PRACTICAL INFORMATION ON FOREIGN LAW -2
(Marriage of Foreigners, Divorce Cases with Foreign Factors)
In this article, which will be the second of the series I plan to write about foreigners’ law, I will continue to mention some of the legal processes related to real persons as I mentioned in the first article.
At the beginning of the article, I would like to remind you again that I write these articles within the framework of academic ethical rules but without academic concern. I strive for the series to contain practical rather than theoretical knowledge.At his point, I would like to thank all the justice community employees, espically my colleagues, who commented on my previous article, reached out to me and thanked me, and asked their questions. I hope that this series will be useful to colleagues like me who are still in the early years of their profession and to colleagues who are new to the field of foreigners’ law.
In the previous article, I mentioned the processes related to residence permit, deportation, entry ban, INAD passenger, administrative detention decisions of foreigners in Turkey. In this article, I will mention cases such as the marriage and divorce of foreigners, and in summary, the paternity case. In the following articles, I will write about the foreign element malpractice case and now I will start to focus on the fields that I work more in, such as foreign element contracts and corporate law, investment law, energy law.
Before addressing the issues in the article, I would like to give a brief information here about a question that I think is important asked by a colleague of mine about the issues in the previous article:
My colleague’s question was°”When a foreigner who is in Turkey within the 90-day visa/residence permit exemption period applies for a residence permit during this period and his/her application is rejected, is the time spent in the application review process counted from the 90-day exemption process” .
As it is known, citizens of some countries are exempted from visa/residence permit for 90 days every 180 days. The question of our colleague actually happens to many strangers and is a matter of curiosity. In fact, since one of the purposes of the 90-day exemption in question is the time required for the application, the time spent during the application is considered to be from this exemption. After this brief information, let’s move on to practical information on foreigners’ law and first of all, let’s examine some frequently encountered family law issues:
3. Marriage and Divorce Cases of Foreigners
3.A. Marriage of Foreigners
First of all, it should be noted that Turkey is a country frequently preferred by citizens of countries such as Russia and Post-Soviet geography, Arab geography, Pakistan, China for marriage due to both its natural-historical beauties and its civil law compatible with the EU. The marriage certificate issued after the marriage ceremony in Turkey is an international marriage certificate. However, it is useful to make a small note here. Although this marriage certificate is an international certificate, it should not be forgotten that the marriage certificate must be apostilled for its validity in some countries.
Foreigners can get help from lawyers in Turkey during the marriage process. At this point, it is sufficient to make an appointment after providing the necessary documents (celibacy certificate, health report, passport translations). In these documents, it is very important that the names are compatible with the passport, there is no disruption in translations and the “celibacy certificate”.
3.B. Divorce Cases
Like the marriage of foreigners in Turkey, divorce is one of the most common situations. However, I think it would be useful to make a basic distinction when dealing with divorce cases related to foreigners’ law:
- Divorce of two foreigners in Turkey or divorce of one Turkish and one foreigner in Turkey
- Recognition-execution case regarding divorce cases outside Turkey
If two foreigners or a Turkish and a foreigner want to divorce in Turkey, it is necessary to look at IPCPL article 14 here. IPCPL article 14 is as follows:
“The reasons and provisions of divorce and separation are subject to the common national law of the spouses. If the parties are in separate citizenship, the law of common habitual residence shall apply, and if there is no such law, the law of Turkish law shall apply.
(2) The provision of the first paragraph shall apply to alimony claims between divorced spouses. This provision also applies in case of invalidity of separation and marriage.
(3) Custody and problems related to custody and in divorce are also subject to the provision of the first paragraph.
(4) Turkish law shall apply to requests for interim measures.”
At this point, it would be useful to mention the concept of “habitual residence”, which is frequently mentioned in the law. Habitual residence is a different concept from settlement and was taught to us in the faculty (Ankara Uni. Law) as “the law with which a person is associated”. The concept of habitual residence can be considered as “the law with which the person is in a social relationship” and “the law of the place where the person lives his/her life”.
Undoubtedly, the other issue regarding divorce is related to marriage goods and alimony. It is necessary to look at Article 15of the IPCPL on matrimonial property:
- “The spouses may expressly choose either the law of their habitual residence or national law at the time of marriage; in the absence of such a choice, the common national law of the spouses at the time of marriage shall apply to the matrimonial property, and in its absence, the law of their common habitual residence at the time of marriage, and in its absence, Turkish law shall apply.”
Paragraph 2 of Article 15 of the IPCPL emphasizes the exception regarding immovables:
- “In the liquidation of the goods, the law of the country where they are located shall apply to the immovables.”
The situation changes in alimony cases. Article 19 of the IPCPL Law No. 5718 regulates the applicable law to alimony cases:
ARTICLE 19- (1) Alimony claims are subject to the law of the habitual residence of the alimony creditor.
On the other hand, when determining the law to be applied by considering the aforementioned articles, it is necessary to refer to and take into account Article 5 of the IPCPL:
“ARTICLE5°– (1) In the event that the provision of the authorized foreign law applied to a certain event is clearly contrary to the Turkish public order, this provision shall not be applied; Turkish law shall apply when deemed necessary.”
Therefore, it is necessary to examine Articles 5, 14, 15, 19 of the IPCPL when determining the law to be applied in divorce and ancillary cases. These articles stipulate that if there is no common national law of the parties in the divorce case, if there is no common residence law, Turkish law will be applied; in alimony cases, the common residence law will be applied; in property regime cases, unlike divorce, if there is no common residence “or” common national law will be applied, the “moment of getting marriage” will be considered and if this is not the case, Turkish law will be applied. On the other hand, there is an exception to the immovables mentioned above.
If two Turkish citizens have divorced abroad, a recognition and enforcement lawsuit must be filed in order for this divorce to be valid in Turkish law. Recognition is required if it is only a divorce case; enforcement is required for decisions requiring enforcement such as alimony-compensation, etc. Enforcement is more inclusive than recognition decisions and includes recognition. However, in practice, I have also had files in which a verdict was made as “to be recognized and enforced” in lawsuits filed with the request of recognition and enforcement. In addition, when I read the old files, I saw that there were similar provisions.
Enforcement proceedings are regulated between articles 50 and 63 of the IPCPL. In the decision of the General Assembly of Civil Chambers of the Court of Cassation, the issue was handled in a very understandable way:
“The fact that civil lawsuits are a qualification regarding procedural law, the evaluations regarding the qualification and the types of lawsuits that will be civil lawsuits will be determined and evaluated according to the law of the country where enforcement is requested. On the other hand, the foreign judgment must be finalized in terms of its form according to the law of the country where it is issued. After examining the condition of legal benefit in the enforcement case and examining whether the judge who will make the decision meets the conditions sought in Turkish Law only in order to enforce the foreign decision, he/she will be able to make an exequatur decision if the conditions are found. It is not possible for the enforcement court to examine the law applied by the foreign court to the merits and whether it correctly applies its own procedural provisions in the same way and to examine the content of the foreign judgment (2675 p. IPCPL m.38/c, 5718 p. IPCPL m.54/a, b, c,°ç). However, it is the requirement of the mandatory provision of the Law No. 5718 that if the foreign court judgment is clearly contrary to the Turkish public order, it is in any way an obstacle to enforcement, …” and the concepts of recognition and enforcement have been explained and accordingly; it has been decided that the enforcement court does not have the opportunity to examine the content of the foreign judgment by making a substantive law and procedural law audit regarding the foreign court decision regarding a dispute arising from a private law relationship.” CIVIL GENERAL ASSEMBLY OF THE COURT OF CASSATION 2017/2-2669 DECISION NO: 2021/109 DATE: 18.2.2021
Another decision of the Civil General Assembly of the Court of Cassation regarding the recognition of foreign court judgments is as follows:
“The increasing intensity of cross-border relationships causes many°private law questions,°especially disputes arising from foreign marriages. While each state tries to protect its national interests with the decisions made by its own courts, it also has to observe the rules of respect for the national activities and the rights of individuals. The effectiveness of the decisions made by the sovereign states’ own courts is limited to that°country. Foreign court judgments can be recognized and enforced outside the country in which they were rendered, and have effect and effect only through recognition and enforcement of the judgment. As a rule, recognition and enforcement can be carried out by a separate lawsuit to be filed. With the recognition or enforcement decision as a result of these cases, the foreign court decision and the local court decision gain their force and quality” CIVIL GENERAL ASSEMBLY OF THE COURT OF CASSATION 2017/108 DECISION NO: 2018/1459 DATE: 18.10.2018
Following this summary and basic information, let’s touch on some important points and decisions and conclude the article:
-First of all, in practice, it is asked whether the lawsuits to which the holders of blue cards (persons who have obtained Turkish citizenship on leave) are parties have an element of foreignness. There is no foreign element in the transactions of people who has a blue card.
– The 1-year statute of limitations (Turkish Civil Code art. 178) in compensation lawsuits to be filed after the divorce case is 1 year from the finalization of the recognition-enforcement lawsuits:
– In divorce cases with foreign elements, if one of the parties is in abroad, a warrant is written to the General Directorate of Law and Foreign Relations of the Ministry of Justice and actions are taken in accordance with the “Communiqué on the Procedures and Principles to be Followed in Foreign Notification and rogatory Request”.In this communiqué, the necessary costs and other issues for the recourse procedures are discussed in detail. After depositing these expenses from the relevant banks, their receipts must be submitted to the bank.
For example, in divorce cases, a rogatory request may be made for economic and social status research.
It is also possible to have witnesses heard by way of rogatory. In addition, a questionnaire can be sent for witnesses who are Turkish citizens abroad in accordance with Code of Civil Procedure 244. In this case, expenses are deposited from the bank, the questions requested to be asked are submitted to the court as a statement, the judge also adds the questions he/she wants to be asked, transactions are made through the embassy, and the witness submits his/her written statements to the embassy in due time and the embassy sends them to the court. Thus, the witness is deemed to have been heard. Additional questions may be asked if needed.
– In cases with foreign elements, a warrant is also written to the Ministry of Foreign Affairs many times and information is requested. This information may be related to the existence of agreements, etc. In addition, in cases with foreign elements, a warrant may be written to the General Directorate of Foreign Relations of the Ministry of Justice and an opinion may be requested on the “reciprocity principle”.
– As can be seen in the decisions of the courts in the recognition and enforcement request in divorce cases, there are certain important issues: the°finalization of the decision to be recognized and enforced, the provision is not contrary to public order and Turkish law, the fact that there is an actual practice that makes it possible to recognize the verdict, and that it has legal conditions.
The issue of violation of public order is a very broad, comprehensive and controversial issue. Examples in this regard are noteworthy in Ahmet Cemal Ruhi’s Recognition and Enforcement of Foreign Decrees of Divorce in Turkish Law. In summary, regarding the recognition in Turkey of the divorce decree of a lesbian marriage in Denmark, the author stated that it cannot be recognized and enforced due to the violation of public order (there is an absolute and superstitious marriage), but the decisions regarding the members of the divorce (compensation, etc.) should be enforced in accordance with the principle of equity.
Another example in the aforementioned work is related to whether the sharia court decision will be recognized, where the talaq and divorce in Saudi Arabia and the testimony of the woman are not considered full witnesses. The opinion of the Ministry of Justice was taken on this decision and ultimately the court recognized the divorce case, taking into account the declaration of acceptance of the woman in the way she wanted to divorce. Information on the relevant letter is as follows:°Letter of the General Directorate of Legal Affairs of the Ministry of Justice dated 30.11.1990 and numbered 50308.
– In some countries where the Anglo-Saxon Legal System is adopted, a different procedure can be adopted in divorce cases. For example, in a divorce case in England, I saw that the case was very, very fast and the divorce took place without determining the defect, and the cases were carried out separately regarding financial issues. I was also surprised that the judge who gave the verdict was authorized in other cases regarding the consequences of the divorce. For example, my client’s ex-husbnad had used violence while meeting with his children, she made the application for measures and rearrangement of negotiations to the same judge and the judge quickly decided because she was familiar with the file, etc. Likewise, the fact that the place and time of delivery were specified in detail in the decision regarding the establishment of the relationship between the father and the children and that they were followed up with an application made me think.
– Another issue that we should mention in foreign divorce cases is the Hague Convention on the Legal Aspects of International Child Abduction. This contract and also the “European Convention on the Recognition and Enforcement of Decisions relating to the Custody of Children and the Return of Custody of Children” must be known and the procedures stipulated by the contracts should be operated in case of custody and°child abduction.
In addition, it is also important to issue a foreign exit permit (consent to be issued by the notary public) when the children will be taken abroad. If custody is in one parent, according to Turkish law, the permission of another parent is not required, but I recommend that this consent be issued by the notary public if possible in order to avoid problems in practice.
-Finally, I would like to mention the paternity cases. These lawsuits filed to determine the lineage of children outside marriage are related to public order. If the lawsuit is to be filed against the minor, first of all, a trustee lawsuit should be filed and authorization should be obtained from the Civil Court of Peace. Then the trustee opens the case. The trustee is usually the lawyer who will handle the file. Then a paternity lawsuit is filed in the family court. In such cases, the DNA report is important. For this reason, it is also requested to deposit collateral. In addition, the name, surname, address, identity information of the parents and the information of the minor should be written in the petition. Such cases are also reported to the Public Prosecutor by the court.
In summary, I conclude this article, in which I emphasize the marriage and divorce of foreigners in Turkey and the recognition and enforcement of divorce decrees. At the end of my article, I would also like to propose a work that I think will be useful to my colleagues, although it is not related to the subject, and I enjoy reading it, and I am extremely proud of every article in its content:Nobelite, Prof. Dr. Can Aktan
See you in another article of the series…
