The Turkish family courts are required to encourage parties to resolve disputes without involving the court.
**Divorce**
Under the Code of Civil Procedure, the court at the place of the defendant’s domicile will have jurisdiction. If the claimant has an independent residential property and has been living with his or her spouse for at least six months before filing for divorce, the case can be filed with the court where the husband or wife resides or where they have resided together.
**Property**
Property disputes arising from matrimonial law cases can be filed with the courts in the domicile of one of the parties. If the parties have different domiciles and both file a matrimonial case, the court to which the case was filed first will have authority, and any appeals must be made to this court.
Under Turkish Law, if the dispute does not involve a foreign element, domicile residence is important for determining the competent court. If the dispute involves a foreign element, the place of habitual residence will determine the applicable law. The grounds and provisions for divorce and separation are governed by the common national law of the spouses, as stated in the International Private and Procedural Code. If the spouses have different nationalities, the law of their common habitual residence will apply. In the absence of such residence, Turkish law will apply.
The spouses can choose either the law of their habitual residence or the national law at the time of marriage to govern their matrimonial property. If no choice is made, the common national law of the spouses at the time of marriage will apply.
**Procedure for Foreign Judgment**
If the foreign court’s judgment can be recognized and enforced, the Turkish courts will order a prejudicial question for the case pending in the foreign courts.
In order to make a judgment, the court will consider the following factors:
- Whether one of the parties is Turkish.
- The legal action brought in the foreign country relating to the Turkish citizen’s personal status.
- Whether the legal action and subject matter of the legal action are the same.
The parties must file a recognition case with a competent court for foreign divorce decisions. The court decree must not openly be contrary to public order and the defendant spouse’s rights.
The competent court will decide according to the following conditions:
- The judgment must have been given on matters that do not fall within the exclusive jurisdiction of the Turkish courts.
- The right of defense of the defendant spouse must not have been seriously violated.
**Pre- and Post-Nuptial Agreements**
Under the Civil Code, spouses can make nuptial agreements about the marital property before, during, and after the marriage.
The legal marital property system is known as "participation in acquired assets," meaning spouses will equally benefit from assets acquired during the marriage. In case of a divorce, the court will need to determine the type of assets in the division of matrimonial property, whether they are personal or not. In this context, any personal belongings will not be included.
If the spouses do not want to be subject to the legal marital property regime, they can choose either the shared separate property regime or communal property regime.
**Jurisdiction for Divorce**
Divorce must be based on specific grounds and the judgment of the court. The grounds for divorce are limited and specified under Articles 161 to 166 of the Civil Code (Law No. 4721).
**Special Reasons**
- Adultery: It is defined as occurring between individuals of different sexes to be considered grounds for divorce.
- Attempt on life, misbehavior, or indignity: All kinds of torture, mental-physical cruelty, failure to satisfy a spouse’s needs, or forcing a sexual relationship are considered acts of serious misbehavior.
- Desertion: Desertion of a spouse must be for the purpose of ending a common life together.
- Mental illness: Must be determined and verified by a report of medical authority/experts.
**General Reasons**
- Breakdown of marriage: Conflict must be serious, and spouses must not want to continue with a common life together.
- Consensual divorce: Marriage must have lasted for at least one year.
**Judicial Separation**
The grounds for judicial separation are the same as for divorce. When a judicial separation is granted, the spouses’ common life will discontinue, and they can choose to live in separate places of domicile.
**Finances/Maintenance**
If one of the parties suffer poverty due to the marriage's dissolution and that party is less at fault than the other, that party will be entitled to claim spousal support.
**Child Support**
Under Turkish Law, there is not any standard template for the calculation of child maintenance. Financial situations of parents, child’s needs, and age must be considered.
**Custody/Parental Responsibility**
The judge will decide on the child’s custody based on the best interests of the child. If the parties are not married, the custody of the child belongs to the mother. In case of divorce, the judge will entrust custody to one of the spouses as there is only sole custody in Turkish law.
Both parents have the right to request contact with the child, but the request may be rejected if it causes the child distress.
**Surrogacy and Adoption**
Under Turkish law, the mother is the person who gives birth to the child. Surrogacy agreements are against Turkish legal rules and personal rights and are considered violations in Turkey.
In case of Adoption:
- The person wanting to adopt must foster the child for at least one year.
- A couple wanting to adopt must have been married for at least five years and both must be at least 30 years old.
- An unmarried person wanting to adopt must be at least 30 years old.
- Unmarried individuals and same-sex couples cannot adopt.
- There must be at least an 18-year difference between the adopting person and the adopted child.
**Civil Partnership/Same-Sex Marriage**
Civil partnerships and same-sex marriages are not allowed or recognized in Turkey. Under the Civil Code, the institution of civil partnership does not exist. Any provision of foreign law that is contrary to the public order of Turkey will not be applied to the case.
For more information on YALÇIN & TOYGAR Law Office, please contact us at info@yttlaw.com.
Article written by Attorney Mert YALÇIN.