The Recognition and Enforcement of Foreign Divorce Decisions in Turkey
RECOGNITION AND ENFORCEMENT IN DIVORCE DECISIONS
Recognition and enforcement cases due to divorce are frequently encountered in Turkish Law. The marriage union ends with the finalization of the divorce decision. Foreign divorce decisions, on the other hand, have legal consequences through the recognition process. It is very important that the divorce decision is recognized in Turkey. In order for one of the divorced parties to remarry in Turkey, the foreign divorce decision must be recognized. In the context of current Turkish Law, decisions of foreign courts are not automatically recognized. Whether the foreigner’s divorce decision fulfills the necessary conditions for the recognition process in Turkey is investigated by the court and a decision is made in this regard.
Pursuant to Article 50 of the MÖHUK numbered 5718, a divorce recognition and enforcement decision must be given by the competent Turkish court in order to execute the finalized judgments in foreign courts in Turkey. However, for the enforcement of these foreign decisions, these decisions must first be “recognised”.
Recognition is the acceptance of foreign court judgments by other countries. As a rule, a decision made in a foreign country does not have legal consequences unless it is recognized and enforced in Turkish Law. However, recognition is not enough for a decision to be enforced. These decisions also need to be enforced, and recognition and enforcement are different concepts.
RECOGNITION OF FOREIGN DIVORCE DECISIONS IN TURKEY
The plaintiff spouse, who filed a divorce suit, may include the request for recognition of the foreign divorce decision in the petition. The divorce decision given in a foreign country court is entered in the registry and the recognition process takes place.
THE CONDITIONS;
The recognition of the divorce decision given by the foreign court depends on whether the said decision has the prerequisites and essential conditions.
Prerequisites;
1. There must be a decision made by a foreign court.
The specified decision must be taken and finalized by the judicial body of the foreign state. The court making the decision must be an independent judicial body.
2. The relevant divorce decision must be finalized.
The specified decision must be taken and finalized by the judicial body of the foreign state. The court making the decision must be an independent judicial body.
The Essential Conditions;
1. According to the condition of reciprocity, there must be an agreement between the states based on reciprocity, a provision of law or a de facto practice.
You can find out whether the reciprocity condition is met between the country in question and Turkey by applying to the General Directorate of International Law and Foreign Relations of the Ministry of Justice.
2. Foreign court decisions that are contrary to the fundamental rights and freedoms in the Constitution, the basic principles accepted in international law, the right to a fair trial and defense, public morals and the social, political and economic order of the society cannot be recognized and enforced.
For example, if the defendant spouse is not given the right of defense in the divorce decision given by the foreign court, if there are acts against the defendant that will constitute a violation of the good faith, the recognition process is not carried out.
3. The defense rights of the defendant must not have been violated.
If the defendant is not given the right of defense in the case, the recognition and enforcement of this decision will not be in question. Being duly summoned and represented to the court is important for the right of defense. Otherwise, it may be subject to objection.
ENFORCEMENT OF FOREIGN DIVORCE DECISIONS IN TURKEY
If the divorce decision made by the foreign court only contains provisions regarding divorce, it will be sufficient to recognize and register this decision. However, if the provisions on alimony, custody, compensation, and property division are regulated in addition to the provisions regarding divorce, then the enforcement of these parts will be required. In order to execute the divorce decision given by the foreign court, you must obtain an enforcement decision from the Turkish courts. Unless an enforcement decision is obtained from the Turkish court, this judgment will not be automatically enforced.
In order for the enforcement decision to be made, the pre- and essential conditions that we have mentioned above regarding the recognition procedure must exist. If these conditions are fulfilled, the right gives the enforcement decision. If one of the conditions is missing, the request is rejected. We recommend that you seek legal advice in order to prevent possible loss of rights.
WHICH DECISIONS CAN BE SUBJECT TO ENFORCEMENT?
ALIMONY
There are various types of alimony in Turkish Law. Whether these types of alimony named as poverty, participation, precautionary and aid alimony can be enforced is discussed in the doctrine. As a rule, enforcement of alimony is not possible. The reason for this is that there will not be a finalized divorce decision at the time of the provisional alimony. Aid alimony is also not enforceable. Poverty alimony and child support related to children are alimony which can be enforced and can be subject to the enforcement of the divorce case.
CUSTODY
Although provisions regarding the joint children of spouses are rare in divorce decrees issued in foreign courts due to the effect of joint custody, this issue is also included in some writs. In this case, enforcement of the decision is possible. It should be noted that in cases where there is no provision regarding the custody of minor children, this issue is reported to the family court by the population and the custody provision is established ex officio.
COMPENSATION
It is possible to enforce the decisions of pecuniary and non-pecuniary damages related to divorce. The condition of jewelry is also evaluated in this institution.
GOOD SHARING
The decision of the court regarding the division of property of the parties is suitable for enforcement by Turkish courts.
WHERE IS THE ENFORCEMENT CASE OPENED?
As a rule, the competent and responsible court for the enforcement of divorce decisions given by foreign courts is the family court of the defendant spouse’s residence in Turkey.
ENFORCEMENT DECISION OF COURT
When the enforcement of a foreign decision is decided, these decisions are executed like decisions given by Turkish courts. Thus, this foreign court decision will have legal consequences and will have the same effect as the decision given by Turkish courts. In the enforcement decision, first of all, the compliance of the divorce decree given by the foreign court with the conditions is determined. Then, if the conditions are accepted, the execution of the verdict is decided. These decisions are then enforced through writ of execution. Enforcement proceedings can be initiated by applying to the enforcement office anywhere. The enforcement office takes the necessary actions and sends the enforcement order to the enforcement debtor. The debtor may object to this matter. Otherwise, the verdict is enforced by the bailiff. For example, if the party whose custody is not left to him does not deliver the child to the other spouse within 7 days, an executive order is sent and necessary steps are taken within 7 days.
OBJECTION TO THE ENFORCEMENT DECISION
As a rule, it is possible to object to the enforcement decision of the court that enforced the divorce decision. You can file your objection by applying to the Regional Court of Justice. Thus, your objection will be evaluated by the higher courts. The objection can be made on the absence of enforcement conditions or on the fulfillment of the decision. Since the judge will automatically investigate whether the conditions for enforcement exist, he does not give an enforcement decision even if there is no objection in the concrete case. In practice, objections are usually made because the right to defense is not respected.
FREQUENTLY ASKED QUESTIONS ABOUT RECOGNITION AND ENFORCEMENT IN TURKEY
Can a lawsuit be filed again if the enforcement request is denied?
Since the absence of enforcement conditions constitutes a final provision, re-enforcement cannot be requested. However, in case of a change in the conditions, it is accepted that a lawsuit can be filed again.
Is it necessary to be in Turkey for the lawsuit?
No, you can advance your legal process with the help of a lawyer without actually being in Turkey.
Are recognition and enforcement procedures done together?
Recognition and enforcement are separate from each other. Enforcement is not required for recognition, but recognition is essential for enforcement. Enforcement process covers recognition as a rule and they can be subject to separate lawsuits.
Which matters should be included in the petition for enforcement action?
Enforcement request is made by petition. The petition should include the information of the parties, the state court from which the enforcement decision was taken, the name of the court, the date and number of the decision and the summary of the judgment.
Which documents should be included in the petition for enforcement?
The approved original and translation of the foreign court decision, as well as a letter or document approved by the authorities of that country, showing that the said decision has become final, must be attached to the petition.
What is the scope of the enforcement request?
The request for enforcement is limited to the divorce decision given by the foreign court. It is not possible for the plaintiff to demand an issue that is not included in the decision.
For more detailed information about the divorce recognition enforcement case, you can contact us.
