The family courts must encourage parties to decide on the subject matter of the dispute, without involving the court. If this is not possible, the court must determine the subject matter. If one of the parties calls for a private hearing on the matter, the court will have discretion to accept or reject the claim (Article 184(6), Civil Code).
Under the Code of Civil Procedure, the court at the place of the defendant's domicile will have jurisdiction. If the claimant has an independent residential property and the claimant has been living with his or her spouse for at least six months before filing for divorce, the case can be filed to the court where the husband or wife resides or where they have resided together (Article 168, Civil Code).
Property disputes arising out of matrimonial law cases can be filed with the courts in the place of domicile of one of the parties. If the parties have different domiciles and both file a matrimonial case, the court to which the case was filed first will have authority and any appeals must be made to this court. (Article 207, Civil Code).
Under Turkish Law, if the dispute does not involve a foreign element, domicile residence is important for determining the competent court.
If the dispute involves a foreign element, the place of habitual residence will determine the applicable law. The grounds and provisions for divorce and separation are governed by the common national law of the spouses, as stated in the International Private and Procedural Code. If the spouses have different nationalities, the law of their common habitual residence will apply. In the absence of such residence, Turkish law will apply.
The spouses can choose either the law of their habitual residence or the national law at the time of marriage to govern their matrimonial property. If no choice is made, the common national law of the spouses at the time of marriage will apply.
Procedure for Foreign Judgments
If the foreign court's judgment can be recognised and enforced, the Turkish courts will order a prejudicial question for the case pending in the foreign courts.
In order to make a judgment the court will consider the following factors:
- Whether one of the parties is Turkish.
- The legal action brought in the foreign country relating to the Turkish citizen's personal status.
- Whether the legal action and subject matter of the legal action is the same.
- The parties must file a recognition case with a competent court for foreign divorce decisions. The court decree must not openly be contrary to public order and the defendant spouse'
The competent court will decide according to the following conditions:
- The judgment must have been given on matters that do not fall within the exclusive jurisdiction of the Turkish courts.
- The right of defence of the defendant spouse must not have been seriously violated.
Pre And Post-Nuptial Agreements
Under the Civil Code, spouses can make nuptial agreements about the marital property, before, during and after the marriage.
The legal marital property system is the "participation on the acquired assets" which means the spouses will benefit equally from the assets acquired during the marriage. In case of a divorce the Court will need to determine the type of assets in the division of matrimonial property, whether they are personal or not. In this context, any personal belongings will not be included.
If the spouses do not want to be subject to the legal marital property regime, they can choose: shared separate property regime or communal property regime.
Jurisdiction for Divorce
Divorce must be based on a specific ground and the judgment of the court. The grounds for divorce are limited and are specified under Articles 161 to 166 of the Civil Code (Law No. 4721).
Adultery: It shall occur between persons of a different sex to be accepted. The right to file for a divorce on the basis of adultery remains until the spouse forgives her or his spouse, and lasts until six months starting from the finding out of the adultery and also the end of the five-year period following the adultery in any cases.
Attempt on life, misbehaviour or indignity: All kinds of torture, mental-physical cruelty, not satisfying a spouse's needs, forcing a sexual relationship are considered to be acts of serious misbehaviour.
Delinquency or living a dishonourable life: Robbery, fraud, falsification, smuggling, embezzlement, rape, etc. The Court will consider the lifestyle of the parties and its continuity when deciding whether or not the spouse is living a dishonourable life.
Desertion: The desertion of the spouse must be for the purpose of ending a common life together.
Mental illness: Must be determined and verified by a report of medical science.
Breakdown of marriage: This is the most common ground for divorce in Turkey. The conflict must be serious and spouses must not want to continue with a common life together.
Consensual divorce: The marriage must have lasted for at least one year. Spouses must file the divorce case together or if one spouse files, the other spouse must accept the divorce.
The marriages can be considered as non-existing if the founding elements of marriage do not exist. If one of the parties is already married, is unconscious during the ceremony, is mistaken about the identity of the other party or the qualifications that he/she has, is suffering from a mental illness, the parties are forbidden to marry each other due to being related, the marriage will be invalid.
The grounds for judicial separation are the same as for divorce. When a judicial separation is granted, the spouses' common life will discontinue and the spouses' can choose to live in separate places of domicile.
If one of the parties will suffer poverty as a result of the dissolution of the marriage and that party is less at fault than the other, that party will be entitled to claim maintenance. Temporary maintenance is also available during the divorce proceedings to cover costs related to the accommodation and maintenance of the spouse and childcare arrangements. It is common for maintenance to be awarded on marital breakdown in Turkey. The court can only make an award for maintenance on the request of one of the parties who must either be faultless or less at fault than the other party. If the spouse claiming maintenance is at more fault than the other spouse, the request for maintenance will be rejected even if the spouse will be in need after the divorce.
Under Turkish Law, there is not any standard template for the calculation of the child maintenance. Financial situations of parents, child's needs and age must be considered. The child maintenance is removed automatically when the child turns 18 years of age and unless otherwise agreed among the parents in case of divorce with the settlement, without requiring any judgment.
The judge will decide on the child's custody on the best interests of the child even if the parties do not request such a decision from the court during the divorce case. The custody rights of a parent begin with the birth of the child with any judgment needed and continue until the child is 18 years old. If the parties are not married, the custody of the child belongs to the mother. In case of divorce, the judge will entrust custody on one of the spouses as there is only sole custody in Turkish law.
Both parents have the right to request contact with the child but the request may be rejected if it causes the child distress.
Surrogacy and Adoption
Under Turkish law, the mother is the person who gives birth to the child. Surrogacy agreements are against Turkish legal rules and personal rights and are considered as a violation in Turkey, and cannot be executed.
The following conditions must apply in case of Adoption:
- The person wanting to adopt must have looked after the child for at least one year.
- A couple with other children must not let the adoption of a child negatively affect any other children they have.
- A couple wanting to adopt must have been married for at least five years and both must be at least 30 years of age.
- An unmarried person wanting to adopt must be at least 30 years of age.
- Unmarried and same-sex couples cannot adopt.
- There must be at least 18 years of age difference between the adopting person and the adopted child.
Civil Partnership/Same-Sex Marriage
Civil partnership and same-sex marriage are not allowed or recognised in Turkey. Under the Civil Code, the institution of civil partnership does not exist. Any provision of foreign law that is contrary to the public order of Turkey will not be applied to the case.
Civil Code: www.mevzuat.gov.tr/MevzuatMetin/1.5.4721.pdf
The official website for the updated version of the Civil Code. In the Turkish language.
Civil Code Procedure: www.mevzuat.gov.tr/MevzuatMetin/1.5.6100.pdf
The official website for the updated version of the Civil Procedure Code. In the Turkish language.
International Private and Procedural Law: www.mevzuat.gov.tr/MevzuatMetin/1.5.5718.pdf
The official website for the updated International Private and Procedural Law.
International Private and Procedural Law (English): www.ispramed.it/root/wp-content/uploads/2012/10/ippl_turkey.pdf
The unofficial website, with an English translation of the Code.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.