Foreign Element in Divorce Cases in Turkey

I. Foreign Element

A legal transaction or relationship involves a foreign or international element if it is connected to more than one legal system. In cases where one or both parties are not Turkish citizens, a foreign element is present.

In events or relationships involving a foreign element, the judge first determines the applicable foreign law according to the conflict of law rules in the Code on Private International Law and Civil Procedure. The dispute may be resolved under Turkish law or foreign law.

II. Applicable Law in Divorce Cases

In divorce cases involving a foreign element, it is essential to determine which country’s law will apply. This determination is made based on the rules of Turkish conflict of laws, considering the nationality, habitual residence, or domicile of the parties at the time of the lawsuit.

Article 14 of the Code on Private International Law and Civil Procedure (MÖHUK) states:
“The grounds and consequences of divorce and separation are governed by the shared national law of the spouses. If the spouses are of different nationalities, the law of their common habitual residence applies. If no common habitual residence exists, Turkish law is applied. The provisions of the first paragraph also apply to maintenance claims between divorced spouses. This provision is valid for separation and annulment of marriage. Issues related to custody and custody-related matters are also governed by the first paragraph. Temporary measures are subject to Turkish law.”

According to MÖHUK, in divorce cases, the shared national law of the parties is applied. If both spouses share the same foreign nationality, the divorce case will be adjudicated in Turkish courts under that country’s law. For instance, if both parties are German citizens, German law will apply to the divorce case. Failure to apply German law and instead applying Turkish law would be contrary to both the law and procedural rules.

If the spouses are of different foreign nationalities or if one spouse is a Turkish citizen and the other is a foreign citizen, the law of their common habitual residence is applied. A habitual residence does not require a formal intent to establish domicile but reflects a place of residence with a permanent intention. If the spouses have been living together in a country for an extended period, that country is considered their common habitual residence, and its law applies to the divorce case.

If one spouse is a Turkish citizen and the other holds dual citizenship, Turkish law will be applied if the dual citizen is also a Turkish citizen. This is because for individuals with multiple citizenships, Turkish law applies if one of their nationalities is Turkish.

If there is no common habitual residence, Turkish law will be applied to the divorce case. Additionally, applying the law of a foreign state may sometimes conflict with Turkish public order. In such cases, foreign law will not be applied. However, the conflict with public order must be clear and intolerable for foreign law to be excluded.

III. Applicable Law in the Dissolution of Matrimonial Property Regimes

In addition to divorce proceedings, the law governing the division of matrimonial property is of significant importance. In practice, Turkish law is generally applied to cases concerning the division of property for spouses who divorce under Turkish law.

Article 15 of the Code on Private International Law and Civil Procedure (MÖHUK) provides:
“Spouses may explicitly choose either the law of their habitual residence at the time of marriage or their national law to govern their matrimonial property. In the absence of such a choice, the shared national law of the spouses at the time of marriage applies. If no shared national law exists, the law of their shared habitual residence at the time of marriage is applied; if this does not exist either, Turkish law applies. For immovable property, the law of the country where the property is located governs its division. Spouses who acquire a new shared legal connection after marriage may, without prejudice to the rights of third parties, be subject to the law of that new connection.”

Spouses may select the applicable law for the division of property during marriage, choosing either the law of their habitual residence at the time of marriage or their national law. If no such choice is made, the shared national law of the spouses at the time of marriage is applied.

If the spouses do not share the same nationality at the time of marriage, the law of their shared habitual residence at that time applies. In the absence of a shared habitual residence, Turkish law will govern the division of matrimonial property.

For immovable property, the law of the country where the property is located must be applied. For instance, if the property is located in Germany, German law will govern its division.

After marriage, both spouses may acquire citizenship of another country. If they both become citizens of a new country, the division of property should be governed by the law of that new country. For example, if the spouses were Russian citizens at the time of marriage but later both acquired British citizenship, the division of property would be subject to British law.

Ece Deniz Vardar
Attorney at Law | Lawyer in Turkey

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