1 – What is Dower?
Dower is defined as jewelry made of precious metals such as gold and silver, worn by people as decorative accessories (Yılmaz, E.: Legal Dictionary, Ankara 2011, p. 1529). It is possible to define dower items as gifts given to the bride and groom during marriage. In this context, items such as bracelets, gold cuffs, necklaces, pendants, jewelry sets, bracelets, watches, earrings, and rings are considered as dower items (Sağıroğlu, M.Ş.: Dower Lawsuits, Istanbul 2013, p.3).
2 – Who Owns Dower Items?
Unless there is a contrary agreement between spouses or a local custom on this matter, jewelry given to any spouse during marriage is considered a gift to the female spouse and becomes her personal property. Indeed, the same principle has been adopted in the decisions of the General Assembly of Law dated 05.05.2004 with the numbers 2004/4-249 E. and 2004/247 K.; 04.03.2020 with the numbers 2017/3-1040 E., 2020/240 K.
The dower lawsuit should not be confused with the division of the matrimonial property after the end of marriage. This lawsuit is a personal property claim, so the termination of the marital union or the filing of a divorce case is not required.
3 – How Can a Woman Win the Dower Lawsuit?
In dower lawsuits, the subject of the dispute, dower items, are items that can be easily stored, carried, and taken away. Therefore, it is common for these items to be in the possession of the female spouse. Moreover, based on life experiences, it is common for such items to be on the woman or kept at home. It is inconsistent with the normal situation for these items to be left in the possession and protection of the man. The woman claiming otherwise is obliged to prove her claim.
In dower item lawsuits, the primary rule in terms of proof law is that the woman plaintiff must prove the existence of the claimed dower items in terms of type, number, quality, and quantity.
After proving the existence of the dower items in this way, the woman must also prove that these items were taken from her during the marital union and were not returned, or she did not have the opportunity to take these items with her when leaving the house. In other words, the woman claiming the right to dower must prove, beyond doubt, that the claimed dower items, whose existence she has proven, are not in her possession.
4 – How Can a Man Win a Dower Lawsuit?
If the woman, through concrete evidence, proves that dower items, considered her personal property, have left her possession and entered the possession of the man in a way that leaves no doubt, then the man is burdened with proving that he is not obligated to return the dower items belonging to the woman.
According to the general provisions of the law of obligations; the main rule is that the debtor is obliged to return what he received. The burden of proof that it was not received for return rests with the party benefiting from the legal consequence based on the claimed fact, as emphasized above. Therefore, the man, who admits that he received these dower items into his possession, must prove that he took them without the intention of returning them.
5 – How to Win a Dower Lawsuit? Does the Man’s Counter-Evidence Change the Burden of Proof?
The general rule about the burden of proof is stated in Article 6 of the Turkish Civil Code as, ‘Unless otherwise stipulated by law, each party is obliged to prove the existence of the facts on which it bases its claim.’ and in Article 190 of the Code of Civil Procedure, ‘Unless otherwise stipulated by law, the burden of proof rests with the party benefiting from the legal consequence based on the claimed fact. The party relying on a legal presumption is only responsible for proving the facts underlying that presumption. Except for the exceptions provided by law, the party against whom the presumption is relied upon may prove the opposite of the legal presumption.’ These two regulations are parallel to each other, and Article 190/1 of the Code of Civil Procedure is a more explicit expression than Article 6 of the Turkish Civil Code.
Based on the general regulation mentioned above, the legislator stated that there are some exceptions to the general rule regarding the burden of proof by saying, ‘Unless otherwise stipulated by law.’ One of these exceptions is the situation where the party claiming the opposite of the normal situation is obliged to prove their claim. The party relying on a normal situation does not have to prove their claim; on the contrary, the burden of proof lies with the party claiming something contrary to the normal course of events.
As mentioned above, dower items are items that can be easily stored, carried, and taken away. Therefore, it is common for these items to be in the possession of the female spouse. Moreover, based on life experiences, it is common for such items to be on the woman or kept at home. The woman claiming otherwise is obliged to prove her claim.
According to Article 191 of the Turkish Civil Code, which is titled ‘Counter-Evidence,’ ‘The other party may present evidence that the party bearing the burden of proof is incorrect. The party presenting evidence for counter-proof is not considered to have assumed the burden of proof.’ Therefore, the burden of proof that must be fulfilled by the party bearing the primary burden of proof should be called primary proof.
If the party responsible for the primary burden of proof cannot prove their claim, it will not be necessary for the party not responsible for the primary burden of proof to prove the opposite of the claim. The case will be considered unproven. However, according to the mentioned article, the party not responsible for the primary burden of proof may either wait for the other party to prove the opposite of the claim or present evidence to prove the opposite of the claim.
This evidence is called counter-evidence. The crucial point to note here is that the party presenting counter-evidence is not considered to have assumed the burden of proof. The party not responsible for the primary burden of proof only tries to refute the other party’s claim by presenting counter-evidence and thus makes it difficult for the other party to prove their claim.
In conclusion, the party bearing the primary burden of proof cannot demand a favorable outcome solely because there is evidence based on counter-proof if they cannot prove their claim with their own evidence. All these explanations underlie the fact that the party not responsible for the primary burden of proof presents evidence against the evidence presented by the party bearing the primary burden of proof. After the party responsible for the primary burden of proof proves a fact, the burden of proof shifts to the other party. Then the other party must prove that the fact is not true or has become invalid for another reason. Otherwise, they lose the case.”