Marriages contracted between citizens of different countries have become an ordinary phenomenon today. The ending of such marriages confronts the parties not only with the rules in force in Türkiye but also with the rules of private international law. Divorce from a foreign national spouse is a technical area requiring domestic law and international connecting rules to be assessed together.
The questions most often raised in practice cluster under the following headings: Which country’s law will apply to the action? Will a divorce judgment given in Türkiye take effect in a foreign country? By what rules are the custody of the children and the spouses’ assets regulated? Leaving these questions unanswered, or proceeding on mistaken assumptions, may result at the end of the process in a loss of rights that is difficult to remedy.
In this note we address the legal framework of divorce actions between a Turkish citizen and a foreign national spouse: the determination of the applicable law, the courts with territorial and subject-matter jurisdiction, the consequences the divorce produces, and the question of foreign court judgments acquiring validity in Türkiye.
The Law Applicable in Divorce Actions with a Foreign Element
Which law is to apply in disputes of this kind is regulated by a cascading system in the Act on Private International Law and Procedural Law No. 5718. Before turning to that system, it is necessary to determine whether the dispute before us truly carries a foreign element.
Determining the Foreign Element
The legislature has not defined the foreign element within the scope of the Act on Private International Law and Procedural Law No. 5718. Whether the element is present is therefore assessed by reference to the characteristics of each dispute and the circumstances in which it arises.
As regards divorce actions, a foreign element arises where one of the spouses is a Turkish citizen and the other a foreign national. Beyond this, the parties’ places of residence being in different countries, or the marriage having been contracted in another country, likewise render the action one with a foreign element.
The Cascading Connecting Rule
How the applicable national law is to be established is expressly regulated in Article 14 of the Act on Private International Law and Procedural Law No. 5718. Since, in the case of Turkish citizens who marry a foreign national, it is most often impossible to speak of a common national law, the legislature has adopted a tiered solution.
Under that provision, the order of precedence operates as follows:
- At the first tier, the spouses’ common citizenship is sought; if they are citizens of the same State, the law of that State applies.
- If their citizenships differ, the law of the common habitual residence comes into play. Habitual residence is explained in the literature as the place where a person actually lives and maintains his or her real life relationships.
- Where, like common citizenship, a common habitual residence is also absent, Turkish law applies to the dispute.
- As regards requests for interim measures raised in the course of the divorce, the outcome does not change; Turkish law applies to such requests in every case.
Where matters such as maintenance or custody arise during or after the divorce action, the law applied to the divorce applies to those matters as well.
How the Divorce Process Operates
The process of divorce from a foreign national spouse does not proceed in the same way in every file. The parties’ nationality, the country in which the marriage was contracted, the spouses’ residence situation and the applicable rules of law all differentiate the process. Matters such as establishing the court with jurisdiction, effecting service, and whether the judgment to be given will take effect abroad are the elements that make the process technically demanding.
Actions Brought Against a Foreign Spouse Resident in Türkiye
Under the connecting rule explained above, in cases where both spouses are resident in Türkiye, that is to say where their habitual residence is in Türkiye, Turkish law applies to the dispute.
As regards jurisdiction, the Turkish courts have jurisdiction in these actions. The court with territorial jurisdiction is, under Article 168 of the Turkish Civil Code No. 4721, the court of the place of residence of one of the spouses or the court of the place where they last lived together for six months before the action.
Actions Brought Against a Foreign Spouse Abroad
We have noted that Turkish law will apply to the action where the spouses have no common habitual residence. In practice, however, the real difficulty arises not in establishing the applicable law but at the point where the foreign spouse is abroad and his or her address is unknown.
In order to locate a spouse whose address is unknown, an address search is first conducted with the relevant official institutions. If an address can be established, service is directed to that address. Where no address information can be obtained through the official institutions, recourse is had to service by public notice under Article 28 of the Notification Act No. 7201.
Under the procedure of service by public notice, stages such as the preliminary examination hearing, the trial hearings and the judgment becoming final are announced by publishing notices in the relevant newspapers; service effected in this way is regarded as valid and the proceedings may be continued without interruption.
The method nevertheless carries a practical cost: service by public notice takes longer than ordinary service and also increases the burden of expenses. It is therefore appropriate for the claimant to expedite the process by establishing, so far as possible, the spouse’s address abroad.
The Legal Consequences of the Divorce
Divorce from a foreign national spouse produces consequences under the headings of custody, maintenance, damages and the division of property. In arrangements for custody and personal contact, the Turkish courts take the best interests of the child as their basis and give priority to the child’s welfare when assessing the parents’ requests. As regards maintenance, damages and the matrimonial property regime, the rules of international law may come into play. How the consequences take shape may vary according to the parties’ citizenship situation and the law of the country in which they live.
Custody and Personal Contact with the Child
Under Turkish law, in ordering the divorce the judge determines which parent is to be awarded custody by assessing together the situation of the spouses and the best interests of the child. The same decision also regulates the framework within which the parent not awarded custody is to maintain personal contact with the child.
In files with a foreign element, the law applicable as regards custody and personal contact is likewise determined by Article 14 of the Act on Private International Law and Procedural Law No. 5718. Accordingly, if the spouses have a common citizenship, these matters are subject to the law of the State concerned. If the mother and father hold different nationalities, the law of the country of their common habitual residence applies. Where a common habitual residence cannot be established either, Turkish law finds application.
Maintenance
Maintenance is one of the fundamental institutions of family law and denotes the regular monetary contribution made by one spouse so that, following the divorce, the financially weaker spouse or the child may continue to subsist.
Under Turkish law, maintenance is dealt with under three headings:
- Interim maintenance: maintenance of a temporary nature awarded while the proceedings are pending in order to secure the subsistence of the spouse and the children.
- Poverty alimony: awarded following the divorce in order to prevent hardship to the spouse in the weaker financial position.
- Child support: the maintenance paid by the spouse not awarded custody in order to contribute to the child’s care and education costs.
The amount of maintenance is assessed by the court on the basis of an assessment of the parties’ financial situation, standards of living and subsistence conditions taken together.
In files with a foreign element, the law applicable to maintenance is determined in accordance with the provisions of the Act on Private International Law and Procedural Law No. 5718. If the spouses are citizens of the same State, the common national law applies; if their nationalities differ, the law of the common habitual residence is taken as the basis. If a common habitual residence cannot be established either, Turkish law applies.
Claims for Damages
Divorce is not merely an emotional and factual separation; it is a legal process with many pecuniary and non-pecuniary consequences. The Turkish Civil Code No. 4721 affords the party who suffers loss in that process the possibility of claiming damages in order to make good that loss.
Pecuniary damages are claimed so that the party who has suffered economic loss during the marriage may preserve his or her previous standard of living and make good his or her financial losses. Non-pecuniary damages, by contrast, are founded on events harming personality rights, such as violence, insult, adultery or psychological pressure experienced during the marriage or in the course of the divorce.
These claims also find application in divorces involving a foreign spouse. Since claims for damages are ancillary to the divorce action, the rules of law applied to the divorce are valid here as well. If the spouses have a common citizenship, the action is heard according to the law of that State and damages are assessed within the framework of the same law. Where the nationalities differ, the law of the country of the common habitual residence applies. If a common habitual residence cannot be determined, Turkish law comes into play.
Division of Property
The division of property is a process that determines how the assets acquired by the spouses during the marriage are to be divided and that carries considerable weight in its consequences. Under Turkish law, the division rests on the basis of the regime of participation in acquired property. Under that regime, property acquired during the marriage is regarded as common and is divided equitably in the event of divorce; personal property, by contrast, is left out of the division.
In a divorce from a foreign national spouse, the manner in which the division is to be carried out may vary according to the applicable law. The court determines the applicable law within the framework of the Act on Private International Law and Procedural Law No. 5718. If it concludes that Turkish law is to apply, the provisions on the matrimonial property regime laid down in the Turkish Civil Code No. 4721 are taken as the basis; if the law of a foreign country is to apply, the assessment is made according to the matrimonial property rules of that country.
As regards jurisdiction, if the divorce action is being heard before the Turkish courts, the claim relating to the division of property may also be raised before the same court. Following the divorce judgment becoming final, it may be necessary to bring a separate action for the liquidation of the matrimonial property regime; that action is heard before the family court of the spouses’ place of residence.
The Status After Divorce of Rights Acquired Through Marriage
The status and permits obtained by the foreign spouse through the marriage may be reopened for assessment once the marriage comes to an end. Whether these rights continue varies according to Turkish law and the provisions of the relevant legislation.
Turkish Citizenship Acquired Through Marriage
The acquisition of Turkish citizenship by a foreign national through marriage is regulated in Article 16 of the Turkish Citizenship Act No. 5901. A person who acquires citizenship by fulfilling the conditions in that provision does not automatically lose that status by reason of the divorce. Even if the marriage comes to an end, citizenship may be withdrawn only on the basis of the specific grounds of annulment laid down in the Turkish Citizenship Act No. 5901.
Where, by contrast, the divorce takes place while the application process has not yet been completed, the right to acquire citizenship lapses automatically. The stage the foreign spouse has reached in the citizenship process may therefore be directly affected by the ending of the marriage.
The Residence Permit and Its Cancellation
The foreign spouse may not only acquire Turkish citizenship through marriage but also obtain a family residence permit. The family residence permit is a permit of a special nature granted to foreign nationals married to a Turkish citizen, or to a family member of a person married to a Turkish citizen. This permit affords the foreign spouse the possibility of long-term residence in Türkiye and is intended to protect the unity of the family.
As regards the fate of the permit, Article 36 of the Law on Foreigners and International Protection No. 6458 is decisive. Under that provision, a family residence permit may be cancelled where the conditions required under the first and third paragraphs of Article 35 are not met or subsequently cease to exist.
The Fate of the Work Permit
The ability of foreign nationals to work in Türkiye depends on compliance with the residence and employment periods laid down in the legislation. Persons meeting certain conditions may nevertheless be granted a work permit without any period requirement. Foreign nationals who are married to a Turkish citizen and who live with their spouse in a marital union in Türkiye are among these exceptions.
A work permit granted on the basis of the marriage may be cancelled following the divorce. If the foreign spouse holds another status, however, such as qualified labour, investor or holder of a long-term residence permit, the work permit may continue in existence. The outcome varies according to the legal framework relied upon and the other types of permit the person holds. A foreign spouse who wishes to continue working after the divorce must make an application for a work permit appropriate to his or her existing status and follow the necessary legal process.
Courts with Subject-Matter and Territorial Jurisdiction
The international jurisdiction of the Turkish courts is regulated in Article 40 of the Act on Private International Law and Procedural Law No. 5718:
Act on Private International Law and Procedural Law No. 5718 Art. 40 – International jurisdiction
“(1) The international jurisdiction of the Turkish courts is determined by the rules of domestic law on territorial jurisdiction.”
Because of this provision, regard is had to Article 168 of the Turkish Civil Code No. 4721 in determining jurisdiction in divorce actions. Under that article, the court of the place of residence of one of the spouses, or the court of the place where they last lived together for six months before the action, has jurisdiction. As is frequently seen in marriages contracted with a foreign national spouse, however, the parties mostly live abroad, which makes it impossible to establish a place of residence by those criteria.
Article 41 of the Act on Private International Law and Procedural Law No. 5718 has provided a solution to this problem. Under that provision, actions concerning the personal status of Turkish citizens are, where they are not or cannot be brought before the courts of a foreign country, heard in the following order:
- first, before the court having territorial jurisdiction in Türkiye,
- where there is no such court, before the court of the place where the person concerned resides,
- where the person concerned does not reside in Türkiye, before the court of his or her last place of residence in Türkiye,
- where there is none, before one of the courts of Ankara, Istanbul or Izmir.
As will be seen, in cases where there is no court with jurisdiction in Türkiye and no action has been brought in the foreign country either, the action may be brought before one of the courts of Ankara, Istanbul or Izmir. Since in marriages contracted with a foreign spouse the common life is mostly maintained abroad, it is a frequently encountered situation that there is no court of a place where one of the spouses resides in Türkiye or of a last place of residence.
The Effect in Türkiye of Divorce Judgments Given Abroad
Judgments given by foreign courts do not take effect in Türkiye automatically; their application depends on a decision of recognition or enforcement to be given by the Turkish courts. For a divorce judgment obtained from a foreign court to acquire validity in Türkiye and to be entered in the civil registry records, an action for recognition and enforcement must likewise be brought.
Independent Legal Assessment
In divorce files carrying a foreign element, the stage that determines the outcome is most often not the argument on the merits but the technical choices made at the beginning of the process. A failure to identify the applicable law and the court with jurisdiction correctly may cause proceedings lasting months to come to nothing for want of jurisdiction or on procedural grounds. In the same way, an action conducted without taking into account whether the judgment to be given will be recognised in the other country may leave the parties with different marital status records in two countries.
The strategy must therefore be constructed together with the question of the country in which the action is to be brought. In a concrete dispute, the headings we recommend addressing as a priority are as follows:
- Establishing by documents, having regard to the order of precedence in Art. 14 of the Act on Private International Law and Procedural Law No. 5718, whether there is a common citizenship and a habitual residence
- Investigating the foreign spouse’s address from the outset and anticipating the time and expense that service by public notice will entail
- Assessing claims as to custody, maintenance and the matrimonial property regime together with the law applicable to the divorce
- Examining, before the action is brought, the likelihood of the judgment being recognised in the foreign country
- Reviewing the stage reached in the foreign spouse’s residence and work permits and citizenship application
- Identifying, where there is no court with jurisdiction in Türkiye, the court corresponding to the order of precedence in Art. 41 of the Act on Private International Law and Procedural Law No. 5718
Independent Legal provides advice throughout the entire process in family law disputes carrying a foreign element, from the conduct of the divorce action to the recognition and enforcement of foreign judgments.