How Is the Divorce Process for Foreigners?
The divorce process for foreigners is a matter that needs to be examined separately based on the differences between cases where both spouses are Turkish or foreign nationals living abroad and cases where one of the spouses is a foreign national.
Divorce of Turkish Citizens Living Abroad in Turkey
Turkish citizens have the unquestionable right to file for divorce in Turkey, even if their residence is not in Turkey. According to Article 14/1 of the Law No. 5718 on Private International Law and Procedure (MÖHUK), which states: “The causes and consequences of divorce and separation are subject to the common national law of the spouses,” it is understood that if both spouses are Turkish, the divorce case to be filed will be subject to Turkish law.
Divorce of Foreign Nationals in Turkey
If both spouses are foreign nationals, they can file for divorce in Turkey provided that their residence is in Turkey. As stated in Article 14/1 of the International Private and Procedural Law (MÖHUK) cited above, the spouses are subject to the common law if it exists. However, if the spouses have different nationalities, the law of the common habitual residence applies; if there is no such residence, then Turkish law is applied (MÖHUK Article 14/2 clause 2).
Divorce of a Couple Where One Spouse is a Foreigner in Turkey
If one of the spouses is a foreigner, the other spouse’s Turkish citizenship grants both spouses the right to file for divorce in Turkey.
The Status of Acquired Rights and Permits of Foreigners After Divorce
A foreign spouse may acquire certain rights and permits partially or fully as a result of the marriage. The mentioned rights include citizenship rights, while the permits cover residence permits and work permits.
1) Right to Citizenship
The conditions for a foreign spouse to acquire Turkish citizenship are regulated by the Legislator in Article 16/1 of the Turkish Citizenship Law as follows:
“Marriage to a Turkish citizen does not directly grant Turkish citizenship. However, foreigners who have been married to a Turkish citizen for at least three years and whose marriage is ongoing may apply to acquire Turkish citizenship. Among the applicants;
a) Living together as a family,
b) Not engaging in any activity incompatible with the marriage union,
c) Not having any condition that would pose an obstacle in terms of national security and public order, are the required conditions.”
Accordingly, a person who has acquired Turkish citizenship through marriage does not automatically lose their citizenship after divorce. After the marriage ends, the person can have their citizenship revoked based on specific cancellation grounds mentioned in the Turkish Citizenship Law (TVK).
2) Residence Permit
The foreign spouse, just like the right to acquire Turkish citizenship through marriage, also has the right to obtain a family residence permit. This permit allows the foreign spouse to stay in Turkey for a long period and is a special residence permit granted only to foreigners married to a Turkish citizen or to family members married to a Turkish citizen. The spouse who obtains a family residence permit in Turkey through marriage (with a requirement of at least 3 years) may be granted a short-term residence permit upon divorce.
3)Work Permit
A work permit is normally granted provided that the residence and work duration requirements stipulated in the relevant legislation are met. However, obtaining a work permit through marriage constitutes an exception in this regard. Accordingly, foreigners who are married to a Turkish citizen and maintain their marital union in Turkey can obtain a work permit without being subject to any time limitation.
Property Division in Divorce Cases Involving Foreigners
The procedure for the division of property of foreigners after divorce is regulated in Article 14 under the title “Marital Property” in the International Private and Procedural Law (MÖHUK):
“Regarding marital property, spouses may explicitly choose either the law of the habitual residence or the national law at the time of marriage; if no such choice is made, the marital property will be governed by the common national law of the spouses at the time of marriage, and if that does not exist, by the common habitual residence law at the time of marriage, and if that also does not exist, Turkish law shall apply. In the liquidation of property, the law of the country where the immovable property is located shall apply. Spouses who acquire a new common law after marriage may be subject to this new law, without prejudice to the rights of third parties.”
Therefore, if Turkish law is applied in the division of property in cases involving foreigners, the property regime provisions in the Turkish Civil Code shall apply; if the law of a foreign country is applicable, then the property regime provisions of that relevant country will be applied.
Who Is Granted Custody After Divorce for Foreigners?
The issue of who will be granted custody depends on the judge’s decision, taking into account the best interests of the child. Whether the parent with custody has the right to take the child abroad after the divorce depends on the relevant court decision and legal regulations. In such cases, usually the consent of the other parent is required for the parent with custody to take the child abroad. Therefore, if the custodial parent wishes to live abroad with the mutual child, it should be understood that they cannot do so without the approval of the other parent. However, if the other parent does not give permission for the child to travel abroad or live there, the custodial parent can apply to the court to request authorization for this purpose.
The Procedure for Divorce Cases Involving Foreign Nationals
In divorce cases involving foreigners, the court with jurisdiction is the family courts, while the competent court varies depending on the person or persons filing the lawsuit.
● In divorce cases filed by Turkish citizens living abroad, the competent court is one of the local courts in Turkey if at least one of the spouses has a residence in Turkey. If no such residence exists, the competent court is the court of the plaintiff spouse’s last residence in Turkey. If neither spouse has any residence in Turkey, the competent courts are those in Ankara, Istanbul, or Izmir.
● In cases where one of the spouses is a foreign national, the competent court for the divorce case is the court of the residence of either the plaintiff or the defendant spouse. If neither party has a residence, the procedure is determined as explained above.
● Finally, if both spouses are foreigners, a divorce case filed in Turkey can be opened if at least one of the spouses has a residence in Turkey. Regarding this, the 2nd Civil Chamber of the Supreme Court (Yargıtay) in its decision dated 10.05.2011, file no. 2010/4537, decision no. 2011/8105, stated the following: “The parties to the case are foreigners. In cases involving foreign elements, the international jurisdiction of Turkish courts is determined by the jurisdictional rules of domestic law concerning territorial competence (Article 40 of Law No. 5718). According to domestic law, whichever court(s) has territorial jurisdiction over a case also has international jurisdiction. According to Article 168 of the Turkish Civil Code No. 4721, divorce or separation cases are filed either at the court of the residence of one of the spouses or at the court of the place where they last lived together for at least six months before the lawsuit. The plaintiff has the right to choose among these locations. Since the plaintiff claims that their residence is Istanbul, it must be determined whether Istanbul was indeed the plaintiff’s residence as of the date of the lawsuit.”
In this matter, the parties may need a lawyer who will file and pursue the relevant case, specifically a divorce lawyer in Antalya.
Frequently Asked Questions
1.Can Foreign Nationals Get Divorced in Turkey?
As explained in detail above, individuals have the right to file for divorce in Turkey even if they do not hold Turkish citizenship. According to the Code of Private International Law (MÖHUK), spouses are subject to the common law if it exists. However, if the spouses have different nationalities, the common habitual residence law applies; if this does not exist, then Turkish law is applied.
2.How to Get Divorced from a Turkish Spouse Living Abroad?
A divorce case can be filed against a Turkish spouse residing abroad based on Article 41 of the Code of Private International Law (MÖHUK), which states: “Cases concerning the personal status of Turkish citizens shall be heard by the competent court in Turkey if such cases are not filed or cannot be filed in foreign courts. If the person is not present there, the court of their place of residence shall have jurisdiction; if they do not reside in Turkey, the court of their last residence in Turkey shall have jurisdiction; if none of these exist, the case shall be heard by one of the courts in Ankara, Istanbul, or Izmir.”
3.Is a Divorce Decree Issued Abroad Valid in Turkey?
It should be noted that the validity of a divorce decree issued abroad depends on the recognition and enforcement decision to be made by Turkish courts. Therefore, for a divorce decree issued by a foreign court to be applied and made valid in Turkey, a recognition and enforcement lawsuit must be filed and enforced.
4.How to Claim Compensation from a Foreign National Spouse?
In divorce cases where Turkish law is applied, the less at-fault or faultless party may claim material compensation, while the party whose personal rights have been violated may claim moral compensation. If foreign law is applicable to the case, the decision is made accordingly; however, even if the relevant legal system does not provide for material or moral compensation, Turkish courts may still award compensation.
Some Supreme Court (Yargıtay) Decisions Regarding Divorce Proceedings Involving Foreign Nationals
- “The plaintiff woman’s claim for material and moral compensation relates to the claim for material and moral compensation dependent on the divorce filed after the divorce (Turkish Civil Code Article 174/1-2). It is understood that the parties were divorced by a foreign court decision finalized on 26.07.2012 by the Family Law Chamber of the … Civil Court of First Instance, and that this decision was recognized, with the recognition decision becoming final on 20.05.2013. The recognition procedure results in a foreign court judgment being accepted as “conclusive evidence or res judicata” (Article 58 of the Code of Private International Law No. 5718). No fault determination was made regarding the parties in the foreign court judgment related to the divorce. In this case, no fault can be attributed to the defendant spouse. For material and moral compensation to be awarded as a result of the divorce, the fault of the party liable for compensation must exist. Given these circumstances, the court’s ruling in favor of the plaintiff woman on material and moral compensation, made by determining fault without considering the foreign court judgment—which has the effect of res judicata by recognition—is procedurally and legally incorrect and requires reversal.” (Supreme Court 2nd Civil Chamber, Decision dated 30.11.2017, Case No. 2016/23864, Decision No. 2017/13657)
- “Article 153/3 of Law No. 6098, cited above, stipulates that the statute of limitations period for claims between spouses does not begin to run as long as the marriage continues. However, once the marriage is definitively terminated by a final judgment, if there are any claims, the statute of limitations begins to run. Although spouses may appear to be married under Turkish law until a foreign court’s decision is recognized by Turkish courts, the legal consequences related to the divorce arise from the moment the divorce decision—which is a ruling creating a new legal status—is recognized. Therefore, based on this provision, it is legally impossible to conclude that the statute of limitations for claims between spouses has not started merely because a recognition lawsuit has not been filed, even though the marriage has actually ended by a foreign court decision, and the spouses continue to appear married under Turkish law.” (Supreme Court General Assembly of Civil Chambers, Decision dated 29.11.2023, Case No. 2022/1205, Decision No. 2023/1188)
- “The parties are foreign nationals, and since the divorce decision has been finalized and recorded in the population registry, it is generally debated whether there is any practical legal benefit regarding the enforcement of the foreign court’s divorce decision in terms of property regimes. Enforcement of a property regime decision issued by Turkish courts according to Turkish law is undoubtedly possible. Therefore, the presence or absence of an enforcement decision does not seem to affect the outcome significantly. However, the situation is different in terms of inheritance law. Nevertheless, if the court insists that the enforcement of the foreign court decision must be sought, then the parties should be granted time and opportunity, the outcome of the enforcement case should be awaited, and since the parties are foreign nationals, their opinions should be consulted within the framework of the provisions of Law No. 5718, as explained above, regarding which country’s law applies to the property regime. Articles 1, 2, and 5 of Law No. 5718 should also be considered. Afterward, the property regime case should be evaluated and a decision made accordingly. Therefore, deciding that there is no need to rule on this matter due to the non-fulfillment of a prerequisite is contrary to procedural and substantive law.” (Supreme Court 8th Civil Chamber, Decision dated 28.11.2011, Case No. 2011/1321, Decision No. 2011/6353)
- In the specific case; it was determined that the husband filed for divorce against the wife at the Floridsdorf District Court of the Republic of Austria, and the judgment was finalized on December 13, 2011, following the appeal review by the Vienna Regional Court of Appeal, ordering the divorce of the parties. According to the mentioned court decisions, the wife was found to be without fault regarding the events causing the divorce, while the husband was found to be fully at fault due to his extramarital affair, which led him to expel his wife from the home and neglect his marital duties. The foreign court decision underlying the divorce was recognized by the Kırşehir Family Court with decision no. 2012/467 E. and 2013/162 K., which was finalized on March 29, 2013. The plaintiff subsequently filed the present case within the legal period on November 8, 2013, pursuant to Article 178 of the Turkish Civil Code (TMK), seeking material and moral compensation as well as alimony from the defendant according to Articles 174/1-2 and 175 of the TMK. In light of this, upon recognition of the foreign court decision, the fault related to the events causing the divorce should have been accepted as conclusive evidence, and a decision should have been rendered considering the fault determination in the divorce decision. However, the dismissal of the case requires reversal.” (Supreme Court General Assembly of Civil Chambers, Decision dated 18.02.2021, Case No. 2017/2669, Decision No. 2021/109)
- From the documents submitted to the file, it is understood that the plaintiff stayed in Turkey with a residence permit for foreigners valid for two years, from November 6, 2008, to November 6, 2010. According to Law No. 5490 on Population Services, foreigners who have obtained a residence permit in Turkey for at least six months for any purpose are registered by the General Directorate in the “Foreigners Registry” (Article 8/1), and their place of residence addresses are recorded in this registry. According to the “Address Registration System Regulation,” enacted on August 15, 2007, based on this law, it is mandatory to keep the residence and other address information of such foreigners electronically (Regulation Article 10/1). Therefore, the General Directorate of Population and Citizenship Affairs should be asked whether the plaintiff has a registration in the “Foreigners Registry” and whether there is information about the place of residence address in Turkey as of the date of the lawsuit. It should also be taken into account that the notifications in the address declaration forms of individuals are valid unless proven otherwise (Regulation Article 13/1). These, along with all the evidence presented by the parties, should be evaluated together, and a decision should be made accordingly.” (Supreme Court 2nd Civil Chamber, Decision dated 10.05.2011, Case No. 2010/4537, Decision No. 2011/8105)
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