Recognition and Enforcement of Foreign Divorce Decrees in Turkey

2. Necessary Conditions for the Recognition of Foreign Divorce Decrees

a. The Foreign Court Decision Must Be Final

The most fundamental condition required for the recognition of a foreign divorce decree is that the decision has become final in the country where it was issued. Finality means that ordinary legal remedies can no longer be pursued against the decision. A divorce decree that has not acquired the quality of “res judicata” cannot be recognized.

The finality of a foreign divorce decree can be proven by various documents. These documents include a finality endorsement on the decision, a finality certificate obtained from the competent court, or official documents issued by the competent authorities of the country where the decision was made. The main purpose of requiring the finality condition is to prevent the recognition of decisions that have not yet become final and may change, thus avoiding legal uncertainty.

b. Not Being Contrary to Public Policy

Another important condition for the recognition of a foreign divorce decree is that it is not contrary to the country’s public policy. The concept of “public policy” refers to the fundamental values of a society, its moral norms, and the basic principles of its legal system.

For example, a foreign divorce decree that violates fundamental human rights, contradicts the principle of equality, or disregards the right to a fair trial may not be recognized due to being contrary to public policy. In this context, a divorce decree that occurs solely by the unilateral will of the husband, without the wife having any say, may not be recognized because it contradicts the principle of equality and fundamental rights.

However, when evaluating contradiction to public policy, cultural and legal differences between societies must be taken into consideration. Not every difference, but only situations that seriously harm fundamental rights and freedoms, justice, and moral values constitute a “contradiction to public policy“.

c. Observance of Defense Rights

For a foreign divorce decree to be recognized, the rights of defense of the parties must have been observed in the foreign court where the decision was made. The right of defense, which is one of the basic elements of the “right to a fair trial“, means that parties are notified of the case and have the opportunity to defend themselves.

When examining whether defense rights were observed in a foreign divorce decree, it is particularly checked whether the defendant was properly notified of the case. For example, if the petition was not served to a spouse living abroad, or if a decision was made without giving them a reasonable time, the defense rights are considered to have been violated, and such a decision cannot be recognized.

However, if the defendant voluntarily chooses not to attend hearings or waives their “right of defense“, then there can no longer be talk of a violation of defense rights. In such cases, the foreign divorce decree can be recognized if other conditions are also met.

d. Reciprocity Condition

In the recognition of foreign divorce decrees, there must be a reciprocity relationship between the country that issued the decision and the country where recognition is requested. The “reciprocity” principle means that two countries show similar approaches to recognizing each other’s court decisions.

Reciprocity in foreign divorce decrees can manifest in three different ways. Reciprocity can be established through international agreements signed between two countries. Additionally, actual reciprocity can occur if two countries regulate in their domestic laws that they will recognize each other’s decisions. In the case of “de facto reciprocity“, the established practices of the countries’ courts regarding the recognition of each other’s decisions are taken as a basis.

However, in modern legal systems, the condition of reciprocity is gradually losing importance. Especially in matters concerning a person’s civil status, such as divorce, there is a tendency to recognize foreign court decisions without requiring the condition of reciprocity.

3. Administrative Recognition Procedure for Foreign Divorce Decrees

a. Recognition Under Civil Registration Services Law Article 27/A

The requirement to apply only to courts for the recognition of foreign divorce decrees was changed with the regulation made in 2017. With Article 27/A added to the Civil Registration Services Law, administrative authorities were also given recognition authority.

For a foreign divorce decree to be recognized through this method, it is first necessary to apply to the competent civil registry office or consulates abroad. In this application, the documents required for “administrative recognition” must be submitted completely and certain conditions must be met. In particular, the decision must be properly certified by the competent authorities of the country where it was issued and a Turkish translation must be provided.

This new regulation aims to facilitate the recognition process of divorce decrees for citizens living abroad. The administrative recognition process offers a faster and more practical solution compared to the court process.

b. Conditions for Administrative Recognition

For a foreign divorce decree to be recognized administratively, certain special conditions must be met. First, the parties must make a joint application or, in special cases, the Turkish citizen party may apply alone.

Another important condition required for the administrative recognition of a foreign divorce decree is that it must have been obtained from the competent judicial or administrative authorities of the country where the decision was issued. Situations referred to as “private divorce“, such as the dissolution of a religious marriage, are not considered within this scope.

In an administrative recognition application, necessary documents such as those showing the finality of the decision, translations, and the identity information of the parties must be complete. Additionally, at the time of application, there should not be any ongoing case in Turkish courts on the same matter or a previously rejected recognition decision.

c. Consequences of Administrative Recognition

When a foreign divorce decree is recognized through administrative means, the decision is directly entered into the civil registry. This allows the parties’ marital status to be updated as divorced and gives them the opportunity to enter into a new marriage.

The most important feature of the administrative recognition process is that it only recognizes the main outcome of the divorce decree, that is, it registers the termination of the marriage union. Issues referred to as “ancillary (secondary) consequences” such as alimony, compensation, and custody remain outside the scope of administrative recognition.

Despite the administrative recognition of a foreign divorce decree, if the parties want the ancillary consequences to be valid in Turkey, they need to apply to the court separately for these matters. In this case, the court will consider and examine the relevant issues as a separate case.

4. Special Circumstances in the Recognition of Foreign Divorce Decrees

a. Recognition of Private Divorces

When a foreign divorce decree is based on special forms of divorce that exist in some societies, the recognition process shows different characteristics. For example, religious divorces or divorces that occur through unilateral declaration of intent valid in some countries require special evaluation.

These situations, described as “private divorces“, generally cannot be recognized through administrative recognition because they are not based on a court decision. For the recognition of such divorces, it is necessary to apply to the court and each concrete case must be evaluated within its own conditions.

b. Recognition for Blue Card Holders

There are special regulations for Blue Card holders in the recognition of foreign divorce decrees. A simplified recognition procedure is applied for “Blue Card” holders who have given up Turkish citizenship and become citizens of another country.

The divorce decrees of these people can be directly registered by civil registry offices, provided that they are properly certified by the competent authorities of their own countries.

c. Recognition According to International Conventions

International conventions signed between countries have special importance in the recognition of foreign divorce decrees. Multilateral agreements such as the “Hague Convention” or special agreements signed between two countries may contain provisions that facilitate the recognition process.

Between countries that are parties to these conventions, recognition of divorce decrees takes place through simpler procedures, and in some cases, automatic recognition may even be possible.

5. Consequences of Recognition of Foreign Divorce Decrees

a. Res Judicata Effect

With the recognition of a foreign divorce decree, the decision acquires the quality of res judicata in Turkey. This situation prevents a new case from being opened on the same matter. The “res judicata” effect is retroactive to the date when the decision was issued, and it is accepted that the marriage union between the parties ended on that date.

b. Registration in the Civil Registry

One of the most important consequences of the recognition decision is the registration of the divorce in the civil registry. With this registration process, the marital status of the parties officially changes.

“After the registration” process, individuals can enter into a new marriage and complete other official procedures related to divorce.

c. Ancillary (Secondary) Consequences

For secondary consequences such as alimony, compensation, and custody included in a foreign divorce decree to be applicable in Turkey, an enforcement decision is additionally required. “Enforcement” allows the foreign court decision to acquire an executive nature and produce results like Turkish court decisions. Unless an enforcement decision is obtained for secondary consequences, no executive action can be taken in Turkey based on the foreign court decision regarding these matters.

In the second part of our article, we will provide information about how foreign divorce decrees are enforced.

3. Basic Conditions in the Enforcement of Foreign Divorce Decrees

a. Principle of Reciprocity

One of the most important conditions in the enforcement of a foreign divorce decree is the principle of reciprocity. This principle can appear in three different ways: reciprocity based on agreement, statutory reciprocity, and de facto reciprocity. For example, if the enforcement of a divorce decree from Germany is in question, it is first checked whether there is an agreement between Turkey and Germany on this matter. The “reciprocity” condition aims to ensure justice and equality between countries.

b. Compliance with Public Policy

Another important condition sought in the enforcement of a foreign divorce decree is that the decision is not clearly contrary to Turkish public policy. The concept of public policy is related to the fundamental values of society and the indispensable principles of the legal system. For example, a divorce decision like “talaq” that makes divorce possible by the unilateral will of a man cannot be enforced because it is contrary to Turkish public policy. When evaluating “contradiction to public policy,” the consequences that the foreign decision will have in Turkish society are taken into consideration.

c. Protection of the Right of Defense

One of the important conditions in the enforcement of a foreign divorce decree is that the defendant’s right of defense has been protected. In this context, the party must have been properly notified of the divorce case heard in the foreign court and must have had the opportunity to defend themselves. For example, if a decision was made about a person without them ever being notified of the case heard in the foreign court and without having the opportunity to defend themselves, this decision cannot be enforced. The “right of defense” is considered a fundamental human right.

d. Finality of the Decision

For the enforcement of a foreign divorce decree, it is essential that this decision has become final in the country where it was issued. Finality means that ordinary legal remedies can no longer be pursued against the decision. For example, if the appeal period for a divorce decree issued in a foreign country has not expired and the appeal process is still open, this decision is not yet considered final. The “finality requirement” is important for ensuring legal certainty.

e. Issuance by a Competent Court

The final basic requirement for the enforcement of a foreign divorce decree is that the decision must have been issued by a competent court. In this regard, the foreign court must be competent according to the laws of its own country and must have issued a decision on a matter that does not fall under the exclusive jurisdiction of Turkish courts. Foreign court decisions cannot be enforced especially in matters falling within “exclusive jurisdiction.” Exclusive jurisdiction means that certain cases can only be heard in Turkish courts.

4. Special Circumstances in the Enforcement of Foreign Divorce Decrees

a. Decisions Regarding Child Custody

Child custody holds special importance in the enforcement of foreign divorce decrees. Decisions on this matter should be evaluated with primary consideration for the best interests of the child. A foreign court’s decision on custody can be enforced in the Turkish legal system, but this decision must be of a nature that protects the child’s fundamental rights and healthy development. For example, if a foreign court has granted custody to one parent, the other parent’s right to maintain personal relations with the child must also be considered. “Joint custody” decisions can now also be enforced in Turkish law.

b. Evaluation of Alimony Claims

Alimony claims are among the issues that require special attention in the enforcement of foreign divorce decrees. Ancillary claims such as child support and spousal support are subject to separate assessment. For example, if the amount of alimony determined by the foreign court is excessively high, exceeding the ability to pay, enforcement of this part may be rejected. When enforcing “alimony decisions,” international conventions to which Turkey is a party are also taken into consideration. Particularly regarding child support, international cooperation mechanisms may come into play.

c. Decisions on the Division of Marital Property

The division of marital property requires special sensitivity in the enforcement of foreign divorce decrees. These decisions are directly related to the economic rights and property rights of the spouses. Especially when it comes to immovable property located in Turkey, the enforcement of foreign court decisions is subject to certain limitations. For example, foreign court decisions involving the transfer of ownership of immovable property in Turkey cannot be enforced due to the exclusive jurisdiction of Turkish courts. The enforcement of decisions regarding “property regime” may only be possible in terms of obligatory transactions.

d. Evaluation of Compensation Claims

Material and moral compensation claims also hold an important place in the enforcement of foreign divorce decrees. These claims are ancillary consequences of divorce and are subject to separate assessment. The compensation amounts awarded by the foreign court can be enforced unless they clearly contradict Turkish public policy. For example, excessive compensation that is impossible to pay may be rejected on the grounds of contradiction to public policy. When enforcing “compensation decisions,” the purpose of the compensation and whether the amount is reasonable are also considered. Additionally, it is important that the criteria used in calculating the compensation comply with the fundamental principles of Turkish law.

7. Consequences of the Enforcement of Foreign Divorce Decrees

a. Res Judicata Effect

One of the most important consequences of the enforcement of a foreign divorce decree is that the decision gains res judicata effect in Turkey. This effect prevents a new case from being filed on the same issue and ensures legal security. The res judicata effect begins not from the date of the enforcement decision, but from the date when the foreign court decision became final in its own country. For example, if a divorce decree finalized in France in 2022 is enforced in Turkey in 2024, the res judicata effect is valid from 2022. With the “res judicata” effect, the marital status of the parties also changes definitively.

b. Enforcement Consequences and Applicability

The enforcement of a foreign divorce decree enables the decision to gain enforceability in Turkey. This is particularly important in implementing financial consequences such as alimony and compensation. The enforced decision can now be executed like a decision obtained from Turkish courts. For example, the amount of alimony determined by the foreign court can be collected through Turkish enforcement offices. Thanks to the “enforcement effect,” the practical consequences of the decision can also be implemented.

c. Registration Procedures in Civil Registry

The final stage of enforcing a foreign divorce decree is the registration of the decision in the civil registry. Upon finalization of the enforcement decision, an application is made to the relevant civil registry office to have the divorce recorded in the population records. This process enables the official change of the person’s marital status and allows them to enter into a new marriage. Before the “registration procedure” is completed, the person continues to appear as married in official records. Therefore, it is important to complete the registration procedures without delay following the enforcement decision.