Rule of Law:

Divorce and custody across borders

by Murat DEMİR & İbrahim YÜCE

Article 13 of Law No. 2675 on International Private Law and Procedures Law sets out the rules for divorce and separation. According to this “the causes and terms for divorce and separation are subject to the partners’ shared national law. If the partners are of different nationalities, then the law in effect in the place of shared residence, or if that is not applicable the law in effect in the habitual place of residence, or if that is not applicable Turkish law shall apply.”

As is clear from the legal provision, if foreigners applying for divorce to Turkish Courts are the subjects of the same country then the law which will be applied to their case is the law of their own country. However, if the partners are of different nationalities then the law of the country in which they reside together shall apply. If they do not reside together, then the law of the country in which they habitually reside will be applied. If no such country can be determined, then Turkish Law will apply.

It is only to be expected that every state will itself proclaim the international authority of its courts. In Turkish law, the subject of international authority was first regulated under a system set out by Law No. 2675 on International Private Law and Procedures Law.

When a couple of shared nationality apply for divorce in a Turkish court, authorised examples and Turkish translations of their country’s law are obtained, and the law in question is then applied.

The procedures for the application of the law in question will depend on the procedures of the court which made the decision. In the case of a procedural error, any objection will be decided by application to the next highest court under the procedure of the decision-making court in Turkey, which would be the High Court (Yargıtay).

The question of who will take guardianship (custody) of children for a foreign couple applying for divorce to a Turkish Court is regulated in Article 20 of Law No. 2675. According to this, “in case of a divorce, the law to which the divorce is subject will be applied for purposes of guardianship and problems regarding guardianship.” As explained above, should a couple of the same nationality apply for divorce to a Turkish court, the guardianship arrangements which exist under the law of their own country will be applied by the Turkish court.

Divorce under Turkish law

Should one of the partners be the citizen of a different country and the couple reside in Turkey, then Turkish law will apply to their divorce case. In this case the terms of the Turkish Civil Code (Law No. 4721) will be applied to their case. Under Article 134 of Law No. 4721, “in cases where strong discord has set in between the parties resulting in a fundamental rupture of the union of matrimony, then a decision of divorce will be made”. However the existence of such a state of affairs will not be accepted based simply on the parties declaring it to be so. Declarations the parties make in court will have to be proved in accordance with Turkish Law. The main means of proof will be for witnesses who know the parties and are informed of the status of their marriage to testify in court. Apart from strong discord, the Turkish Civil Code accepts very severe treatment, an attempt on life, mental disease and adultery as reasons for divorce. If, apart from witnesses’ testimony, there is documentary evidence (reports, letters, sound and visual recordings, etc) which support the cited reason for divorce, then the case may be proved and a divorce verdict arrived at on the basis of these.

If the party seeking divorce informs the court of his or her desire for divorce in person or through his or her lawyer and the defendent declares that he or she does not want a divorce, the court will investigate which of the parties is at fault. If the judge identifies the party seeking the divorce as less at fault or faultless by comparison with the party who does not want a divorce, then the divorce will go through in accordance with the demands of the plaintiff. If, however, the investigation yields results which show that the suing party is more at fault than the defendant, the divorce case will be refused.

If a couple who are to be divorced have children under the age of eighteen an investigation is undertaken by the court judge and the court psychologist to determine which party will be able to raise the young child in a more healthy way, and guardianship is decided, in the child’s interests, in accordance with the outcome of this investigation. The investigation is concerned not only with the socio-economic status of the parties but also with their moral outlook, their life style, whether they have any undesirable habits such as alcohol or drug abuse and finally the living space in which the child will be raised.

According to Article 166/3 of the Turkish Civil Code, in the case of a marriage which has lasted for at least a year, should both partners apply for divorce, or should the defendant accept the plaintiff’s case, then the union of matrimony may be considered to have been fundamentally ruptured. Even then, the judge must personally give an audience to the parties, come to the conclusion that they are expressing their will freely and view the financial consequences and the arrangements to be made for the children as acceptable.

If the parties do not appear in person and declare that they have reached agreement regarding the divorce, or if the judge does not approve their agreement, then the parties will be required to produce evidence and a decision as to whether the union of matrimony has been fundamentally ruptured will be taken in the manner explained above.

Attendance at hearings

When one of the parties seeks a divorce for reasons other than an agreed divorce, this party will not make the applications in person but will do so through an attorney, and the divorce case will be heard and decided without attendance at hearings. However, according to Article 166/3 of the Civil Code, which regulates agreed divorce, it is not sufficient for an attorney to voice the plea and it is required that both the plaintiff and the defendant of the divorce case should express their will in person in court. The divorce verdict is only issued after the parties have repeated in court the agreement protocol which they prepared before applying to the court, have had it put on record and have signed it. The protocol should not only express the parties’ will to divorce, but should also state whether they have any claims for material or moral damages, who is to take the guardianship of any shared child, whether they are making any demands for alimony and finally how any moveable and immovable property is to be divided between the parties. If the protocol fails to deal with one or more of these issues, then it is up to the judge to identify what sort of agreement has been made regarding the relevant points by asking the parties to the divorce. Should the prepared protocol be refused during the hearing, the protocol will become null and void, and the parties will have to determine new principles and conditions for their agreement in court.

In conclusion, the question of which country’s law will apply in the case of foreigners filing for divorce in Turkey is settled by Article 13 of Law No. 2675 on International Private Law and Procedures Law. In accordance with this arrangement, it has been decided that divorce between citizens of the same country will be determined in accordance with the law of their own country. For foreigners who are citizens of different countries and who reside in Turkey, divorce cases will take place in accordance with the rules set out in the Turkish Civil Code. Divorce cases conducted under this law decide, as part of a single case, not only on divorce as such but also on problems and demands arising from it, such as the guardianship of any shared, under-age children, the parties’ claims on one another for material and moral damages and the division of moveable and immovable property. 

( DIPLOMAT  -  June 2006  -  Ankara )