Information Note on the Court’s case-law 115

January 2009

Åžerife YiÄŸit v. Turkey - 3976/05

Judgment 20.1.2009 [Section II]

Article 8

Article 8-1

Respect for family life

Refusal of courts to grant a woman married in a religious ceremony benefit of the social security and pension rights of her deceased husband, the father of her children: no violation

[This case was referred to the Grand Chamber on 14 September 2009]

Facts : The applicant married her partner, Ö.K., at a religious ceremony. Following his death she brought an action in her own and her daughter’s name to have the marriage recognised and their daughter entered in the civil register as his. The distric t court rejected the request for the registration of the marriage but granted the request for Ö.K. to be registered as his daughter. No appeal was lodged and the judgment became final.

The applicant then made an unsuccessful request to the retirement-pensi on fund to have Ö.K.’s retirement pension and health-insurance benefits transferred to her and her daughter. She subsequently applied to the employment tribunal to have that decision set aside. The tribunal dismissed that application in part, after finding , on the basis of the district court’s judgment, that the applicant’s marriage had not been validated and that in the absence of legal recognition she could not be subrogated in the deceased’s rights. The employment tribunal did, however, set aside the pen sion fund’s decision in respect of her daughter, to whom it transferred her deceased father’s rights to a pension and health-insurance benefits. The employment tribunal’s decision was upheld by the Court of Cassation following an appeal by the applicant.

L aw : In the special circumstances of the applicant’s case, the Court had to examine whether the employment tribunal’s decision had violated her family life. There was a current social trend, supported by the legislature, in certain member States of the Coun cil of Europe towards the acceptance and even the recognition of stable forms of union such as cohabitation or civil partnership alongside the traditional marital bond. However, outside civil marriage, Turkish law did not provide for a union based on law c reating a civil partnership that would allow two people of the same or opposing sexes to have rights identical or similar to those of a married couple. Having regard to the margin of appreciation afforded to the High Contracting Parties to the Convention i n this sphere, the Court could not require them to legislate. In the applicant’s case, the religious ceremony celebrated by the imam did not under the domestic law in force create any commitment vis-à-vis third parties or the State. Irrespective of the app licant’s arguments, the decisive element was the existence of a commitment consistent with a bundle of rights and obligations of a contractual nature, rather than the length or stability of the relationship. In the absence of any legally binding agreement, it was not unreasonable for the Turkish legislature to afford protection solely to civil marriages. As the Court had previously stated, marriage remained an institution widely recognised as conferring a particular status on those who entered into it. Furt her, Article 8 could not be interpreted as requiring the establishment of a special regime for a specific category of unmarried couples. Thus, the difference in treatment between married and unmarried couples with regard to survivors’ benefits pursued a le gitimate aim and was based on objective and reasonable grounds, namely the protection of the traditional family based on the bonds of marriage.

Conclusion : no violation (four votes to three).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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