Determining the Applicable Law in International Divorces under Turkish Law

In today’s world, globalization and the increasing prevalence of international marriages have led to a rise in international divorce cases. This phenomenon brings significant legal challenges for judicial systems, in addition to its social and economic impacts on the parties involved. The question of which law is to be applied in international divorces becomes particularly complex when multiple legal systems are involved. Turkish law, through the International Private and Civil Procedure Law (IPPL), seeks to provide solutions to these issues. However, certain deficiencies and disputes persist in legislation and practice. This article focuses on the rules, problems, and proposed solutions regarding the determination of applicable law in international divorces under Turkish law.

Basic Concepts and Legal Framework

The determination of the applicable law in international divorces is primarily governed by the IPPL. Article 14 of the IPPL specifies the applicable law in divorce and separation cases. According to this provision:

1. If the spouses share a common nationality, the law of that nationality applies.

2. If there is no common nationality, the law of the spouses’ habitual residence applies.

3. If neither a common nationality nor a shared habitual residence exists, Turkish law is applied.

These rules aim to balance the legal relationships and connections between the parties. Additionally, the roles of public policy and party autonomy in determining the applicable law are significant. The freedom of the parties to choose a specific law is recognized within certain limits. The public policy principle intervenes when a foreign law contradicts the fundamental principles of Turkish law, thereby ensuring the application of Turkish law.

Determination of the Law

The process of determining the applicable law in international divorces requires accurately identifying both jurisdictional rules and connecting factors. Jurisdictional rules determine which country’s courts have authority over the case, while connecting factors establish the applicable law. Under Turkish law, connecting factors are generally based on the spouses’ common nationality or habitual residence. However, complexities may arise in cases where the parties have different nationalities or reside in different countries.

Party autonomy plays a crucial role in determining the applicable law. While the parties’ choice of a specific law is generally accepted by the courts, it is valid only insofar as it does not contravene public policy. The boundaries of this autonomy remain a subject of debate in doctrine and case law.

Comparative Law

When compared with the practices of other legal systems, such as those in France, Germany, and the United States, Turkish law reveals both similarities and differences. In France, the law of the parties’ shared domicile is typically applied in divorces, while in Germany, the law of the parties’ nationality is prioritized. In the United States, the diversity of state laws leads to varying practices. Although the flexible connecting rules in Turkish law often provide advantages, there is a need for clearer regulations concerning public policy and party autonomy.

Challenges in Practice

The most common challenges in practice include discrepancies in courts’ interpretations of connecting rules, ambiguities regarding the extent to which party autonomy is respected, and the broad interpretation of the public policy principle. For instance, Turkish courts sometimes refrain from applying foreign law, deeming it contrary to Turkish public policy, and instead apply Turkish law. Such practices may lead to disputes that undermine the right to a fair trial.

Conclusion and Recommendations

While Turkish law provides a solid legal framework for determining the applicable law in international divorces, certain improvements are necessary in practice. Updating legislation to allow greater recognition of party autonomy, narrowing the scope of public policy interpretations by courts, and unifying judicial decisions in this field are essential. Furthermore, developing a comprehensive doctrinal foundation to guide courts can enhance transparency and consistency in practice. By addressing these issues, it will be possible to ensure justice for the parties and improve the predictability of the legal system.