1-DIVORCE CASES AND THE NOTION OF FOREIGNNESS
In Turkish legal system, divorce and separation issues and cases are regulated in the Turkish Civil Code; in order to provide convenience for the divorced spouses, our legal system has determined the courts of the place of residence of one of the spouses or of the place where they have lived together for the last six months before the case as the competent courts and the court of jurisdiction has been determined as the Family Court. The main point here is that possible consecution may happen when the notion of “foreignness” is included in the divorce cases, which are regulated in the Turkish legal system.
With divorce and separation in the international order, the liberal order is forming more and more every day. As a result of this increment, the notion of foreignness has come into prominence in the national order and the number of foreigners who live and demand to divorce in Turkey is also increasing visibly.
Naturally, this situation has brought some legal problems and questions such as ‘in which legal order the divorce cases of these people with foreign status will be held’ , ‘where these cases will be filed’ , ‘the assessment of foreign status’, ‘the equivalent of the cases in Turkish legal order’ and etc.
2-THE PROBLEM OF WHICH COUNTRY’S LAW APPLICABLE
As a rule in divorce and separation cases with the notion of foreignness Common National Law is applied in the first step. if there is no Common National Law, Common Habitual Residence will be applied as the second step. In the absence of these two cases, Turkish Law is applied. The critical point with this application is to determine habitual residence.
The habitual residence has a ‘de facto’ concept, the habitual residence answers the place where the person in question continues her/his life. according to this concept, it is probable to determine the habitual residence of a foreign person who continues to study in Turkey for a while. On the other hand, it is not possible to identify a tourist’s habitual residence who comes for a while.
3-WHAT IS THE VENUE? WHAT DOES IT DETERMINE?
As a rule under the Turkish Law; in order to be heard a dispute which contains a foreign element, it is necessary for the dispute to have a connection with Turkey, otherwise the court does not have international jurisdiction. In this regard; under the provisions of Private International Law Code, the
domestic rules setting forth the competence determine
the competence of the Turkish courts for an international dispute. The concept of “venue” should be understood regarding the competent court.
The venue is a rule which is used to determine the place where the competent courts sit and when the general competent court is mentioned, according to the provisions of Code of Civil Procedure, it is determined that the place of defendant’s residence on the filing date of the case is the Competent Court unless otherwise stated On the other hand, special jurisdiction rules refers to the courts which are authorized by law in some cases.
4-WHERE IS THE COMPETENT COURT? WHICH COURT HEARS THE CASE?
The conditions for the implementation of the relevant legal provision regarding the determination of the competent court are as follows:
1.One of the parties has to be a Turkish citizen,
2.The case has to be “regarding the personal situations”, in other words, it has to be a case which presents a personal status
3.To date of bringing a lawsuit, the case have not been filed in a court sitting in another country.
If the conditions are met, the divorce case proceeds in rows pertaining to the jurisdiction rule by the operation of law. According to this processing; first of all, the cognizance takes place at a Turkish court which is competent by the location, in the absence of this situation trial is heard at the court where the relevant person resides, if the relevant person does not have a resides, the relevant’s recent settlement court becomes the competent court, finally, if none of these exists the case is heard in one of the courts of İstanbul, Ankara or İzmir.
As explained in divorce cases with the foreigners, there is a much more different process than the classical Turkish legal system moreover the relevant authorities have to be determined and the case should be sued in a certain direction. In light of these reasons, it becomes a necessity to get professional legal help or consultancy.
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Av.Harun Ümit Eren & Stj.Elif Pınar Tolga /İzmir