free law journal - volume 3, number 1 (18 january 2007)

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FREE LAW JOURNAL - VOLUME 3, NUMBER 1 (18 JANUARY 2007)parties need not be childless; however, if any, the possibleinterests of the natural children of the adopter should be takeninto consideration by the court during the jurisdiction (TCC Art.305/2).Based on the idea that the rules regarding adoption aim atproviding the child new parents, i.e., a father and a mother, mainattitude in Turkish law is to limit the adoption to married couples.Therefore, under TCC as a general rule only married couples canadopt jointly (TCC Art. 306/1). In that sense joint adoption otherthan by married couples is not allowed. Married persons mayadopt jointly either if they have been married for five years orthey have both reached the age of 30 (TCC Art. 306/2).However, in a step-parent situation one spouse is permitted toadopt the child of the other. In the case of an adoption of astepchild, the spouses must have been married for at least a yearbefore adoption or the adopting spouse must reach the age of 30(TCC Art. 306/3). The general principle that lies behind thisprovision is to provide convergence between a step child and anatural one 20 . Additionally adoption by one spouse alone can alsobe permitted if a joint adoption is impossible, i.e., if one spouse ispermanently mentally incapable, or absent and untraceable formore than two years, or if the parties have been separated by acourt jurisdiction for more than two years (TCC Art. 307/2).A sole adoption is also open to unmarried persons, such as,single, widowed, or divorced ones. The aforementionedrequirement of reaching the age of 30 at the time of adoptionapplies to unmarried persons as well (TCC Art. 307/1).In any situation of adoption permitted by law the adopting parentmust be at least 18 years older than the adopted person (TCC Art.308/1). This rule is another reflection of the general approachaiming at maintaining resemblance between the artificial20 Serozan, pp. 145-146; Demir, p. 262.88DR. ERKAN KÜÇÜKGÜNGÖR - LEGAL REQUIREMENTS FORADOPTION UNDER TURKISH LAW
FREE LAW JOURNAL - VOLUME 3, NUMBER 1 (18 JANUARY 2007)legitimacy created by adoption and the natural one created bybirth (adoptio imitatur naturam) 21 .Before the decision with respect to adoption is given by the court,the persons related to the act of adoption must give their consent.Among those related persons the consent of the child to beadopted, if only he is mentally capable, is required at the firstplace (TCC Art. 308/2). If the child is under guardianship of aperson other than his mother and father, the guardianship courtsis authorised to give the consent without his mental capacitybeing taken into consideration (TCC Art. 308/3). Additionally,adoption requires the consent of the natural mother and father ofthe child, no matter they have the guardianship of the child or not(TCC Art. 309/1). Consent must be expressed orally or in writingto the guardianship court where the child or his natural motherand the father reside (TCC Art. 309/2). Mentioning the futureadopting parents is not necessary for the validity of the consent.Likewise the consent would still be valid if they are notdetermined at the time of the consent (TCC Art. 309/3). Consentby the parents cannot be given validly until six weeks after thebirth of the child, and is revocable during the six weeks after ithas been given (TCC Art. 310). If a parent is unknown, or absentand untraceable, or permanently mentally incapable, or hasviolated his parental duty of care to the child, consent of thatparent is not required (TCC Art. 311). In this case, a decision isgiven by the guardianship court proving that such consent is notrequired (TCC Art. 312/2).2. Adoption of Adults and Persons under GuardianshipAdoption of an adult or a person under guardianship is allowedonly under restricted conditions. In such situations the rulesregarding the adoption of minors in TCC can be comparably21 Serozan, p. 144. This rule has its roots from Roman law. For details,see: Schulz, p. 148; Buckland, p. 123; Leage, p. 89; Di Marzo, p. 141.89DR. ERKAN KÜÇÜKGÜNGÖR - LEGAL REQUIREMENTS FORADOPTION UNDER TURKISH LAW
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