As the number of Turkish citizens living abroad has grown, it has become commonplace for marriages to be contracted in the country of residence and brought to an end there as well. A divorce judgment given by a foreign court does not, however, take effect automatically as far as Türkiye is concerned. Unless the judgment is recognised in due form, there is no divorce as a matter of Turkish law and the parties continue to appear as married in the civil registry records. Correcting that position depends on the completion of the recognition and enforcement formalities.
The questions most frequently encountered in practice cluster at this point: by what route does a foreign court judgment become valid in Türkiye, what is the difference between recognition and enforcement, is it necessary to bring fresh divorce proceedings in Türkiye, and how are custody, maintenance and the division of property affected by this process?
In this note we examine, from a practical standpoint, the route to be followed in order for a divorce judgment obtained abroad to take effect in Türkiye, the points at which the administrative application and the litigation route diverge, the documents required, and the consequences the judgment produces.
The Validity in Türkiye of Judgments Given Abroad
Whether a foreign court judgment will take effect in Türkiye is determined within the framework of the rules of private international law. The Turkish legal order does not accept a divorce judgment given by a foreign judicial authority as directly valid. For the judgment to become applicable in Türkiye, a particular legal procedure must be completed.
The Distinction Between Recognition and Enforcement
Recognition denotes the acceptance in Türkiye of a judgment given by a foreign court as res judicata. Through recognition, the judgment acquires validity as a matter of Turkish law; this is not, however, sufficient on its own for the judgment to be enforced.
Enforcement, by contrast, means that the judgment is adopted not only with the force of res judicata but also with enforceability. Once an enforcement decision is given, the foreign court’s judgment becomes capable of actual application in Türkiye.
The practical distinction between the two institutions may be summarised as follows:
- Where the aim is merely for the divorce to be regarded as valid as a matter of Turkish law, recourse to recognition is sufficient.
- Where the judgment also contains provisions requiring enforcement, such as maintenance, custody or damages, bringing an action for enforcement is unavoidable.
The framework for the recognition and enforcement of foreign court judgments in Türkiye is set out by the Act on Private International Law and Procedural Law No. 5718. That legislation makes the acquisition of validity by foreign judgments within the Turkish legal order subject to particular procedures.
To Which Authority and How Is the Application Made?
There are particular authorities to which a request for recognition is to be addressed. In order for a divorce judgment given abroad to be made valid in Türkiye, those concerned may apply to the civil registry offices or to Turkish consulates.
Recognition Application to the Civil Registry Office
Article 27/A, added to the Civil Registry Services Act, has made it possible for divorce judgments obtained abroad to be made valid in Türkiye without the need to bring an action for recognition. With this measure, published in the Official Gazette on 08.02.2018, the way was opened for a divorce judgment to be registered directly in the civil registry by the civil registry offices.
Recognition Application to Consulates
Under the amendment made to the Civil Registry Services Act on 29.04.2017, it is also possible for a divorce to acquire validity in Türkiye by submitting the divorce judgment to the foreign missions of the Republic of Türkiye.
In applications to foreign missions, however, just as at the civil registry offices, only the registration of the divorce judgment in the register is carried out. No steps are taken by this route as regards matters contained in the judgment such as custody or maintenance; separate proceedings must be brought before the competent Turkish courts in respect of those matters.
Who May Make a Recognition Application?
Joint Application by the Spouses
Until 25.03.2020, in order to benefit from the facility under Article 27/A of the Civil Registry Services Act, the spouses were required to make the application jointly. Where a joint application is made, the divorce judgment is entered directly in the civil registry in Türkiye; this route shortens the process, since it shows that both parties accept the validity of the judgment.
With the amendment made to Article 27/A on that date, it also became possible in certain circumstances for only one of the parties to make the application.
Application Made by One Party Alone
The amendment of 25.03.2020 introduced the possibility of an application by one party alone. Under the provision:
Civil Registry Services Act Art. 27/A
“where one of the parties has died or is a foreign national, the other party who is a Turkish citizen, or that party’s representative, alone” may make the application.
Accordingly, from 25.03.2020 onwards, where one of the spouses has died or is a foreign national, the other spouse who is a Turkish citizen may make the application alone.
Since the text of the article also expressly provides for an application through a representative, persons who have divorced abroad are no longer obliged to travel to Türkiye in order to have the judgment registered in the civil registry. By granting a power of attorney to a lawyer in Türkiye, a divorce judgment obtained abroad can be made valid in Türkiye.
Where the Former Spouse Is Not a Turkish Citizen
As noted above, the legislature has made separate provision for the spouse who is a Turkish citizen to make the application alone in cases where one of the spouses is a foreign national.
Documents Required for a Recognition Application
Article 7 of the Regulation on the Registration in the Civil Registry of Decisions Given by the Judicial or Administrative Authorities of Foreign Countries lists the documents to be submitted with the application. Accordingly:
- The application form
- The original of the duly certified decision whose registration in the family register is sought, together with a Turkish translation of that decision certified by a notary or by a foreign mission, or certified by the competent authority of the country in which the decision was given by way of an apostille
- Where the decision does not bear a certificate of finality, the original of the certified document or letter showing that it has become final under the legislation of the country in which the decision was given, together with a Turkish translation thereof certified by a notary or by a foreign mission, or certified by the competent authority of the country concerned by way of an apostille
- Photocopies of the parties’ identity documents or passports; where one of the parties is a foreign national, notarised Turkish translations of those documents
- Where the application is made through a representative, the original or a certified copy of the special power of attorney bearing a photograph and drawn up by a notary
In addition to the above, information concerning any case file previously opened and still pending before the Turkish courts in relation to the same foreign decision and, where applicable:
- The original or a photocopy of the court decision showing that the decision has previously become res judicata before the Turkish courts; or a document obtained from the judicial authorities to the effect that there are no pending proceedings before the Turkish courts and that the request for recognition has not previously been refused
Legal Consequences Arising in Türkiye After a Divorce Abroad
The effects of a foreign judgment in Türkiye are directly connected with the recognition and enforcement processes. Matters such as the custody of children, maintenance, pecuniary and non-pecuniary damages and the liquidation of the matrimonial property regime take effect only once the judgment has acquired validity in Türkiye. Conducting the process correctly is decisive if the parties are not to lose their rights.
Decisions Concerning the Custody of Children
The recognition in Türkiye of a divorce judgment given in a foreign country carries particular significance as regards custody. As regards enforceable provisions such as custody, child support and the establishment of personal contact, recognition is not sufficient on its own; unless an action for enforcement is brought, those provisions cannot be applied in Türkiye.
The Turkish courts act in accordance with the provisions of the Act on Private International Law and Procedural Law No. 5718 in the enforcement of foreign custody decisions and examine particular conditions when assessing the request. That examination is conducted in particular along the axis of a public policy review.
In custody decisions, where the best interests of the child are in issue, the courts also assess separately whether the ruling is compatible with Turkish public policy.
Indeed, since under Turkish law custody is as a rule awarded to only one of the parents, a ruling of “joint custody” given by a foreign court may be regarded as contrary to Turkish public policy and the request for enforcement may be refused on that ground. (Republic of Türkiye Court of Cassation 2nd CIVIL CHAMBER Merits:2004/13801 Decision:2004/15855 Date of Decision:27.12.2004)
Articles 9 and 10 of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, to which reference is made in that decision and to which Türkiye is also a party, set out the grounds for refusing recognition and enforcement. Those provisions emphasise that the request may be refused where the effects of the decision are manifestly incompatible with the fundamental principles governing the law of the family and of children in the requested State.
Decisions Concerning Maintenance
The enforcement in Türkiye of maintenance awarded by foreign courts depends on the judgment being recognised and enforced by the Turkish courts. Before the recognition and enforcement process has been completed, a maintenance creditor cannot claim maintenance in Türkiye on the basis of the foreign judgment alone.
Decisions Concerning Pecuniary and Non-Pecuniary Damages
The same rule applies to awards of damages. For pecuniary and non-pecuniary damages awarded by a foreign court to be made the subject of enforcement in Türkiye, the judgment must be recognised and enforced; without that process being set in motion, damages cannot be claimed on the basis of the foreign judgment alone. Where the foreign court has ruled on damages as well as on the divorce, recognition alone should not be relied upon and an action for enforcement should also be brought.
Where, by contrast, the foreign judgment contains no ruling on damages, actions for pecuniary and non-pecuniary damages may be brought in Türkiye following the recognition of the divorce judgment.
Liquidation of the Matrimonial Property Regime in Türkiye
The matrimonial property regime is the legal framework governing the administration of the spouses’ assets during the marriage, the disposition of those assets and their division. When the marriage comes to an end, the steps relating to the liquidation of the matrimonial property regime begin; that process operates by reference to the date on which the divorce action was brought.
It is important for persons divorced by a foreign court judgment to review their enforcement decisions and the dates on which they became final in order to protect their right to bring an action based on the matrimonial property regime:
- Statute of limitations: The period in these actions is 10 years and begins to run from the date on which the divorce judgment became final.
- The requirement of recognition and enforcement: Once the foreign court’s judgment has been given, an action for recognition and enforcement must be brought before the Turkish courts.
What Is an Action for Recognition and Enforcement?
Actions for recognition and enforcement are brought in order to enable divorce judgments obtained abroad to be applied in Türkiye. Through these actions the foreign judgment is brought within the Turkish legal system; in other words, the way is opened for the judgment to take effect in Türkiye as well.
Acceptance or Refusal of the Registration Application
Where the procedure described above is completed in full and the application is accepted, the divorce judgment given by the foreign court acquires validity as far as Türkiye is concerned. The parties are thereby regarded as officially divorced in Türkiye and the civil registry records are updated accordingly.
It is also possible for the application to be refused. The principal circumstances that may lead to a refusal are as follows:
Where, in relation to the same foreign judgment, proceedings have been brought in Türkiye and are pending, or have previously been dismissed, the request for registration will not be granted.
Judgments that are manifestly contrary to Turkish public policy may be refused, with reasons given.
The Course to Follow Where a Refusal Is Given
Registration applications that are accepted are, as a rule, entered in the civil registry within seven days by the foreign mission or provincial civil registry directorate concerned. Where the civil registry office refuses the application, each of the applying parties has the right to bring an action for recognition and enforcement.
Bringing the Action
Where the administrative application is refused, the parties may take the matter to court and bring an action for recognition and enforcement. The purpose of the action is to enable the divorce judgment given by the foreign court to acquire validity in Türkiye as well.
When the action is brought, official documents such as the original of the foreign court judgment, its sworn translation and a certified document showing that the judgment has become final must be submitted to the file. Preparing the application in full plays a decisive role in expediting the proceedings and in obtaining a favourable outcome.
Courts with Subject-Matter and Territorial Jurisdiction
An action for recognition and enforcement is brought in order for a divorce judgment given by a foreign court to become valid in Türkiye. Which court will hear the action is determined by reference to the parties’ residence situation and their address details in Türkiye.
Territorial jurisdiction: The action is brought in the place determined according to the following criteria:
- Where the respondent has a place of residence in Türkiye, the Family Court of that place has jurisdiction.
- Where the respondent has no place of residence in Türkiye, the court of the place where he or she last resided is regarded as having jurisdiction.
- Where the respondent has neither a place of residence nor a place of last residence in Türkiye, the action may be brought before one of the Family Courts of Istanbul, Ankara or Izmir.
Subject-matter jurisdiction: The judicial authority with subject-matter jurisdiction in these actions is the Family Courts. Where no family court has been established in the place concerned, the file is heard by the Civil Court of First Instance sitting as a family court.
The Obligation to Apply to the Courts as Regards Maintenance and Custody Provisions
As explained above, a divorce judgment given by a foreign court or administrative authority may be registered in the family register by the civil registry offices without the need to bring an action for recognition before a court. Where provisions requiring enforcement are concerned, however, such as maintenance and custody, an application to the Turkish courts is mandatory.
Independent Legal Assessment
The most frequently encountered error in practice is the misapprehension that administrative registration covers every consequence. The step taken through the civil registry office or the consulate ensures that the marital status is reflected in the records; it does not render the parts of the judgment relating to custody, maintenance or damages enforceable in Türkiye. A failure to appreciate this distinction at the outset can lead the parties to discover, years later at the enforcement stage, that they have no basis on which to proceed.
The second critical heading is timing. Since claims relating to the liquidation of the matrimonial property regime are subject to a period running from the date on which the judgment became final, delay in the recognition step gives rise directly to a risk of losing rights. The process should therefore preferably be planned as soon as the divorce judgment becomes final.
In a concrete file, the following matters in particular should be addressed as a priority:
- Determining, by examining the operative part of the judgment, whether recognition alone will suffice
- Completing in full, before the application, the certificate of finality together with the apostille and translation certifications
- Investigating whether there are proceedings pending or previously dismissed in Türkiye in relation to the same judgment
- Assessing in advance the enforcement risk as regards provisions capable of giving rise to a public policy debate, such as joint custody
- Documenting the starting date of the ten-year period in claims relating to the matrimonial property regime
- Drawing up the power of attorney in due form and bearing a photograph where travel to Türkiye is not possible
Independent Legal provides advisory services throughout the entire process, from the preparation of recognition and enforcement applications to the conduct of the proceedings, in family law disputes with a foreign element.