Procedures For Recognition And Enforcement Of Foreign Country Court Decisions And Divorce Decisions In Turkiye
In order for the divorce decisions concluded by the courts of a foreign country to be recognized by the Turkish authorities, certain judicial or administrative procedures must be carried out. If Turkish citizens have been divorced before a foreign court, the divorce decision will not automatically be valid in Turkey. This situation may cause legal grievances for them and their heirs in case of death. In order for a foreign court decision to be valid in Turkey, it is necessary to file a Recognition/Enforcement case.
Recognition; It means that the decision made by the foreign court has the effect of a valid divorce decision before the authorities in Turkey. Enforcement is; In the event that the foreign court has decided on the ancillaries of the divorce, such as custody, alimony and compensation, in addition to the divorce decision, it means that these decisions can be enforced in Turkey.
What Are the Conditions of Recognition or Enforcement Case?
1. There must be a divorce decree issued by the foreign court. (outside Turkey)
2. The decision of divorce must be final. In other words, according to the law of that country, there must be a final judgment upon the completion of all judicial stages such as appeals to regional court and finally appeals to superior court
3. There should be no clear contradiction to the Turkish public order in the divorce decision.
4. The decision in question must be a decision on civil actions given by a foreign court.
5. There Must Be Reciprocity (Reciprocity) Between the Country where the Decision is issued and Turkey: so there must be a bilateral obligation between the foreign country and Turkey regarding the recognition of divorce decisions, as per the principle of reciprocity arising from international law.
Which Documents Are Required for Recognition or Enforcement Case?
1. First of all, a signed and sealed copy of the decision should be obtained from the foreign court that issued the divorce decision.
The divorce decision given by the foreign court must be finalized according to the domestic law of the foreign country. Finalization according to our Turkish legal system; It is possible to exhaust the means of appeal and appeal against the court decision, to waive the application to the legal remedy or to delay the application period.
2. Secondly, an apostille annotation must be obtained from the Consulate. The purpose of the apostille annotation is the approval required for the consulate to determine that the competent authorities of the foreign country that made the decision are authorized to make the decision.
Authorities authorized to put an Apostille annotation in the Republic of Türkiye:
1. Administrative documents: Governorships, Governors, Deputy Governors and Legal Affairs Managers on behalf of the Governor, District Governorates;
2. Judicial Documents: Heads of Justice Commissions working in centers with Heavy Penal Courts.
As it can be seen, since the divorce decisions can be made by the COURTS, the Apostille annotation should be obtained from the Justice Commission Presidency in the centers where the High Criminal Court is established.
3. Persons who divorced abroad and want to have their divorce decision approved in Turkey should file a recognition and enforcement action. In order for this lawsuit to be filed, the foreign court decision must be apostilled.
What is an Apostille and Where to Get it in Turkiye?
4. Apostille is an annotation that ensures that the foreign divorce decision is valid in the international arena. Without this annotation, it is not possible to recognize the foreign court decision. Since recognition enforcement cases are usually filed with the help of a lawyer, it is important to benefit from the legal assistance of a lawyer who is sufficiently experienced in apostille. However, if people who open this case without a lawyer file a lawsuit without having the decision apostilled, this case will not be accepted.
5. Apostille annotation can be issued by a different institution in each country. Therefore, it is necessary to conduct separate research for each country. For example, after a decision is made in a divorce case filed in Turkiye, the apostille of this decision is made by the Turkish authorities and the decision is now valid in all states that are members of the Hague Convention.
6. Apostille approval is obtained for official documents issued within the borders of one signatory country, which must be submitted within the borders of another signatory state. It is an approval made by the competent authorities of the country where the document was issued, indicating from which competent authority this document was issued, and the apostille is made in the country where the document was issued. The Hague Word. art. 6.
7. There are some details that people who will receive an apostille annotation should consider in order to ensure that the document is not missing. In case of any deficiencies or errors in the content of the apostille annotation, the recognition and enforcement of the court decision will not be valid abroad. For this reason, care should be taken to include the matters that must be included in the apostille annotation.
8. Accordingly, the matters that should be included in the apostille annotation;
• The name of the country where the document was issued
• Name and surname of the person who signed the document
• The title of the person who signed the document
• By which foreign authority the seal was placed on the document
• Where the document was issued *Date the document was issued and certified
• Competent authority issuing the apostille annotation
• Apostille annotation number
• Stamp or seal of the authority issuing the apostille annotation
• It is in the form of the signature of the authorized person who issued the apostille annotation.
Recognition in Turkey of A Divorce Order Given By A Foreign Court
In order for the divorce decision made by a foreign state court to become valid, it is necessary to apply for the recognition procedure. However, with the new regulation introduced in 2018, if only the recognition process will be carried out, this process can be done from the Directorate of Population and Citizenship Affairs.
If, in addition to the divorce decision, decisions such as alimony, compensation, and custody are also ruled, it will not be sufficient to obtain a recognition decision for them. In order for this decision, to be enforced by the Turkish authorities, an enforcement action will also need to be filed. However, whether it is a recognition process or an enforcement action, apostille is mandatory for the execution of this provision. Finally, the documents required for the recognition and enforcement of divorce decisions are as follows:
• The original of the finalized decision given by the foreign state court (the decision must contain a statement, seal, etc. that it is finalized)
• Apostille annotation for court decision
• Apostille translation as we mentioned above,
• Approval from the notary public after the translation of the decision and the final annotation by the sworn translator.
The divorce decision of the foreign court must be translated into Turkish. Translation should be done through sworn translation offices.
What is the approval of Apostille?
Apostille is a document approval system that ensures the authenticity of a document and its legal use in another country. The rules of the Apostille were determined by the Hague Convention of 6 October 1961. Apostille rules are valid only between states that are members or parties to the Hague Conference.
This document is a local authority, ministry, etc. determined by the member or state party related to the approval system. an organization certifies that the document is authentic, making it legal for use in another member or party country under the rules set out in the Hague Convention of 6 October 1961.
Apostille certified document is accepted as a valid document in all member and party states of The Hague Conference.
"The Hague Convention on the Abolition of the Obligation of Certification of Foreign Official Documents dated October 5, 1961" was published in the Official Gazette dated 16.9.1984 and numbered 18517 and entered into force on 29.09.1985 for Turkiye. Article 1 of the aforementioned Convention stipulates that the Apostille Annotation shall be applied to "official documents issued in the territory of one of the Contracting States and to be used in the territory of another Contracting State". It is aimed that the citizens of the aforementioned contracting countries can directly use the documents issued in their own countries in other party countries, thereby reducing the burden and providing convenience and speed in the transactions.
Other conditions for Recognition and Enforcement Decision:
The Decision Must Have Been Respected the Defendant's Defense Rights
The fact that non-compliance with the rights of defense is considered as a reason for refusal in the law, recognition and enforcement action depends on the objection of the defendant.
Whether the defense rights are respected or not is determined by the law of the country where the main case is heard. The fact that the regulations regarding the right of defense in the law of the country where the case is heard are in the nature of eliminating, complicating or restricting the use of this right leads to the deficiency of this requirement.
Whether the defense rights are respected or not is determined by the law of the country where the main case is heard. The fact that the regulations regarding the right of defense in the law of the country where the case is heard are in the nature of eliminating, complicating or restricting the use of this right leads to the deficiency of this requirement.
Whether the defendant's defense rights are respected or not is determined by examining three issues. In accordance with the law of the place where the foreign court where the decision was made,
• Being summoned to the case
• Being represented in the case
• Defendant's defense rights are considered to be respected only if appropriate judgment is made in the defendant's absence.
How Long Does the Recognition Enforcement Case Take?
Do You Need to Attend in Person?
In recognition enforcement action, each spouse can apply on their own or through their attorney. The other spouse does not need to be present at the time of application. However, notification to the defendant spouse is mandatory as per the law. The cases durations are generally short and the duration of the case varies according to the notification stage. If the parties are represented by a lawyer, they are not obliged to attend the case in person. If the defendant spouse does not attend the hearing or does not have himself represented by a lawyer despite the notification, a decision can be made in his absence.
Recognition and Enforcement Procedure
Recognition and enforcement are regulated under the Law No. 5718 on International Private and Procedural Law. Recognition and enforcement essentially ensures that foreign court decisions are accepted by Turkish law and enforced in Turkey. In order for every decision given in foreign courts to be implemented in Turkey, the recognition and enforcement procedure must be completed. Recognition and enforcement decision can be given by courts as a rule. However, as we have mentioned above, if only divorce was ordered by the foreign court, as an exception, administrative authorities have been authorized for recognition and enforcement since 2017.
What Has the New Regulation Brought to Turkish Law?
Citizens who divorced abroad with the Decree No. 690; It has been made possible to introduce the divorce decision by administrative means without filing a recognition and enforcement action. This amendment is only for divorce, nullity and annulment of marriage. If the content of the divorce decision; custody, alimony, compensation, personal relationship with the child, etc. it is necessary to file a recognition and enforcement action in court.
Even if the decision for the recognition and enforcement of the divorce has been taken, the procedures to be done at this stage have not been completed. Since the divorce decision will cause a change in the marital status of the parties, it is necessary to make changes in the person's personal records. The divorce decision must be registered in the civil registration and population register by applying to the civil registry office. After the divorce, it is possible to apply to the civil registration and population register directorate or the consulate abroad to change the identity card. It is possible to change the identity card on the same day.