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-  2018 

THE NECESSITY OF A LEGISLATIVE REGULATION ON THE JOINT CUSTODY AFTER THE DISSOLUTION OF MARITAL UNION

Keywords: Bo?anma,ortak velayet,kanun bo?lu?u.

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Abstract:

In Turkish law, it has been intensively discussed recently whether it is possible that mother and father can use the right of custody jointly after divorce. According to the dominant approach, the provisions of the Turkish Civil Code regulating the matter require that only one of the spouses would have the right of custody after divorce. The Court of Cassation consistently used to decide that joint custody was not possible in Turkish law and even joint custody was against the public order. However, by the 2016/15771E. 2017/1737K. numbered decision, Court of Cassation has decided that joint custody is not clearly against the Turkish public order and does not breach the fundamental structure and fundamental interests of the Turkish society. After this decision, the Turkish Courts has started to render judgements that spouses can use the right of custody jointly after divorce. In this study, the approach of the Turkish Civil Code to the notion of joint custody after the dissolution of marital union will be evaluated with reference to the legal literature and court decisions. At this point, the international treaties that Turkey singed and the decisions of international organizations and court will also be considered. Finally, following the establishment of the argument that joint custody after the dissolution of marital union should be regulated as a legal institution by a Statutory Act, the principles, which should be included in this Act, will be presented

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