Recognition and Enforcement of Divorce Decisions Issued by Foreign Courts in Turkey
Turks living in Germany are involved in procedures that will change their civil status, such as marriage and divorce.
In particular, Turkish citizens who live in Germany or have dual citizenship and whose marriages end in divorce in Germany must have their divorce decrees recognised in Turkey.
A divorce decision made in Germany has no legal effect under Turkish law. Once the decision is recognised and enforced in Turkey, the validity of the German court decision will also be reflected in Turkish law and will have the effect of changing the individuals' civil status records. Otherwise, individuals who have divorced in Germany (including Turkish citizens who have acquired German citizenship/blue/pink card holders) will encounter various problems if they wish to marry a Turkish citizen in the future.
For this reason, it would be in the best interest of individuals who have divorced in Germany to ensure that this decision is recognised and enforced in Turkey as soon as possible in order to avoid problems in the future.
What are Recognition and Enforcement?
Recognition refers to the validity of court decisions issued by foreign courts as conclusive evidence or final judgments in Turkey.
Enforcement refers to the validity of foreign court decisions that are ‘enforceable’ in Turkey.
For example, while a divorce decision issued in Germany must be recognised in Turkey, if the divorce decision includes enforceable provisions such as custody and alimony, it must be enforced in Turkey.
Requirements for the Recognition of a Divorce Decision Issued by a German Court in Turkey
The decision to be recognised must first have been issued by a foreign court.
In addition, the decision issued by the foreign court must relate to a civil case. Since a divorce decision is a decision issued by a civil court, this condition is met.
Furthermore, the decision must be final and must not be contrary to public order.
Requirements for the Enforcement of a Divorce Decision Issued by a German Court in Turkey
In order for foreign court decisions to be enforced in Turkey, certain prerequisites have been established in accordance with Article 50 of the International Private Law Act[1] (‘Act’).
These conditions are as follows: (i) the decision to be enforced must have been issued by a foreign court, (ii) the decision must relate to civil proceedings, (iii) the decision must be final, and (iv) it must not be contrary to public order.
Application for Enforcement
A lawsuit must be filed for the enforcement process.
The elements that must be included in the application for enforcement are specified in Article 52 of the Law as follows:
The names, surnames, and addresses of the party requesting enforcement, the opposing party, and, if any, their legal representatives and attorneys,
The state court that issued the ruling subject to enforcement, the name of the court, the date and number of the ruling, and a summary of the ruling,
If enforcement is requested for a part of the ruling, which part it is.
In addition, a document certifying that the court decision to be enforced is final must be attached to the petition.
Requirements for the Enforcement of a Divorce Decision
Article 54 of the International Private Law Act (“Act”) lists the requirements for the enforcement of a foreign court decision in Turkey. These are:
The existence of an international agreement based on the principle of reciprocity between the Republic of Turkey and the state where the decision was issued, or the actual existence of a situation for the enforcement of foreign court decisions. Turkey has included Germany within the scope of the principle of reciprocity.
Enforcement Decision
The Turkish court may decide to enforce a foreign court decision in whole or in part as a result of the case. Foreign court decisions that are decided to be enforced are enforced in the Republic of Turkey as if they had been issued by Turkish courts.
Enforced divorce decisions have the same effect as a divorce decision issued by a Turkish court and are recorded in the population registry. This result will also affect alimony and custody proceedings.
Problems That May Arise for Individuals When German Court Divorce Decisions Are Not Subject to Enforcement or Recognition in Turkey
Since individuals whose divorce has been decided by a German court are still listed as married in Turkish population records, in the event of death, spouses remain each other's heirs. These individuals can transfer their assets to their own names by obtaining an inheritance certificate.
Since they are still listed as married in Turkish population records, they cannot remarry if they wish to do so.
Since Turkish courts have jurisdiction over lawsuits related to immovable property acquired in Turkey during the marriage, claims regarding property division may be subject to the statute of limitations as a result of recognition and enforcement proceedings carried out a long time later. In addition, even in property acquisitions after divorce, the other spouse may claim rights to these properties in property division, despite being divorced.
Conclusion
Divorce decisions made in German courts have no effect under Turkish law unless they are recognised and enforced in Turkey. For this reason, the parties to the case should carry out these procedures to avoid problems in the future. Otherwise, they should take into account the loss of rights they may experience in the future, as they will still be considered married according to Turkish population records.
Av. Dr. Anıl Coşkun
info@anil-coskun.com
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[1] The Law No. 5718 on International Private Law and Procedural Law, dated 27 November 2007, published in the Official Gazette No. 26728 dated 4 December 2007 and entered into force.