Divorce of foreigners is regulated under the title of Divorce and Separation in Article 14 of the Law No. 5718 International Private and Civil Procedure Law. According to the related article;
1. 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.
2. The provisions of the first clause shall also govern demands for maintenance between divorced spouses. This provision also governs in cases of separation and nullity of marriage.
3. Custody and problems thereof in accordance to divorce is also governed by the provisions of the first clause.
4. Turkish law shall govern demands for temporary measures. The main of these measures are issues such as sheltering, caring, protection, subsistence of spouses and children, and management of spouse’s property. Turkish Law is applied to prevent loss of rights in these matters.
There Are Two Situations That Can Be Encountered in Case Of Divorce Case of Foreign Citizens
• The first is that one of the spouses is a Turkish citizen and the other is a foreign citizen.
• The second possible case is that both spouses also foreign citizens living in Turkey. In the first case, if the foreign spouse filed for divorce in his own country; The Turkish citizens must reside in the divorce application in Turkey. In the second case, the common national law of foreign spouses is enforced, if it has to be in separate citizenship, common habitual residence law is applied, and if there is no habitual residence, Turkish law is applied.
In summary; foreign nationals married couples can get divorced in their own country or habitual residence is located in Turkey. The court to open the case is the Family Court. The competent court is the court where habitual residence is located. If they are divorced in their own country; To gain recognition by the Turkish courts and the validity of the divorce proceedings in Turkey are required to request the enforcement.
For example, a Turkish citizen who married German citizen can divorce in Germany or Turkey (if they have habitual residence in Turkey.). General power rules apply here. To open and continue the divorce case with the help of a lawyer, a lawyer must be given a power of attorney.A power of attorney is required for the execution of all works and transactions in court as a proxy during the trial.
Divorce Cases Are Special Cases
People living in Turkey as people living abroad can give power of attorney to a lawyer and notary public may submit the power of attorney to a lawyer through the consulate in Turkey. Divorce cases are one of the special cases that require special power of attorney. The person has to give his attorney a special divorce proxy. In this power of attorney prepared at the notary public, all powers should be listed.
There must be photographs in these power of attorneys. It is also possible for people abroad to give a power of attorney to the relevant consulate. For example, he can give power of attorney to his lawyer living in İzmir. The person concerned will send this power of attorney to his lawyer and will be able to have his lawyer sue for the type of lawsuit he wants.
In terms of practice, more commonly, as the German courts granted the divorce judgment of the competent Turkish court approval to be valid in Turkey, so Recognition and Enforcement is required. This process is like a second divorce. Law No. 5718 on International Private Law and Procedural Law Article 58 made the recognition of foreign court decisions in Turkey.
Recognition is only related to divorce decision and enforcement requires enforcement decisions. The court in charge of recognition and enforcement cases is the Courts of First Instance in accordance with Article 51 of the International Private Law and Procedural Law. The competent courts are included in article 51/2 of MÖHUK: These decisions shall be requested from the court at the place of habitual residence of the personal against whom enforcement is requested if he/she does have a domicile in Turkey, or from one of the courts in İstanbul, Ankara or İzmir if he/she does not have a domicile or habitual residence in Turkey.
Documents required for recognition and enforcement; The original or certified copy of the divorce decision issued by the foreign court, the annotation indicating that the divorce decision has been finalized, the APOSTİL comment to be taken on the original of the divorce decision (usually done on the back page of the court decision), the translation of the divorce decree, the interpretation of the apostille and the apostille interpretation into Turkish by the sworn translator.
It has been, to be certified by the consulate after translated into Turkish, passport and ID card copy of the notarized or consulate will give recognition to a lawyer for divorce proceedings in Turkey illustrated attorney. In the case where both spouses are possible to divorce foreigners in Turkey. If the spouse’s divorce settlements in Turkey in the Turkish court. For example, if the couple settled in Istanbul to live permanently, they may get divorced in Turkish courts.