There must be a judgment issued by a foreign court regarding a civil case.
This foreign court judgment must be final according to the law of the country where it was issued.
There must be no clear violation of public order.
There must be reciprocity with the country that issued the judgment seeking recognition and enforcement.
The right to appeal must not be exercised in violation of the principle of good faith.
NEW REGULATION FOR THOSE WHO ARE DIVORCED ABROAD
As a rule, the recognition and enforcement of a judgment issued by a foreign court regarding divorce cases is carried out by the competent court within the borders of the Republic of Turkey.
However, Article 27/A, added to Law No. 5490 on Population Services dated April 17, 2017, allows the foreign court judgment to be registered in the competent civil registry. The relevant law article lists certain requirements for this purpose:
CONDITIONS FOR PROCESSING A DIVORCE ABROAD BY APPLICATION TO THE CIVIL RESIDENCE
There must be a foreign country-issued decision regarding divorce, separation, nullity of marriage, or the establishment of a marriage.
This decision must be final according to the law of the country in which it was issued.
The parties must participate jointly or through their representatives. Joint application is required.
The relevant decision must not be contrary to Turkish public order.
As can be seen, before the aforementioned regulation was introduced, individuals seeking recognition and enforcement were required to apply to Turkish judicial bodies. However, under the current regulation, registration can be requested directly to the authorized civil registry office if the parties act together and the other conditions listed are met.
In line with the above explanations, although efforts have been made to make the recognition and enforcement of divorce, separation, nullity of marriage, and the establishment of a marriage practical, it also poses certain problems. Namely: It will not always be possible for civil registry offices, which carry out administrative procedures, to accurately assess whether the conditions required for recognition and enforcement have been met. For example, considering the different legal systems, determining whether a decision issued by a foreign court is final under that country’s law can take a long time for the civil registry office to determine, or it may be determined incorrectly. Even judicial authorities require the judgment of a judge and lawyer specialized in foreign law to evaluate a decision obtained from a foreign court.
While determining whether a violation of public order is a matter that can only be assessed by judicial authorities, the implementation of such a provision added to the legislation is likely to lead to undesirable consequences.
Authorized civil registry offices will be determined in the procedural and substantive regulation to be issued by the Ministry of Interior, as specified in Article 27/A/4 of Law No. 5490. This regulation has not yet been published.
WHAT SHOULD BE DONE IF THE REQUEST FOR RECORDING A DIVORCE ABROAD IN THE CIVIL REGISTRATION IS REJECTED?
If a request for registration of a divorce, separation, nullity of marriage, or marriage registration decree is denied due to failure to meet the conditions listed in the law, the parties may pursue legal action for the recognition and enforcement of the relevant decision pursuant to Law No. 5718 on Private International Law and Procedural Law.
A party whose request is rejected by the civil registry office may file a lawsuit for recognition or recognition-enforcement of the divorce abroad in the Turkish courts of the person against whom enforcement is sought, or in the courts of Istanbul, Izmir, or Ankara, if this is not the case, in the place of residence of the person against whom enforcement is sought. The family court will have jurisdiction in these cases.
WHO CAN APPLY TO RECORD A DIVORCE ABROAD IN THE CIVIL REGISTRATION?
Pursuant to the explicit language of the law, the parties’ participation is required to be jointly or through their representatives. However, the current regulation does not address who has the authority to file an application if the parties are not alive.
The Civil Registry Office’s procedures are administrative in nature. Because it is not possible for an authority conducting administrative affairs and procedures to determine legal interest, if one of the parties is not alive, divorce, separation, nullity of marriage, or marriage decrees issued abroad cannot be directly registered in the civil registry, as per Article 27/A of Law No. 5490. A recognition and enforcement action must be filed with the competent Family Court, as per the provisions of the National Protection and Social Security Law (MÖHUK).
WHAT SHOULD BE DONE IF THE REQUEST FOR RECORDING A DIVORCE ABROAD IN THE CIVIL REGISTRATION IS REJECTED?
If a request for registration of a divorce, separation, nullity of marriage, or marriage registration decree is denied due to failure to meet the conditions listed in the law, the parties may pursue legal action for the recognition and enforcement of the relevant decision pursuant to Law No. 5718 on Private International Law and Procedural Law.
A party whose request is rejected by the civil registry office may file a lawsuit for recognition or recognition-enforcement of the divorce abroad in the Turkish courts of the person against whom enforcement is sought, or in the courts of Istanbul, Izmir, or Ankara, if this is not the case, in the place of residence of the person against whom enforcement is sought. The family court will have jurisdiction in these cases.
WHO CAN APPLY TO RECORD A DIVORCE ABROAD IN THE CIVIL REGISTRATION?
Pursuant to the explicit language of the law, the parties must participate jointly or through their representatives. However, the current regulation does not address who has the authority to apply if the parties are not alive.
The procedures of the Civil Registry Office are administrative in nature. Since it is not possible for an authority conducting administrative affairs and procedures to determine legal interest, if one of the parties is not alive, divorce, separation, nullity of marriage, or marriage decrees issued abroad cannot be directly registered in the civil registry, as per Article 27/A of Law No. 5490. A recognition and enforcement action must be filed with the competent Family Court, as per the provisions of the National Protection and Security Council (MÖHUK).
WHAT DOCUMENTS ARE REQUIRED FOR THE RECORDING OF A DIVORCE ABROAD IN THE CIVIL REGISTRY?
A petition/printed form issued by the Ministry containing the request for registration of the relevant foreign court divorce decree in the civil registry.
The original and a certified copy of the foreign court divorce decree whose registration is requested.
A notarized or consulate-certified translation of the foreign court divorce decree whose registration is requested.
The original certified document proving that the foreign court decision whose registration is requested is final.
A certified translation of the certified document proving that it is final.
WHAT CAN BE DONE IF THE PARTIES ARE UNABLE TO APPLY TOGETHER TO PROCESS THE DIVORCE ABROAD?
If the parties or their lawyers cannot apply to the competent Civil Registry Office or consulate together, or if joint action is not possible, then, in accordance with the provisions of the Civil Procedure Code (MÖHUK), cases for recognition and enforcement of the divorce abroad must be filed.
Recognition and enforcement cases can be filed regardless of how long the judgment was rendered abroad, as they are not subject to a statute of limitations for legal benefit.
Recognition and enforcement cases will be heard under a simplified procedure.
Decrees of divorce, separation, nullity of marriage, and determination of marriage obtained abroad, based on a recognition and enforcement decision issued by the competent Family Court, will also be final and enforceable in Turkey.