International Divorce Law
International divorce appears if there is a foreign element in the divorce lawsuit. Law No. 5718 on Private International Law and Procedural Law (“PIL”) regulates the applicable law to the disputes with a foreign element. It also regulates the international jurisdiction of Turkish courts and the recognition and enforcement of foreign judgments.
Foreign Element in Divorce Lawsuits
Foreign element appears if;
- the marriage takes place in a foreign country;
- one of the parties to the lawsuit is a foreign citizen;
- the residence of one of the parties is in a foreign country;
- if the habitual residence is in a foreign country.
Applicable Law in International Divorce Cases
Competent Law in International Divorce
The applicable law is Turkish law for Turkish citizens who have more than one nationality. If none of the spouses are Turkish citizens, the law of most relevant state applies. The divorce is as per the common national law of the spouses. If the spouses have different nationalities, the law of their common residence applies. Otherwise, Turkish law applies.
This is the same for alimony and custody claims. However, Turkish law applies for precautionary measures (temporary measures).
Competent Law in International Marriage
The marriage is governed by the national law to which the parties were subject at the time of marriage. If the parties have different nationalities, the law of their common habitual residence applies. Accordingly, the law of the country where the spouses reside together prevails. Otherwise, Turkish law applies.
Competent Law for Matrimonial Property in International Divorce
The marital property is subject to the common national law of the spouses. In case of different nationalities, the law of their common habitual residence applies. Accordingly, the law of the country where the spouses reside together prevails. If the spouses do not reside together in a country, Turkish law applies.
As for the immovable property, the law of the country where the immovable property is applies. Accordingly, even if the national law is different, Turkish law applies to the liquidation of immovables located in Turkey.
Turkish Public Order and Public Interest in International Divorce
Turkish law applies where Turkish public order requires and in cases contrary to Turkish public order. For this to be the case, the application of foreign law must lead to intolerable consequences and a clear violation of the Turkish public order. Foreign law does not apply if it is contrary to the fundamental principles of Turkish law, the basic understanding of justice, incompatible with the general political regime, economic regime and level of civilization, and fundamental rights and freedoms in the Turkish Constitution.
International Divorce Lawsuits
Law on Civil Procedure provides that the common national law of the spouses should apply to international divorces. If there is no common national law of the spouses, the law of their common domicile, or the law of their common habitual residence, or the law of the country where they are located on the date of the lawsuit applies.
For those who have more than one nationality, Turkish law is competent in cases where they are also Turkish citizens. In cases where they do not have Turkish citizenship, the law of the country with which they are more closely related applies.
Turkish law is also competent in the divorce cases of refugees, conditional refugees, persons under subsidiary protection and temporary protection status and stateless persons in Turkey.
Same applies to divorces from Turkish spouses abroad.
Examples for Competent Law in International Lawsuits
- Where one of the spouses has both Dutch and Turkish citizenship and the other spouse has only Turkish citizenship, the applicable law is Turkish law.
- If two German citizens do not have Turkish citizenship, the applicable law is German law.
- In case one spouse is Italian and the other spouse is Italian and Turkish, Turkish law applies.
- If the parties have different citizenships and their domicile or joint habitual residence is in Turkey, Turkish law applies.
International Jurisdiction in Divorce Lawsuits
The rule of jurisdiction applicable in domestic law is also applicable in cases with a foreign element.
Accordingly, the primarily Article 168 of the TCC regulates the jurisdiction of divorce.
Pursuant to this, in order for the international jurisdiction of the Turkish courts, the domicile for the last 6 months before the lawsuit must be Turkey.
Can Foreigners Get Divorced in Turkey?
Turkish courts are competent if one of the spouses reside in Turkey or the spouses’ last common residence was Turkey. In this case the Turkish court applies the common national law of the spouses.
Divorce from Turkish Spouse Abroad
If Turkish citizens do not or cannot file a lawsuit in foreign courts, the divorce case may be filed before the competent court in Turkey.
However, if there is a pending lawsuit in a foreign country, there might be international pendency objection. If so, the case filed in the Turkish courts will be dismissed. In this case, the divorce judgment obtained in the foreign court should then be recognized and enforced by Turkish courts.
Turkish Embassy or Turkish Consulate serves the notices to Turkish citizens who live abroad. The documents can be in Turkish. In order to send the notification, there is a foreign notification fee.
How Can I Divorce My Foreign Spouse?
Divorce from a foreign spouse or divorce from a spouse abroad is possible before Turkish courts.
In order for Turkish courts to hear the case, the place of residence of the spouses for the last 6 months before the case must be Turkey or the residence of one of the spouses must be in Turkey.
The other spouse does not need to be present in Turkey. Turkish court will serve the court papers to the counter party in his foreign address. Yet, this might take longer than usual proceedings. To prevent this, the counter party may assing a divorce lawyer in Turkey.
Notices in International Lawsuits
If parties have no registered address in Turkey according to the Foreigners’ Register, the court documents translated into the language of the country of origin can be delivered through the Ministry of Foreign Affairs.
It is mandatory to deliver the notice in order to exercise the right of defense. Otherwise, the divorce decision will be contrary to the procedural rules. International divorce lawyers can carry out all necessary translation, notification and file follow-up procedures.
Compensation to Foreign Spouse
Material and moral damages are among the financial consequences of divorce for spouses. In Turkish law, the spouse who is less at fault is entitled to compensation. Even if the national law does not allow compensation, Turkish courts would grant compensation if there is a request.
Alimony in International Divorce Lawsuits
The temporary injunctive alimony during the lawsuit is subject to the common national law of the spouses. If the parties have different nationalities, the law of the common habitual residence applies. Otherwise, Turkish law applies.
According to Article 8 of the La Haye Convention on the Law Applicable to Maintenance Obligations dated 1973, the law applicable to divorce governs the poverty alimony.
On the other hand, pursuant to Article 19 of the LPCL, alimony claims are dealt with in accordance with the law of the habitual residence of the alimony creditor. Article 8 of the La Haye Convention of 1973 provides that the habitual residence of the spouse who has custody will regulate the child support. In this respect, if the custodial spouse lives in England, maintenance for the child will be determined according to the English laws by Turkish courts.
Poverty alimony will be awarded in a divorce case in Turkey, whether it is regulated by foreign law or not.
Custody in International Divorce
Custody in divorce is regulated under Art. 14 f. III of the Civil Procedure Law. Accordingly, custody will be in accordance with the common national law of the spouses. If the spouses have different nationalities, the law of their common habitual residence applies. If the spouses do not reside together in a country, Turkish law applies.
For example, the custody of a child born out of a marriage between a British father and a German mother will be as per Turkish law if there is no country of habitual residence or if they last lived together in Turkey.
According to Article 336 of the Turkish Civil Code, the parents have joint custody as long as the marriage continues. If there is a divorce, the court decides which spouse will have the custody during the divorce proceedings.
The best interests of the child determines custody. The court tries to preserve the living conditions and habits of the child such as school and house. Also the court tries not to seperate siblings. If the child is minor, the court tries to prevent seperation from the mother.
Can I Take My Child Out Of Turkey?
If the foreign spouse has the custody of the child, the foreign spouse can take the child abroad. The foreign mother who has custody, for example, is free to raise the child in the country of her choice. This alone does not constitute a crime and is not against the law. In fact, preventing the foreign national who has custody from taking the child abroad is against the constitution.
However, if the custodial parent takes the child abroad and prevents the child from meeting with the other parent, the court may change the custody and give it to the other parent. As a matter of fact, the best interest of the child requires the continuation of personal relationship with both mother and father.
Visitation Days of the Child
In Turkish law, when deciding on divorce, the judge, after hearing the parents, decides to give the custody. Then it regulates the personal relationship of the non-custodial parent with the child. In regulating the personal relationship of the non-custodial spouse with the child, the court considers best interests of the child in terms of health, education and morality.
Pursuant to Article 14 f. I of the LPCL, the personal relationship with the joint child is in accordance with the common national law of the spouses. If the parents have different nationalities, the law of the common habitual residence applies. If this is not the case, Turkish law applies.
As per Article 326 of the TCC, the competent court for the establishment of the personal relationship is the court where the child resides.
Division of Marriage Assets in International Divorce
After the divorce, the spouses share the marital property by a property division case. The common national law of the spouses at the time of marriage, or the law of habitual residence at the time of marriage, or Turkish law applies to division of assets.
The rules for the immovable property is the law of the country where the immovable property is. It is not possible to file a property division case in Turkey for immovable property that are abroad. Likewise, a foreign divorce court decision is not valid for the real estates in Turkey.
Recognition and Enforcement of Foreign Divorce Judgments in Turkey
The parties must file a lawsuit before Turkish courts to be able to enforce the foreign judgment in Turkey. International divorce lawyers can enforce the judgments obtained in foreign courts in Turkey.
Would a Divorce Abroad be Valid in Turkey?
Divorced couples in a foreign country may still appear as married in Turkey. In international divorce cases, Turkish courts must recognize and enforce the foreign divorce decree. The recognition and enforcement of the foreign divorce decisions may be carried out by the Civil Registry Offices, Turkish foreign representation abroad (Embassy or Consulate) or courts.
The conditions for the Population Directorate or Embassy to register the foreign divorce decree directly are as below:
- The divorce decree must be finalized
- Turkish citizens applying together
- The foreign divorce decree must not be clearly contrary to the Turkish public order.
Does Citizenship Lapse After Divorce?
If you obtained the Turkish citizenship, you will not lose it in case of a divorce. However, if the marriage lasted less than 3 years, you cannot get Turkish citizensihp.
On the other hand, the residence and work permits may have to change after divorce.
2023 Attorney Fees in International Divorce Lawsuits
According to the 2023 Lawyers’ Minimum Fee Tariff, the minimum fee for a divorce lawyer in family courts is 9.200 TL plus VAT. However, there are fees and expenses for filing a lawsuit and for the continuation of the proceedings. Although these costs may vary, a litigation fee is approximately 1,000 TL. Therefore, the cost of divorce from a foreign spouse is at least 11.000 TL. The amount of the fees may vary depending on the workload and the discretion of the lawyer.
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