The Form of Foreign Divorces
Burak Huysal, Begüm SüzenUnder Turkish law, divorce is only possible by way of court judgment. Under comparative law, non-judicial divorce is granted before notary publics, by way of administrative acts, or even by mutual consent of the parties. Considering the proliferation of acts of non-judicial divorce, it has become important to determine the legal nature of such acts. In Turkish law, questions concerning the authority and validity of divorce (i.e., whether a foreign, non-judicial divorce can be legally recognized, or whether a granting authority need be present) must be considered. This article, after characterizing the legal nature of non-judicial divorce, will respectively address these questions.
Yabancılık Unsuru Taşıyan Boşanmaların Şekli
Burak Huysal, Begüm SüzenTürk hukukunda boşanmanın sadece mahkeme kararıyla gerçekleşmesine karşılık, karşılaştırmalı hukukta, noter önünde, idari bir işlemle ya da sadece tarafların karşılıklı iradeleriyle gerçekleşen mahkeme dışı boşanma örneklerine rastlanmaktadır. Günümüzde mahkeme dışı boşanmaların yaygınlaşması, bu tür boşanmaların hukuki niteliğinin tespitini önemli kılmıştır. Boşanmanın hangi makam önünde gerçekleşeceği ya da boşanma için herhangi bir makamın katılımının gerekli olup olmadığı meselesinin boşanmanın şekline ilişkin bir konu olarak vasıflandırılması halinde, böyle bir boşanmanın Türkiye’de gerçekleşmesinin mümkün olup olmadığı ve yabancı ülkede mahkeme dışı gerçekleşen bir boşanmanın etkilerinin Türk hukukunda tanınıp tanınmayacağı soruları gündeme gelmektedir. Bu makalede, söz konusu sorular, mahkeme dışı boşanmaların hukuki niteliğinin vasıflandırılması sonrasında, sırasıyla ele alınacaktır.
Despite the fact that divorce can only be exercised before the courts, comparative law divorces can be exercised before a notary, by an administrative action, or by mutual consent of the parties. The expansion in the number of non-judicial divorces enhances the importance of their legal qualification.
Law scholars examine the issue of whether a non-judicial divorce is possible as either a formal or procedural matter. If the issue is determined to be procedural, with procedural issues exclusively subject to the law of the courts, then Turkish divorces would be subject to Turkish law and any divorce in Turkey could only be realized before the courts. On the other hand, if the issue is qualified as a formal issue, MÖHUK art. 7 would be applied, since art. 14 does not provide a special provision regarding the form of divorce. Consequently, the law applicable to the merit of the divorce (lex causae) would be applied as an alternative locus regit actio rule. Therefore, divorce can be effectuated in Turkey before the courts, but also by non-judicial action if the law applicable to the merit of the case stipulates such a method.
Divorce is very similar to marriage in this regard. Marriage is an action that begins a marital union, divorce is an action that terminates it. The question of how parties consent to reflect this joining or dissolution to the outer world is a matter of form. Form in legal actions is defined as a vehicle or a pattern used to reflect consent to the outer world. The discussion regarding consent to terminate a marriage should be affirmed before the courts, or notary, or administrative authority, and shall be qualified as an issue regarding the form of divorce. Additionally, lex causae and LRA will be applied alternatively to this issue, due to the provision of MÖHUK art. 7. However, the concern of “prevention of crippled marriages” on which the solo application of LRA relies, must be taken into consideration when discussing the form of the divorce. Even though de lege lata, it is not possible to come to this conclusion, de lege ferenda only LRA rule must be applied. Therefore, it is advisable to add a provision to MÖHUK art. 14 to enable the application of the law solely on location of divorce. If divorce is qualified as a formal issue, the question of whether to carry out and recognize a non-judicial divorce within Turkey, and a divorce executed outside its borders, will need to be addressed.
To answer the question of whether a non-judicial divorce can be contemplated in Turkey, the ratio legis of the norms of Turkish civil code, setting forth that the divorce is contemplated before the courts, must be taken into consideration. Nonetheless, it is concluded that a non-judicial divorce is possible in Turkey if, under MÖHUK art.7, the law applicable to the merit of the divorce allows it.
Turkish law scholars are evaluating the issue with regards to public policy. The rules of Turkish law requiring a tribunal award for a divorce serve to protect the family as part of social policy, and also maintain a structured system of civil marriage and divorce. Consequently, the mentioned rules are of the “direct application” under MÖHUK art. 6. Therefore, non-judicial divorces are not possible in Turkey regardless of the nationality of the parties, and even though the law may be applicable to the merits of the case.
Due to a lack of any regulations of MÖHUK regarding the recognition of foreign administrative acts and actions, foreign non-judicial divorces cannot be recognized under Turkish law. However, regardless any of recognition thereof, foreign nonjudicial divorces would have legal effects in Turkey.
A non-judicial divorce, which takes place in a foreign country in compliance with the forms of the applicable law where the divorce is contemplated, shall not differ from a marriage of similar terms with regards to legal effects. Such a marriage would not require any recognition to be accepted as valid under Turkish law, just as the same rule must be accepted for foreign non-judicial divorces. Nevertheless, as it would not be possible to make an administrative act in Turkey for such divorces in practice, it would be advisable to implement a provision in MÖHUK to enable the recognition of foreign non-judicial divorces.
