Engagement constitutes the stage prior to the establishment of marriage. No specific formality is required. It is sufficient for the parties to promise to marry each other in any way, either verbally or through their behaviour, for the engagement relationship to be established. The intention to engage may be explicit or implicit. The declaration of the intention to become engaged is strictly personal and must be made by the persons who are to become engaged. Therefore, engagement cannot be done through a representative. However, it can be done through a messenger. It is also possible to make it conditional. A condition such as ‘Finish your military service and then come’ is valid.
Engagement, which can be characterised as a unique family law contract, is defined in Article 118 of the Turkish Civil Code as ‘… a promise to marry.’ Therefore, engagement can be defined as a mutual promise between a woman and a man to marry each other in the future. The first constitutive element of engagement is that the persons to be engaged must be of different sexes, and the second is that a man and a woman must mutually promise to marry each other.
For an engagement to be established, the engaged parties must make mutual and compatible declarations of intent (expressions of intent). The intentions of the engaged parties must not be fraudulent, and there must be no error, deception, or threat involved. In addition to these constitutive elements, certain conditions must be met for the engagement to be valid.
Our Civil Code does not regulate the obstacles to engagement. However, the absence of discernment and the existence of one of the absolute obstacles to marriage render the engagement contract invalid. Persons who are completely incompetent cannot become engaged. It is a right closely tied to the individual. Minors who lack the capacity to discern may exercise their rights closely tied to the individual. However, they cannot be held liable for financial consequences without the consent of their legal representative.
Similarly, if the engagement contract is contrary to morality and decency, it is considered void. Engagement imposes obligations of fidelity, assistance and marriage on the parties. In return, it grants the right to refuse to testify, the right to enter into a property regime agreement, the right to claim ‘compensation for loss of support’ from the person who killed the fiancé, and the right to file a claim for moral damages against the person responsible for the death of the fiancé as a result of a wrongful act. Engagement may terminate automatically, or it may be terminated by marriage, death, impossibility, the occurrence of a condition that renders the engagement void, mutual agreement, unilateral withdrawal from the engagement (breaking off the engagement), mental incapacity, or the re-engagement of one of the engaged parties.
