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Divorce of Foreigners Under Turkish Law


Ece Ergün

Ayşegül Avcı

Today, thanks to enhanced transportation between countries and technological developments, it has become increasingly common for individuals residing in different nations to engage in interactions. This has resulted in a notable increase in the incidence of international marriages. Conversely, a corresponding effect of this phenomenon is the rise in the number of foreign divorce cases, attributable to various factors, particularly shifts in expectations. 


In this article, divorce proceedings initiated for the finalization of foreign marriages are assessed.


What is the Foreign Element? 

The foreign element can be defined as the element that makes a legal relationship subject to the laws of several different states in terms of individuals or jurisdiction. The foreign element in the marriage is in question in the presence of the following conditions.


  • The marriage concluded in a foreign country,

  • One or both spouses having foreign nationalities,

  • One of the spouses residing in a foreign country,

  • Having a habitual residence (the place where the spouses live) in a foreign country.


Which National Law Applies to Divorce Cases Initiated in Turkish Courts?

While determining the applicable law for divorce cases involving marriages with a foreign element, the provisions outlined in Law No. 5718 on International Private and Civil Procedure Law (IPCPL) shall be applied.


Within the scope of the article under the title of “Divorce and Separation” of the IPCPL, the applicable law is determined according to the following principles:


  • If one of the spouses holds Turkish citizenship, Turkish Law shall be applied apply.

  • If neither of the spouses holds Turkish citizenship;

  • Initially, if the spouses share the same nationality, the common national law shall apply.

  • In cases where the spouses possess different nationalities, the law of the common habitual residence, i.e. the law of the residence shall apply.

  • If the spouses do not have a common habitual residence; then Turkish Law shall apply.


The determination of the law applicable to alimony claims between divorced spouses, issues related to custody and curatorship, and claims for annulment of the marriage shall be determined within the framework of the above-mentioned rules.


Before Which Court Are Divorce Cases with a Foreign Element Can Be Filed?

The competent court for handling divorce cases filed in Turkey is the Family Court. In places where there are no Family Courts, the Civil Courts of First Instance will be competent. 

The jurisdiction for divorce cases is the court of the place of residence of one of the spouses or the place where they have been living together for the last six months before the divorce lawsuit.


What is the Law Applicable to the Division of Matrimonial Property in Divorces with a Foreign Element?

In practice, with the divorce lawsuit, the division of the property acquired during the union of marriage usually comes to the foreground. t This process, known as the liquidation of matrimonial property regime, the applicable law is also important for marriages that possess a foreign element. 


Article 15 of the IPCPL is titled as “Matrimonial Property”. Within the scope of the relevant article, if the spouses have chosen one of their habitual residence or national law as the applicable law at the time of their marriage, then the chosen state’s law would be the applicable law. In the absence of such a designation by the spouses, the law applicable to the matrimonial property shall be determined according to the following circumstances:


  1. The common national law of the spouses at the time of marriage.

  2. In the absence of a common national law, the law of the common habitual residence at the time of marriage.

  3. In the absence of a common habitual residence law, then Turkish Law shall apply.


The exception to the above-mentioned general rule is the case where the spouses own an immovable property during their marriage. In the event that an immovable property is subject to the liquidation of the matrimonial property regime, in addition to the law applied in the context of the divorce lawsuit; the law of the state where the immovable property is located will be applied for the immovable property in question.  For instance, although Turkish law is applied in a lawsuit for the liquidation of property regime initiated in Turkey, in the case of an immovable property acquired by the spouses in Italy during their marriage, Italian law shall apply for the immovable in question.


Is a Divorce Decision Rendered in a Foreign Country Valid in Turkey?

It is also possible for spouses seeking to end their marriage to file for divorce case in a foreign country. In such cases, for the divorce decision to carry legal ramifications in Turkey, it necessitates recognition or enforcement before Turkish Courts. As a rule, recognition and enforcement procedures are carried out with separate lawsuits. Upon a lawsuit initiated for the recognition or the enforcement of a divorce decision rendered in a foreign country, the decision in question becomes legitimate in Turkish Law and is deemed as a judgement rendered in Turkish Courts. Until the recognition and enforcement of the foreign divorce decision, the marriage remains valid in Turkey. The decision to initiate a lawsuit whether on the recognition or the enforcement is determined according to the content of the divorce judgement rendered in the foreign court.


Recognition of the Divorce

Recognition lawsuit is initiated to validate foreign court decisions which do not require any enforcement. The purpose in this lawsuit is to validate these foreign court decisions in Turkey. For instance, if only a divorce decision has been rendered by the Swiss Courts, in other words, if the divorce decision does not contain any executory provisions such as custody, alimony, compensation, etc., it is sufficient to file a recognition lawsuit.


For a divorce decision rendered in a foreign country to be recognized in Turkey, it is necessary to meet the following criteria:


  1. The relevant divorce decision must have been rendered by administrative or judicial authorities competent to decide on divorce. 

  2. The divorce decision must be final and conclusive. 

  3. The divorce decision should not be clearly against the Turkish public order.  

Recognition and validation of divorce decisions rendered in a foreign country in Turkey can be accomplished through one of the following ways:


  1. One of the parties may file a lawsuit before the Family Court and request the recognition of the divorce decision rendered in a foreign country.

  2. Pursuant to Article 27/A of the Law No. 5490 on Civil Registry Services, finalized divorce decisions that are not clearly contrary to the Turkish public order shall be registered in the civil registry if both parties are Turkish; or, if one party is a foreign national, registration can occur upon the application of the Turkish party to the Civil Registry Directorate. For this procedure, at least one of the parties involved in the divorce lawsuit must be a Turkish citizen.


Enforcement of the Divorce 

The enforcement lawsuit ensures the validity of foreign court judgements regarding the private law relations of individuals, which include enforceable provisions, in Turkey. In the event that the divorce decision covers not only the divorce of the spouses, but also the alimony amounts to be paid to the spouses, the issues regarding the custody of the joint child, the material and moral indemnities of the spouses and the decisions regarding the division of property, the enforcement of the divorce decision is required for the execution of the relevant judgements. Following the example given above, if the divorce decision rendered by the Swiss Courts includes a decision regarding the custody of the joint child and the maintenance to be paid by the non-custodial spouse for the joint child, an enforcement lawsuit should be filed. 


For the enforcement of a foreign divorce decision in Turkey, the following conditions must be fulfilled.


The existence of a reciprocal agreement between Turkey and the country where the decision was rendered, or the existence of a legal provision or de facto practice in the state where the decision was rendered, which enables the enforcement of decisions rendered by Turkish courts, 


  1. The divorce decree issued in the foreign country must be final and conclusive,

  2. The divorce decision should not be clearly against Turkish public order.


Conclusion

In divorce lawsuits, as a rule, the spouses must file a lawsuit in accordance with their common national law. However, in cases where both spouses are not Turkish citizens and they do not have a common national law, it is possible to divorce in Turkey according to Turkish Law in the absence of a common habitual residence. 


If the divorce decisions rendered in a foreign country are desired to have consequences in Turkey, these decisions will first need to be recognized and enforced within the framework of the procedures listed in Turkish Law. Divorce decisions rendered in a foreign country, which are recognized and enforced in Turkey, may be effective and enforceable in Turkey.

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