaccel which is not contrary to Islamic law