European Family Law Volume II
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European Family Law Volume II

The Changing Concept of ‘Family’ and Challenges for Domestic Family Law

Edited by Jens M. Scherpe

This four-volume set maps the emerging European family law. It is intended to serve as a resource for anyone interested in this area of law, as well as a basis for teaching on comparative and international family law courses. The first volume examines the impact of institutions and organisations on European family law. While there is no European body that could actually legislate definitively on family law, there are some institutions that have a direct impact on European family law, while the impact of others is more indirect. In the second volume the changing concept of ‘family’ and challenges for domestic family law are analysed in 21 different jurisdictions, in 16 chapters. All contributions look at ‘horizontal’ family law (the law concerning the relationships between adults), ‘vertical’ family law (the law concerning the relationships of adults and children) as well an ‘individual’ family law (the law on names and gender identity). In the third volume the contributions take a comparative view on specific issues from a European perspective. The fourth volume, which works as a stand-alone monograph, draws on all of the previous chapters, and discusses the present and future of European family law. It establishes areas where ‘institutional’ European family law exists – in the sense that there are binding legal rules for all European jurisdictions – for example, as a result of a decision by the European Court of Human Rights. It also identifies areas where, as a result of common legal and social developments for ‘horizontal’, ‘vertical’ and ‘individual’ family law, an ‘organic’ European family law is emerging and suggests how family laws in Europe are going to develop in the future.
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Chapter 16: The changing concept of ‘family’ and challenges for family law in Turkey

Esin Örücü

Extract

The predecessor of the Turkish Republic, the Ottoman Empire, was a multi-ethnic state, decentralised, and culturally and legally pluralist. Although the official law of the Empire was Islamic, until the second half of the 15th century the majority of the population were Christian living under the rule of a Muslim minority. There was no one language, no single distinct culture, no one religion and therefore no one law: eclecticism and pragmatism prevailed in the running of the Empire. Muslims lived under Islamic law and other religious groups were allowed to abide by their own personal laws: the primary determinant of choice of law was religion. Obviously this arrangement was reflected strongly in the family laws of the Empire. Pluralism was both as to substantive law to be applied and the courts that had jurisdiction to apply the law. For Muslims, until 1917, family law in the Ottoman Empire was based on the _eriat (shari’a) reflecting Sunni beliefs and the Hanafi School’s interpretation. Islamic law recognised the equal worth of human beings, but stressed different roles and rights for men and women within the framework of marriage, and therefore was not based on the equality of the spouses. In 1916 two imperial edicts were promulgated granting wives the right to sue for divorce in cases of desertion or a husband’s contagious disease making conjugal life dangerous.

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