(Marriage and Divorce Cases with a Foreign Element)
In this article, which is the second in the series I plan to write on foreigners law, I will continue to address some of the legal processes related to natural persons, as mentioned in the first article.
As I start, I would like to remind you once again that I write these articles within the framework of academic ethical rules but without academic concerns. I strive to include practical information rather than theoretical knowledge in the series. At this point, I would like to thank my colleagues and all members of the justice community who commented on my previous article, reached out to me to express their gratitude, and asked their questions. I hope that this series will be beneficial to my colleagues who, like me, are in the early years of their profession and to those who are newly focusing on the field of foreigners law.
In the previous article, I discussed the processes related to foreigners’ residence permits in Türkiye, deportation, entry bans, inadmissible passengers, and administrative detention decisions. In this article, I will address cases such as the marriage and divorce of foreigners, and, very briefly, paternity cases. In the following articles, I will write about malpractice cases involving foreign elements and then begin to focus on areas I work on more frequently, such as contracts and corporate law involving foreign elements, investment law, and energy law.
Before addressing the topics in this article, I would like to provide brief information regarding a question, from a colleague, that I consider important, related to the subjects of the previous article:
The question from my colleague was: “If a foreigner who is in Türkiye during the 90-day visa/residence permit exemption period applies for a residence permit and the application is rejected, will the time spent during the application review process be considered part of the 90-day exemption period?”
As is known, citizens of certain countries are granted a 90-day visa/residence permit exemption within every 180-day period. The question posed by our colleague is a concern for many foreigners and often raises curiosity. In fact, one of the purposes of this 90-day exemption is to allow sufficient time for the application process, so the time spent during the application is counted towards this exemption.
After this brief information, let’s move on to practical details regarding foreign law and examine some aspects of family law, which are frequently encountered:
- Marriage and Divorce Cases of Foreigners
3. A Marriage of Foreigners
First of all, it should be noted that Türkiye, due to its natural and historical beauties and its civil law being harmonized with the EU, is a frequently chosen country for marriage by citizens from countries such as Russia and the Post-Soviet region, the Arab region, Pakistan, and China. The marriage certificate issued after a wedding in Türkiye is an international marriage certificate. However, it is important to note that although this certificate is international, it still needs to be apostilled for the marriage document to be valid in some countries.
Foreigners can get assistance from lawyers in Türkiye during the marriage process. Once the required documents (certificate of no impediment, medical report, passport translations) are provided, making an appointment is sufficient. It is crucial that the names on these documents match those on the passport to avoid any issues with translations. Moreover, the “certificate of no impediment” is particularly important.
3. B Divorce Cases
Divorces, like marriages, are also common situations for foreigners in Türkiye. However, when addressing divorce cases related to foreign nationals, I believe it is useful to make a basic distinction:
- Divorce of two foreigners in Türkiye or a divorce between a Turkish citizen and a foreigner in Türkiye
- Recognition and enforcement of divorce cases outside of Türkiye.
If two foreigners or a Turkish citizen and a foreigner wish to divorce in Türkiye, one should refer to Article 14 of the Act on International Private and Procedure Law (MÖHUK). Article 14 of MÖHUK is as follows:
(1) The grounds and provisions for divorce and separation shall be governed by the common national law of the
spouses. If the spouses have different nationalities, the law of the place of their common habitual residence, in case of
absence of such residence, Turkish law shall govern.
(2) The provisions of the first clause shall also govern demands for maintenance between divorced spouses. This
provision also governs in cases of separation and nullity of marriage.
(3) Custody and problems thereof in accordance with divorce are also governed by the provisions of the first clause.
(4) Turkish law shall govern demands for temporary measures.
At this point, it is useful to address the frequently mentioned concept of “habitual residence” in the law. Habitual residence is different from domicile and was taught to us by the faculty (Ankara University Law School) as the “law to which the person is connected.” The concept of habitual residence can be thought of as the “law of the place where the person maintains social connections” or “the law of the place where they live their life.”
Undoubtedly, another important issue related to divorce is the matter of matrimonial property and alimony. For matters related to matrimonial property, one should refer to Article 15 of the Act on International Private and Procedure Law (MÖHUK):
(1) Spouses may clearly designate either the internal law of their habitual residence or national law at the time of marriage to govern their matrimonial property. Where no such choice has been made, the common national law of the spouses at the time of marriage, or in the absence of common law, the internal law of their habitual residence at the time of marriage shall govern or in the absence thereof, the Turkish law shall govern.
The second paragraph of Article 15 of the Act on International Private and Procedure Law (MÖHUK) emphasizes the exception regarding immovable property:
(2) In case of liquidation of property, the immovable are governed by the state law in which they are located in.
In alimony cases, the situation is different. Article 19 of the Act on International Private and Procedure Law No. 5718 regulates the law applicable to alimony cases:
- The habitual residence law of the creditor shall govern the alimony.
On the other hand, while determining the applicable law in light of the mentioned articles, it is essential to refer to and consider Article 5 of the Act on International Private and Procedure Law (MÖHUK):
- If the provision of the foreign law to be applied in a certain case is openly contrary to the public order of Türkiye, the said provision shall not be applied. Where it is deemed necessary, Turkish law shall be applied.
When determining the applicable law in divorce and alimony cases, Articles 5, 14, 15, and 19 of the Act on International Private and Procedure Law (MÖHUK) need to be examined. These articles stipulate that in divorce cases, the common national law of the parties, or in its absence, the habitual residence law, or failing that, Turkish law shall apply; in alimony cases, the habitual residence law shall apply; and in property regime cases, unlike divorce, either the habitual residence law or the common national law shall apply, and if neither is applicable, the law at the time of marriage shall be considered, and failing that, Turkish law shall apply. However, there is an exception regarding immovable property, as mentioned above.
If two Turkish citizens divorce abroad, for the divorce to be valid under Turkish law, a recognition-enforcement lawsuit must be filed. Recognition is only required for divorce cases, while enforcement is necessary for decisions requiring implementation such as alimony or compensation. Enforcement is more comprehensive than recognition and includes recognition within it. However, in practice, I have seen cases where the ruling states “recognition and enforcement” in lawsuits filed for recognition and enforcement. Moreover, while reading through old cases, I have observed similar rulings.
Enforcement cases are regulated between MÖHUK Article 50 and Article 63. The issue is discussed in a very understandable manner in the following decision of the General Assembly of the Court of Cassation:
“The concepts of recognition and enforcement have been explained with the reasoning in terms of procedural law of legal cases. Evaluations regarding the classification, as well as which types of cases will be considered legal cases, and the determination and evaluation of enforcement according to the law of the country where enforcement is requested will be made. On the other hand, in terms of formality, the foreign judgment must have become final according to the law of the country where it was rendered. Firstly, the condition of legal interest in the enforcement case will be examined, and then, after the judge who will render the decision examines whether the foreign decision meets the requirements of Turkish Law for enforcement if the conditions are met, the enforcement (exequatur) decision can be rendered. The enforcement court does not have the authority to examine whether the foreign court correctly applied the substantive law and its procedural rules, nor does it have the capability to scrutinize the content of the foreign judgment (Article 38/c of the International Private and Procedural Law No. 2675, Article 54/a, b, c, ç of the same Law No. 5718). However, if the foreign court’s judgment contradicts Turkish public order, according to the main provision of Law No. 5718, there is an obstacle to enforcement in any case.” Therefore, based on this reasoning, it has been decided that the enforcement court, concerning a foreign court decision related to a dispute arising from a private law relationship, does not have the authority to examine both substantive and procedural law and cannot scrutinize the content of the foreign judgment.”GENERAL ASSEMBLY OF THE COURT OF CASSATION Case File No. 2017/2-2669 Decision No. 2021/109 dated 18.2.2021.
Another decision of the General Assembly of the Court of Cassation regarding the recognition of foreign court decisions is as follows:
“The increasing intensity of cross-border relations, particularly disputes stemming from marriages involving foreign elements, gives rise to numerous private law issues. While each state endeavors to safeguard its national interests through the decisions of its own courts, it is also obliged to consider international activities and uphold rules respecting individuals’ rights. The effectiveness of decisions rendered by the courts of sovereign states is confined to that country. Recognition and enforcement of foreign court decisions outside the country where they were rendered, resulting in legal effects and consequences, are achievable through recognition and enforcement. As a general rule, recognition and enforcement can be pursued through separate legal proceedings. With the issuance of a recognition or enforcement decision as a result of these proceedings, the foreign court decision acquires the force and quality of a local court decision. (GENERAL ASSEMBLY OF THE COURT OF CASSATION, Case File No. 2017/108, Decision No. 2018/1459, dated 18.10.2018).” General Assembly of the Court of Cassation, Case File No. 2017/2669, Decision No. 2021/109, dated 18.02.2021.
After this summary and basic information, let’s touch on some important points and decisions and conclude the article:
- Firstly, there is a question in practice whether cases involving blue card holders (those who have renounced Turkish citizenship with permission) carry a foreign element. In transactions involving blue card holders, there is no foreign element.
- The one-year statute of limitations for compensation claims following a divorce case (Article 178 of the Turkish Civil Code) starts from the finalization of recognition and enforcement cases:
For the recognition of the foreign divorce judgment forming the basis of the parties’ divorce, a recognition decision was rendered by Kırşehir Family Court with its decision numbered 2012/467 E. and 2013/162 K., and this decision became final on 29.03.2013. The plaintiff filed the present lawsuit on 08.11.2013 within the legal period stipulated by Article 178 of the Turkish Civil Code (TMK), requesting material and moral compensation and alimony for poverty from the defendant under Articles 174/1-2 and 175 of the TMK. Accordingly, since the foreign court’s decision of recognition established the fault regarding the incidents leading to the divorce as conclusive evidence, the court should have made a decision considering the fault determination in the divorce judgment. However, the rejection of the case necessitated a reversal of the decision. GENERAL ASSEMBLY OF THE COURT OF CASSATION, Case File No. 2017/2-2669 Decision No. 2021/109 dated 18.2.2021
- In divorce cases with foreign elements, if one of the parties is abroad, correspondence should be written to the Ministry of Justice’s Directorate General for Legal and Foreign Affairs, and procedures should be conducted in accordance with the “Communiqué on the Procedures and Principles to be Followed in Foreign Notification and Letter Requests”This regulation elaborates on the expenses and other matters required for the rogatory process. After depositing these expenses at the relevant banks, the receipts must be submitted to the bank.
For example, in divorce cases, a rogatory request can be made for an investigation of the economic and social situation.
Additionally, for Turkish citizen witnesses abroad, question papers can be sent under Article 244 of the Code of Civil Procedure (HMK). In this case, the expenses are again deposited at the bank, the questions to be asked are submitted to the court, and the judge may add additional questions. The procedures are conducted through the embassy, and the witness submits their written statements to the embassy within the specified period, which then sends them to the court. Thus, the witness is considered to have been heard. Additional questions can also be asked if necessary.
- In cases with foreign elements, many times a correspondence is written to the Ministry of Foreign Affairs requesting information. This information may relate to the existence of agreements, etc. Additionally, in foreign element cases, a correspondence can be written to the Ministry of Justice’s Directorate General for Foreign Affairs requesting an opinion on the principle of reciprocity.
- As seen in the court decisions on recognition and enforcement requests, certain important points must be noted: the finality of the decision requested for recognition and enforcement, non-contradiction of the judgment with public order and Turkish laws, the presence of an actual application enabling the recognition of the judgment, and compliance with legal requirements.
The issue of public order contradiction is quite broad, comprehensive, and debated. In Ahmet Cemal Ruhi’s work “Recognition and Enforcement of Foreign Divorce Judgments in Turkish Law,” notable examples of this issue are highlighted. Briefly, in the case of the recognition of a divorce judgment of a lesbian marriage in Denmark, the author argues that due to public order contradiction (an absolutely null marriage), it cannot be recognized and enforced in Türkiye. However, decisions related to the consequences of the divorce (e.g., compensation) should be enforced based on the principle of equity.
Another example in the same work pertains to the recognition of a Sharia court decision in Saudi Arabia involving divorce by talaq and the non-acceptance of a woman’s testimony as full testimony. In this case, an opinion was sought from the Ministry of Justice, and ultimately, the court recognized the divorce by considering the woman’s acceptance of the divorce. The relevant information from the correspondence is as follows: Letter from the General Directorate of Legal Affairs of the Ministry of Justice dated 30.11.1990 and numbered 50308.
- In some countries adopting the Anglo-Saxon legal system, different procedures are followed in divorce cases. For example, in a divorce case in England, the process was very rapid, and the divorce was finalized without determining fault. The financial issues were handled in separate cases. Moreover, in subsequent cases regarding the consequences of the divorce, the same judge who rendered the initial judgment was authorized to make decisions. For example, when my client’s ex-spouse committed violence during a meeting with their children, the application for a precaution and rearrangement of meetings was made to the same judge, who quickly rendered a decision due to familiarity with the case. Additionally, the detailed specification of the place and time of meetings in the relationship establishment decision between the father and the children and its monitoring via an application was noteworthy.
- Another important topic in cross-border divorce cases is the Hague Convention on the Civil Aspects of International Child Abduction. This convention, along with the “European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children,” must be known and the procedures stipulated by these conventions should be followed in custody and child abduction cases.
Furthermore, the issue of exit permission (notarized consent) for children traveling abroad is crucial. Under Turkish law, if one parent has custody, there is no need for the other parent’s permission. However, to avoid practical issues, it is advisable to obtain this notarized consent if possible.
A decision of the General Assembly of the Court of Cassation regarding the contracts in question is as follows:
“The convention, as explained above, aims to protect children from the harmful effects of their removal or retention across international borders in violation of custody rights. It is prepared to ensure the immediate return of the child to their habitual residence and to respect the right of personal contact. For the court to make a decision on the application for the return of the child, it must first determine whether the removal or retention of the child was wrongful. In making this determination, the court may consider the law of the child’s habitual residence or the decisions of the competent authorities of the child’s habitual residence. If it is determined that the child was wrongfully removed or retained, the court should evaluate whether to order the return of the child considering the provisions of Articles 12(1) and (2), 13, and 20 of the convention.”General Assembly of the Court of CassationCase File No. 2017/2489, Decision No. 2018/1473
- Lastly, I would like to touch on paternity cases. These cases, filed to determine the lineage of children born out of wedlock, relate to public order. If the lawsuit is to be filed on behalf of a minor, a guardianship case must first be filed, and authority must be obtained from the Court of Peace. Subsequently, the guardian files the case. The guardian is usually the lawyer who will handle the case. Afterward, a paternity case is filed in the family court. DNA reports are crucial in such cases. Therefore, a security deposit is also required. Additionally, the petition must include the names, surnames, addresses, and identity information of the parents and the minor. Such cases are also notified to the public prosecutor by the court.
Concluding this article where I briefly discussed the marriage and divorce of foreigners in Türkiye and the recognition and enforcement of divorce judgments, I would like to recommend a work that I found beneficial and enjoyable, unrelated to the topic but potentially useful for my colleagues: “Nobelite” by Prof. Dr. Can Aktan. I also recommend Professor Can Aktan’s website to my colleagues.
Until the next article in this series…
AV. HALDUN BARIŞ
REFERENCES
Doğan, Vahit, Türk Yabancılar Hukuku, Yetkin, 2023
Ruhi, A. C. (2020). Türk Hukukunda Yabancı Boşanma İlamlarının Tanınması ve Tenfizi. On İki Levha Yayıncılık
Sezişli, V. . (2021). Yabancı boşanma kararlarının tanınması ve tenfizi (Yayın No: 705964) [Doktora, Ankara Hacı Bayram Veli Üniversitesi]. Yükseköğretim Kurulu. https://tez.yok.gov.tr/UlusalTezMerkezi/tezDetay.jsp?id=TRXYnhgq67WRI_i_vC80OQ&no=1rrmBzJJbh3cAgVCFFichw.
Tezgel, M. . (2011). Türk Hukukunda yabancı boşanma kararlarının tanınması ve tenfizi (Yayın No: 288355) [Yüksek Lisans, Ankara Üniversitesi]. Yükseköğretim Kurulu. https://tez.yok.gov.tr/UlusalTezMerkezi/tezDetay.jsp?id=cBVeQN3F813HMz4hBHL2mg&no=kvWsT1y2I4TXJeNkaxT0FA.
Öner, Şebnem Nebioğlu, Uluslararası Çocuk Kaçırmanın Hukuki Yönlerine Dair Lahey Sözleşmesi:Amacı, Uygulaması ve Kısa Bir İçtihat Analizi, TBB Dergisi 2014, http://tbbdergisi.barobirlik.org.tr/m2014-115-1438#:~:text=Uluslararası%20Çocuk%20Kaçırmanın%20Hukuki%20Yönlerine,tasarlanmış%20etkili%20bir%20mekanizma%20öngörmektedir .
