DIVORCE PROCEEDINGS IN TURKEY FOR FOREIGNERS
Divorce briefly in Turkish Law; can be defined as the termination of the marital union by the court decision. The basic condition for divorce to take place is the existence of a valid marital union between the spouses. There is no obstacle to divorce before the Turkish Courts for spouses with a valid marital union. If the spouses want to divorce or one of the spouses has foreign citizenship, if their marriage is a valid marriage and their marriage is registered with the civil registration, it is possible to divorce with the decision of the Turkish Courts.
The law to be applied between spouses in divorce cases involving foreign elements is regulated in the first paragraph of Article 14 of the International Private Law and Procedural Law numbered 5718. Following the provision contained in this article; “The grounds and provisions for divorce and separation shall be governed by the common national law of the spouses. If the 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.” if foreign spouses wishing to divorce have the citizenship of the same country, the national legal rules will apply in the divorce case, if they do not have the same citizenship, the legal rules will apply in the place where is the spouses’ legal residence (domicile) if the places which are their legal residence are not common, the Turkish legal rules will apply. After examining the validity of the marriage between the spouses in determining the law to be applied to the divorce case, it should be checked whether there is a bilateral or multilateral agreement between the country in which the parties wishing to divorce are citizens and Turkey, and the law to be applied to the divorce should be determined after these studies.
In divorce cases that contain an element of foreignness, it is important to determine the citizenship status of spouses and the places in which they live. As for divorce cases that contain an element of foreignness, it would be correct to make a triple distinction, as below;
- Spouses are foreign citizens with domicile in Turkey,
- One of the spouses is a citizen of the Republic of Turkey and the other is a citizen of a foreign country,
- Spouses are foreign citizens who do not have a domicile in Turkey,
If the spouses are citizens of a foreign country with a domicile in Turkey, they have the right to file for divorce in the competent court where the legal residences are located, if they are registered with the civil registration and have a valid marriage. Also, Article 168 of the Turkish Civil Code regulating the authorization for divorce cases "In divorce or separation cases, the competent court is the place of residence of one of the spouses or the court where they have lived together for the last six months before the lawsuit." Following the open provision, they will be able to file a divorce case at the court of the place of residence of one of the spouses, whether they are a Turkish citizen or a foreign citizen, or the place where they have been living together for the last time.
If one of the spouses is a citizen of the Republic of Turkey and the other is a citizen of a foreign country, according to the provision of the Article 41 entitled “Lawsuits Concerning the Personal Status of Turkish Citizens” of International Private Law and Procedural Law numbered 5718 “If lawsuits concerning the personal status of Turkish citizens who do not have a domicile in Turkey are not or cannot be filed in the foreign state where they have their domicile and if there is no competent court in Turkey, the lawsuit shall be filed at the place of such citizen's residence; or if the person does not have a residence in Turkey, it shall be filed at his/her last domicile in Turkey. In the absence of the last domicile in Turkey, it shall be filed with the courts of Istanbul, Ankara, or Izmir” the divorce case can be filed in Turkish Courts as it is one of the cases related to the personal status.
If the spouses are foreign citizens who do not have a legal residence in Turkey, there are legal differences as to whether they can get divorced in the presence of Turkish courts. In our opinion, if foreign spouses who want to divorce and do not have citizenship of the Republic of Turkey and residences are in a close connection with Turkey and have the interests of pleading this divorce case in Turkey, according to the regulation of Article 9 titled “Jurisdiction related to the persons without a domicile in Turkey” of the law on Civil Procedure numbered 6100 “If the persons who do not have a domicile in Turkey, the court where the person concerned has a place of habitual residence shall have jurisdiction. However, the court at the place of the disputed property shall have jurisdiction over action in property rights as well. The other special jurisdiction provisions are reserved.” they can file a lawsuit in a court where is their residence. Besides, we think that these foreigners can divorce based on the provision of Article 42 titled “Lawsuits Concerning the Personal Status of Foreigners” of the International Law on Private and Procedural Law, “Decisions as to guardianship, tutelage, missing persons and the declaration of death concerning foreign persons who do not have a domicile in Turkey shall be determined by the court where the person concerned has a place of habitual residence, or if he/she is not resident, by the court where his/her assets are located.” As can be seen, in the relevant article, the competent courts have been arranged in which foreigners will see contentious judicial affairs, and since the contracted divorce institution is also contentious judicial affairs, we believe that foreign spouses who want to divorce and are not resident in Turkey can submit their demands for negotiated divorce under the provision of this article, and it is possible to accept their demands.