As it stands, matters of jurisdiction in international family law matters are of paramount importance, while seeking ultimate resolution to these legal issues. Having said that, in order to be able to file a divorce lawsuit before a Turkish Court, the Court shall have the jurisdiction to handle the case which is judged based on the Turkish Law.
As it stands, matters of jurisdiction in international family law matters are of paramount importance, while seeking ultimate resolution to these legal issues. Having said that, in order to be able to file a divorce lawsuit before a Turkish Court, the Court shall have the jurisdiction to handle the case which is judged based on the Turkish Law. Even, if the Court procedurally rules its own jurisdiction for such a lawsuit, it is equally crucial to determine the applicable law to the merits of the divorce case.
Initially, Article 1 of the Turkish International Private and Procedural Law (Law No: 5718) (“MÖHUK”), states that jurisdiction of the Turkish Courts and the applicable law to the merits of a dispute shall be determined by MÖHUK regarding disputes containing foreign elements.
The Jurisdiction of The Turkish Courts Regarding to the Divorce Cases
Article 40 of MÖHUK states that international jurisdiction of Turkish courts shall be determined by jurisdiction rules that are stated by domestic laws. According to this provision, determining jurisdiction of Turkish Courts for cases that contain foreign elements, domestic jurisdiction rules shall be examined.
Accordingly, Article 6 of the Civil Procedure Law (Law No: 6100) sets forth general jurisdiction rule which is applicable to all civil law cases, including divorce lawsuits. Said article states that the Court which holds general jurisdiction to handle a lawsuit is the court established at the domicile of the defendant, at the date of the registry of the case.
Besides the above-mentioned general rule, Article 168 of the Turkish Civil Code (Law No: 4721) states that, special jurisdiction rules which are applicable only for divorce cases. According to this, Courts that have jurisdiction on divorce proceedings are courts of the domicile of the one of the spouses and the court where the spouses lived together for the last six months before the case is registered.
Applicable Law to Divorce Suits
As it is mentioned above, as per to Article 1 of MÖHUK, applicable law regarding in divorce lawsuits that contain foreign elements shall be detected by the MÖHUK.
According to the Article 14(1) of MÖHUK, grounds and provisions for divorce and separation shall be governed by the common national law of the spouses. If spouses have different nationalities, the law of the place of their common habitual residence, in case of absence of such residence, Turkish law shall govern to the divorce case.
That said, Turkish Law detects the applicable law in divorce cases by scrutinizing nationalities of the spouses. MÖHUK also states that which nationality shall be taken into account in the cases where the one of spouses change his/her citizenship status.
In alignment with above, as per to Article 3 of the MÖHUK in cases where the applicable law is to be determined by nationality, domicile, or habitual residence, nationality, domicile, or habitual residence on the filing date of the lawsuit shall establish basis for determining the applicable law, unless otherwise stipulated.
MÖHUK also contain provisions on which citizenship shall be taken into consideration during the processes of detection of law applicable law if one of the spouses is stateless or possess multiple citizenships.
Accordingly, as per to Article 4 of the MÖHUK, if applicable law shall be detected pursuant to nationality under MÖHUK, unless otherwise provided, the following laws shall be applied:
a) With respect to a stateless person, the law of the place of his/her domicile, in the absence thereof, place of his/her habitual residence, and in the absence thereof, the state where he/she is residing on the date of the lawsuit,
b) With respect to a person of multiple citizenship where he/she is also a Turkish citizen, the Turkish law,
c) With respect to a person of multiple citizenship where he/she is not a Turkish citizen, the law of the state with which he/she is most closely connected. The provisions of Article 14(1) are also applicable for some of related consequences of divorce cases. In this vein, Article 14(2) states that the provisions of Article 14(1) shall also govern demands for alimony between divorced spouses. Likewise, as per to Article 14(3), matters related to custody and guardianship that arise within divorce proceeding are also governed by provisions of the Article 14(1). Moreover, Article 14(1) also governs lawsuits concerning separation or nullity of marriage.
Article 14(4) states that Turkish law shall govern demands for temporary measures. Thus, regardless of the nationalities of the spouses, applicable law for the temporary measures, such as interim decisions on custody of the children or alimony, is Turkish Law.
It should be noted that regardless of the above-mentioned provisions, in certain circumstances Turkish Law shall also be applicable to the case. Accordingly, as per to Article 2 of the MÖHUK, if applicable foreign law provisions cannot be ascertained, despite all efforts and research of the Court, Turkish law shall be applied.
Another similar provision, where Turkish Law becomes applicable regardless of the nationality of spouses is envisaged by Article 5 of MÖHUK. Accordingly, if provision of relevant foreign law to be applied in a certain case is clearly is in violation with Turkish public policy, said provision shall not be applied. In case deemed necessary, Turkish law become applicable.
Should you have any question or inquiries about Turkish and
international family law practice, please do not hesitate to contact us at
info@guzeloglu.legal.