Family Law.Marriages & Divorce and General Information
As Fethiye Lawyer & Fethiye Solicitor, We can help you when you divorce or get married. We can consult you.
Family Law. Foreign marriages are recognized in Turkey. Under the International Private and Procedural Family Law, the legal capacity to marry must be governed by the respective national laws of the parties at the time of the marriage. The formal requirements and conditions of the jurisdiction where the parties married must be applicable. The marriage will not be considered to be invalid in Turkish law if it occurred abroad and is not registered with the Turkish authorities.
All families in Turkey are registered at the population register. After each change in the structure of a family it is required to be mentioned that to the Turkish authorities. After getting married in Turkey, you have to notify the population register. In the case of divorce, you will need a Turkish court decision to notify it at the population register.
Family Law and Divorce in Other Countries
If the spouse’s divorce in other countries and they obtain a court decision there, the divorce won’t be recognized in Turkey. You have to start a recognition procedure of foreign divorce cases.
In the case of that, the divorce procedures have been started in Turkey. You have to give a power of proxy to a Turkish attorney.
You might choose an open trial which is public or it will take place with the doors closed. The Turkish judge may offer a period of three years for the reconciliation of the spouses. After this period, if the spouses continue to ask for the divorce, the judge will give a court decision.
Family Law and Children custody
The family regulations in Turkey include the rules regarding children, especially when their parents decide to divorce. The rules related to custody could be found in the Civil
Code Law No. 4721 stipulates that the mother and the father have custody rights until he/she is 18 years old.
If they divorce, the custody is given to one of them. The parents are the legal representatives of a child until he/she is 18 years old; after this age, he will represent himself and his/her parents aren’t allowed anymore to act on his/her behalf. During the years when the child is minor, his/her parents are required to take care of him/her, educate and ensure the means of living. The children must respect their parents and their will and they are not allowed to leave their house without parents’ consent.
When it comes to a divorce
When it comes to a divorce and the judge must decide what parent takes the custody of the child, there are a few factors that will influence the decision. The major factor is the possibility of a parent to offer the child a better life, better education, and living. The judges usually offer custody to the mothers because they are considered more appropriate to take care of young children. The father can take custody if the mother is not able to ensure proper education and living for the child.
Disputes involving a foreign element
Under Turkish law, if the dispute involves a foreign element, the habitual residence test will determine the applicable law. The grounds and provisions for divorce and separation are governed by the common national law of the spouses, as provided in the International Private and Procedural Code. If the spouses have different nationalities, the law of their common habitual residence will apply. In the absence of such residence, Turkish law will apply. The same provisions also apply to claims for:
- Spousal maintenance.
- Nullity of marriage.
The spouses can choose either the law of their habitual residence or the national law at the time of marriage to govern their matrimonial property. If no choice is made, the common national law of the spouses at the time of marriage will apply. In the absence of common law, the law of their habitual residence at the time of marriage will apply (or in the absence of such law, Turkish law will apply). Additionally, any litigation concerning the personal status of foreigners such as guardianship, tutelage, missing persons and the declaration of death concerning foreign persons that do not have a domicile in Turkey will be determined by the court where the person concerned has a place of habitual residence, or if he is not resident, by the court where his assets are located.
Disputes not involving a foreign element
If the dispute does not involve a foreign element, domicile residence is important for determining the competent court. However, under the Civil Code, if the claimant (either the husband or wife) has an independent residential property and has been living with his or her spouse for at least six months before filing for divorce, the case can be filed to the court where the husband or wife resides or where they have resided together. This means that habitual residence can also apply and not just domicile residence. The same rules apply for financial arrangements as these are seen as secondary provisions of the divorce decision. Habitual residence is applicable when determining monthly child maintenance payments.
Conflict of Law Procedure
A foreign judgment without recognition and enforcement in Turkey cannot be subject to a judgment by the Turkish courts. However, in the 15th Civil Chamber’s decision of 21 June 2012, 2011/2901 E and 2012/4661 K, the Court of Cassation ruled in a decision from the Romanian courts regarding a case pending in the Turkish courts as it was found to constitute a “prejudicial question” under Turkish law. Although there are many other examples where the Supreme Court refused to order a prejudicial question (for example the 2nd Civil Chamber’s decision of 18 September 2008 and 2008/11211-12168 and the 2nd Civil Chamber’s decision of 3 May 2011 and 2010/5217 E. and 2011/7574 K).
If the foreign court’s judgment can be recognized and enforced, the Turkish courts will order a prejudicial question for the case pending in the foreign courts. Foreign pendency is one of the obstacles for Turkish courts to rule on a foreign element case. Foreign pendency is the result of a case pending in the Turkish courts and a foreign court, where the parties and subject matter of the case are the same. A plea of pendency is a method of preventing a judgment from the court that the parties prefer.
In order to determine forum issues the court will consider the following factors:
- Whether one of the parties is Turkish.
- The legal action brought in a foreign country relating to the Turkish citizen’s personal status.
- Whether the legal action and subject matter of legal action is the same.