Introduction to Jurisdiction of Divorce in Turkey
Author: Mr. Gökhan Cindemir , Phd Candidate , Senior Partner Lawyer cindemir@cindemir.av.tr
competent court related to the foreign elements involved divorce cases are the courts which have jurisdiction over concerning alimony, guardianship, liquation and compensation. Accordingly, a foreign decree encompassing orders of alimony, guardianship, compensation and liquation may refer to Turkish Courts’ competence as an international jurisdiction arising from articles 40 and 41 of international private law. Articles concerned also refers to Article 168 of Turkish Civil Code. According to the provision, 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. Therefore, generally speaking, Turkish Law does not prohibit foreign court’s divorce jurisdiction based on location principle which is indicated in the provision mentioned above.
The other possibility is in case of judgement given by foreign court containing elements related to alimony, guardianship, compensation which are against “Turkish Public Order”, that judgement will not be enforced by Turkish Government. In that situation, solely judgement’s recognition can be carried out by Turkish Court, not enforcement. For instance if foreign court decided that guardianship of common child must be given to one of the spouse but child’s psychology is disregarded while giving the judgment, in that case Turkish Courts only recognize the decision and rejects enforcement of the decision based on violation of Turkish Public Order. In that situation, both spouses must open a new case again in Turkey to fix guardianship status in accordance with Turkish Law. As can be seen that, Turkish Law envisages that issues which can be against Turkish Public Order must be reviewed again under Turkish Jurisdiction. Turkish Public Order criteria related to Divorce Cases are explained with more details below:
Boundaries of Jurisdiction in Divorce Under Turkish Law
It is noteworthy to mention that below criteria cannot be found in Turkish Legislation. These principles became precedent by high court decisions
Child Support Maintenance
A foreign court may give a judgement regarding child support, this judgement solely does not constitute a problem for Turkish Public Order. On the other hand, if a foreign court did not consider the income of the spouse who will pay the alimony, Turkish Court may find it as a violation of Turkish Public Order. Accordingly, rocketing amounts of child maintenance will not be enforced by Turkish Court and that issue must be reviewed under Turkish Jurisdiction with an independent case.
Alimony
From the perspective of consideration of spouse’s income, the same criteria related to “Turkish Public Order” mentioned under title of Child Support also exists for Alimony.
Guardianship
In case that a foreign court will give a judgement concerning guardianship without taking consideration of child’s benefits. For instance, if foreign law gives guardianship Rex Officio to the mother or to the father without examining the needs of the child, Turkish Court will reject enforcement of the judgement based on “Turkish Public Order” Especially if guardianship is decided based on discriminative purposes such as ethnicity, religion, ages or sexuality would be found against “Turkish Public Order”. There are also high court decisions which support this point of view. In case that foreign court does not touch on guardianship issue in its judgement, then there would be no violation of “Turkish Public Order.
Compensation
In case of enforcement of foreign divorce decree in Turkey, Turkish Courts will not examine justness of conviction of compensation. Thus, Turkish Court will not review the reasons related to compensation issue. However, if amount of the compensation given by foreign court significantly causes over exploitation of one of the spouses, Turkish courts would reject enforcement of that decision. Accordingly, compensation determined by foreign court must not cause poverty on one party and at the same time enrichment on another party.
Immovable Assets
It is very important to note that Turkish Courts will not reject enforcement of a foreign divorce decree given by foreign court if the decision does not refer any real estate property in Turkey (Turkish Civil Procedural Law). Main principle of Turkish Law related to real estate property situating in Turkey is defined as “exclusive competence”. Therefore, in case foreign court gives an order related to the real estate property in Turkey, that part of foreign decision cannot not be regarded as enforceable. Thus, a new case must be filed in Turkish Courts related to real estate property for liquation of common assets stemming from family relationship. “Disputes involving real property is to be suited in the court of place where it located” (CC. Pr.Art. 13)
In that case as mentioned already, Turkish Law and related high court decision refers to the necessity of opening an another case in Turkish court of real estate property which has jurisdiction. If the divorce case is filed in Turkey, Turkish Courts would be able to give a decision related to real estate property located in Turkey. However under reciprocity principle, Turkish Court would also avoid to give a judgement concerning the real estate property located in other country
Lastly, it is important to state that, assets stemming from inheritance are regarded as private personal belonging under Turkish Law which means that in case of litiquation of the assets, property acquired by inheritance are totally belonging to the heir.
Asset division/liquidation of the matrimonial property regime
Under Turkish Law, the spouses may regulate their property relations before or after their marriage by means of a contract “marriage settlement”. They may choose one of the contractual systems which are of three kinds as, property separation (mal ayriligi), common property system (mal ortakligi) and partionary property separation system (paylasmali mal ayriligi) The legal property system is called as “system of fusion of the acquired property” (Civil Code Art. 218.241) which basically depends on the participation of the property and income acquired during the marriage. This property may be called as “marital” or “community property”, in other words matrimonial property systems.
Accordingly, Turkish Law also recognizes matrimonial property system as one of the selection of contractual marriage. In that regard, decision given by foreign court related to liquidation based on matrimonial property system will not constitute any problem regarding enforcement of the judgement in Turkey. And under Turkish Law, competent court which has jurisdiction for liquidation is the court which also have jurisdiction for divorce. In other words, the court which has jurisdiction for divorce must decide on liquidation of assets also. (Article 168 of Turkish Civil Code). As a response to your question, there is no separation between jurisdiction to liquidation of assets and jurisdiction of divorce.
Jurisdiction of Divorce under Turkish Divorce Law
Divorce suits may be brought in the place of court of the plaintiffs domicile or the cohabitated domicile of the spouses used within the last 6 months (CC.Pr. Art 9/3)
As can be seen above, there is no any provision prohibiting divorce case against Turkish Citizen in foreign country. Unlike some strict countries, jurisdiction principle is not based on nationality principle, it is based on location principle.