Divorces have links with the foreigner constitute a great importance on a theoretical but also practical point of view. In the article being discussed, mainly, the law to be applied by Turkish Courts for the divorce cases, international competence of Turkish Courts, accessory results of divorce, the property acquired during marriage as well as the notions of recognition and the exequatur shall be emphasized.
Law To Be Applied for Divorce Cases:
The applicable law for divorce cases having foreign elements is determined in the Article 14, entitled “Divorce and Separation” of the Law of Private International Law and the Procedure (LPILP). The article being discussed 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 demand for maintenance between divorced spouses. The provision also governs in case of separation and nullity of marriage.
(3) Custody and problems thereof in accordance to divorce is also governed by the provisions of the first clause.
(4) Turkish law shall govern demands for temporary measures.
As it is mentioned in the above-mentioned Article, the issue of which law to be applied for the divorce cases having foreign elements firstly it must be detected whether the spouses have common national law. The grounds and provisions for divorce and separation are 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 is governed.
For example, in case that each spouse is French citizen, the French law will be applied since common nationality of the spouses is French, according to the Article 14 of LPILP mentioned above. If the spouses have different nationalities, the law of the place of their common habitual residence is governed. What important is here, the determination of the notion of the habitual residence (“mutad mesken”). The notion of the habitual residence is a different concept from the notion of domicile (ikametgah). This notion is defined by the Article 19 of the Turkish Civil code as the “place where a person domiciles with the intention of staying there continuously” but the notion of the habitual residence, is rather defined by facts and not, by juridical terms. In Turkish law, there is no provision which defines it. Living in a place for a determined length of time is the most important essential element of this notion. The habitual residence is the place where a person lives, where he/she creates a very strong link with a patrimonial and personal attachment and it is also, where he/she accomplishes the most part of his/her daily activities. If the couple does not have a common habitual residence, then the Turkish law is applicable.
In order to clarify, if one of the spouse is of Turkish nationality and the other spouse is of German nationality and if parties live in different countries for many years, Turkish law will be applied in case of an eventual lawsuit to be initiated in Turkey since the parties have neither a national common law nor common habitual residence.
In case of the law to be applied is determined a foreign law other than Turkish law according to the nature of the situation, the court must receive support from the parties in accordance with the Article 2 paragraph of 1 LPILP, use the dispositions of European Convention on Information on Foreign Law , and after having determined the competent foreign law and its contents, the related law must be applied till the final court decision is taken.. In case the dispositions of the foreign law relating to such situation could not be determined in spite of all researches, Turkish law is applied.
Competent and Authorized Court for the Divorce Cases:
The competent courts for the divorce cases are determined as Family Courts in accordance with the Article 4 of Code of Procedures of Judgement and on the Competence of Family Courts. According to its dispositions, the divorce cases having a foreign element, must be brought before the Family Courts if there exist no Family Court within the place, the Civil Court of First Instance must fulfill this action function and bring up a judgment.
The Article 40 of LPILP determines which Family court shall be authorized. In accordance with that international jurisdiction of Turkish courts is determined by the domestic jurisdiction rules. The Article 168 of Turkish Civil Code stipulates a private jurisdiction rule for divorce cases. According to this disposition, the competent court for divorce is the court of the place where one of spouses resides or the place both spouses resides together last 6 months prior to the divorce case. Provided that the divorce cases are among the cases relating to the personal status of the persons, the Article 41 of LPILP governing competence in cases relating to the personal status of the persons will find an application area in authority of divorce. According to this article, if lawsuits concerning the personal status of Turkish citizens who do not have a domicile in Turkey are not or cannot be filed in the foreign State where they have their domicile and if there is no competent court in Turkey, the lawsuit shall be filed at the place of such citizen’s habitual residence; or if the person does not have a habitual residence in Turkey, it shall be filed at his/her last domicile in Turkey. In the absence of a last domicile in Turkey, it shall be filed with the courts of Istanbul, Ankara, or Izmir. The said article is applied in case that one of the parties is Turkish citizen. Considering that the rule about the competence relating to a divorce case is not in link with public order, in case of where the divorce case is brought before a non-competent court, this issue is not ex officio considered by the courts. However, if the adverse part asserts non-competency objection, the court takes into consideration such issue
Procedure Law To Be Applied:
In case that a lawsuit of divorce having foreign elements, is brought before Turkish courts the rules of Turkish juridical procedure shall govern. According to the doctrine, when the judge fulfils his juridical function, the rules of procedure which will be followed, are those of the judge. For the duration of the lawsuit the mode of collection of evidences, of asserting them and acceptance of them shall depend on rules of the procedure of the related judge.
One of the most important results of divorce is the alimony. Since the alimony is deemed as accessory result of the divorce, the law to be applied to the divorce shall be applied for such claims in accordance with the Article 14 paragraph 2 of LPILP. In addition, the Convention of The Hague about the law applicable to alimony obligations of which Turkey is a party mentions that the law applied for divorce of the spouses will also be applied to their requests of alimony.
Pecuniary and Non-Pecuniary Damages:
Since the pecuniary and non-pecuniary damages are deemed as accessory results of the divorce, the law to be applied to the divorce shall be applied for such claims. In the event that the foreign law foresees enormous damage amounts which may prevent to use the divorce right may be deemed as contrary to Turkish public order.
The law applicable for custody of the children in common was specified in Article 14 paragraph 3 of LPILP as mentioned above. According to this article, the law to be applied to the divorce, shall also be applied for custody and problems thereof.
Such as it is specified by the article 14 of LDIPP in its paragraph 4 above, Turkish law is applied for demands of temporary measures.; Given that the research of the dispositions of a foreign law shall take many times, and it will not comply with the urgency principle of temporary measures, Turkish law is applied for demands of temporary measures.
Liquidation of Matrimonial Property:
As part of the liquidation of matrimonial property, the law applicable to the liquidation of immovable is also separately determined. According to the related provision, in case of liquidation of property, the immovable are governed by the State law which they are located in. According to this disposition, the liquidation of movables will be made according to the law applicable to the liquidation of matrimonial property. The liquidation of immovable belonging to the spouses and located in Turkey will depend on Turkish law while the ones located abroad will depend on the foreign law where they are located. Besides, the 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.
In order to set an example, if a Turkish citizen whose habitual residence is in Germany and a British citizen whose habitual residence is in Canada got married, the spouses may choose one of the laws of Turkish, British, Canadian or German to be applied to the matrimonial property.
Validity and effects in a foreign country of a judgement of divorce rendered by Turkish courts:
In order that a judgement of divorce rendered by Turkish courts is recognized and ratified in the country of parties, it is firstly necessary that this judgement is translated and apostilled by the Presidency of the Justice Commission Court of Original Jurisdiction. An Apostille is the simplified certification of public documents (including notarized), for their international use in all nations that have joined the Apostille Section of the Hague Convention. Signatory countries have agreed under the Apostille Section of the Hague Convention to recognize public documents certified by the “Apostille”. This certification shall ensure that the parties shall apply for recognition and exequatur of the judgment as per to the related procedure of their countries.
Validity and effects in Turkey of divorce judgements rendered by foreign courts:
In order that a judgement of divorce rendered abroad can be valid and have effects in Turkey, provided that the judgment must be recognized and its effects must be ratified to have effect and bear consequences in Turkey. Recognition and exequatur have differences especially at the level of their conditions. Among these conditions, the most important issue is although for exequatur a reciprocity principle between Turkey and the State where the court rendered the judgment is sine qua non, for recognition there is no such condition. In order that that the court renders a judgment of exequatur, it is necessary that conditions below are met :
I. Existence of an agreement, on a reciprocal basis between Turkey and the State where the court decision is rendered or a de facto practice or a provision of law enabling the authorization of the execution of final decisions rendered by a Turkish court in that State
II. The judgment must have been rendered on matters not failing within the exclusive jurisdiction of the Turkish courts. The judgment shouldn’t be contrary to public order
III. The person against whom exequatur is requested was not duly summoned pursuant to the laws of that foreign State or to the court that has rendered the judgment, or was not presented before the court, or the judgment was not pronounced in his/her absence or by a default judgment in a manner contrary to these laws, and the person has not objected to the exequatur based on the foregoing grounds before the Turkish court. The authorized law as per to the rules of the Turkish laws of conflict has been applied for the foreign judgment concerning the personal status and Turkish citizen who is the applicant does not contest to the judgment of exequatur hereof
The competent court for the request for exequatur is stipulated in Article 51 of LDIPP. According to the Article 51 paragraph 1, the competent court is the court of first instance for the exequatur. However, according to the law on family courts, the judgments related to the family law are recognized and ratified by the family courts.
The competent court is designated in paragraph 2 of Article 51 of LDIPP. According to this article, these judgments shall be requested from the court at the place of habitual residence of the person against whom exequatur is requested if she/he has a domicile in Turkey or from one of the courts in Istanbul, Ankara or Izmir if he/she does not have a domicile or habitual residence in Turkey.