Family law in Turkey: overview

A Q&A guide to family law in Turkey.

The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.

To compare answers across multiple jurisdictions visit the Family Country Q&A tool.

This Q&A is part of the global guide to Family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Penningtons Manches LLP.

Family Law was published in association with the International Academy of Matrimonial Lawyers.

For a full list of jurisdictional Q&As visit www.practicallaw.com/family-guide.

Contents

Jurisdiction and conflict of law

Regulatory framework

1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute?

Sources of law

Turkey has a civil law legal system that is mainly made up of written laws in the form of:

  • The Constitution of Turkey (Constitution).

  • Various statutes and international agreements.

  • Law amending ordinances, regulations, and bye-laws.

The laws have a hierarchical structure, and the Constitution is at the top of the hierarchy.

Constitution

The Turkish legal system is based on the Constitution and statutory law. It is a civil law system and as a result case law is not a major source of law.

The Constitution provides for several protections to the institution of family that are implemented through several statutory laws. The family is defined as the foundation of Turkish society, and the state must take necessary precautions to maintain the tranquillity and wealth of families in Turkey (Article 41, Constitution). Article 10 of the Constitution addresses the principle of equality between men and women. Article 20 of the Constitution provides for the right to respect family life and that nobody can act in a way that is against the privacy of family life. Therefore, the privacy of family life is directly guaranteed by the Constitution under the Turkish legal system. The protections are implemented by the provisions of the Turkish Civil Code (Law No. 4721), which is the primary source of law in relation to marriage, marital breakdown and the welfare of children.

Court system

The Code of Civil Procedure (No. 6100) determines which court has jurisdiction to hear family law proceedings. However, because family law requires various levels of specialism, separate courts were established by the Code of the Foundation, Competence and Procedures of Family Court (No.4872). Under the Code, the family courts must incite parties to decide on the subject matter of the dispute, without involving the court. If this is not possible, the court must determine the subject matter of the dispute. If one of the parties calls for a private hearing on the matter, the court will have discretion about whether to accept the claim or not (Article 184/6, Turkish Civil Code). In making the decision, the court will consider both the parties and the benefit for any children.

Jurisdiction

 
2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings?

Divorce

The Code of Civil Procedure determines jurisdiction in divorce proceedings. Under the Code of Civil Procedure, the court at the place of the defendant's domicile will have jurisdiction. However, if the claimant (either the husband or wife) has an independent residential property and the claimant has been living with his or her spouse for at least six months before filing for divorce, the case can be filed to the court where the husband or wife resides or where they have resided together (Article 168, Turkish Civil Code). Therefore, as both situations are acceptable, the claimant can decide whether the case is filed according to the provisions of the Code of Civil Procedure or the Turkish Civil Code.

Property

Property disputes arising out of matrimonial law cases can be filed with the courts in the place of 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. However, under Article 207 of the Turkish Civil Code, the division of matrimonial property can be judged by the court of either of the parties.

Children

The Turkish Civil Code contains many provisions relating to children. For example:

  • Cases relating to paternity must be filed with the courts where one of the parties had domicile during the course of the case or where they had domicile at the time of the birth (Article 283, Turkish Civil Code).

  • Cases related to developing a relationship with the child must be tried in a court where the child is domiciled (Article 326, Turkish Civil Code).

Courts in the place of the defendant's domicile can hear cases about the guardianship of the child.

Domicile and habitual residence

 
3. How do the concepts of domicile and habitual residence apply in relation to divorce, financial arrangements, and children?

Disputes involving a foreign element

Under Turkish Law, if the dispute involves a foreign element, the habitual residence test will determine the applicable law. The grounds and provisions for divorce and separation are governed by the common national law of the spouses, as provided in the Turkish International Private and Procedural Code. If the spouses have different nationalities, the law of the place of their common habitual residence will apply. In cases where there is an absence of such residence, Turkish law will apply. The same provisions also apply to claims for spousal maintenance, separation and nullity of marriage.

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. In the absence of common law, the law of their habitual residence at the time of marriage will apply (or in the absence of such law, Turkish law will apply).

In addition, any litigation concerning the personal status of foreigners such as guardianship, tutelage, missing persons and the declaration of death concerning foreign persons that do not have domicile in Turkey will be determined by the court where the person concerned has a place of habitual residence, or if he is not resident, by the court where his assets are located.

Disputes not involving a foreign element

If the dispute does not involve a foreign element, domicile residence is important for determining the competent court. However, under the Turkish Civil Code, if the claimant (either the husband or wife) has an independent residential property and has been living with his/her spouse for at least six months before filing for divorce, the case can be filed to the court where the husband or wife resides or where they have resided together. This means that habitual residence can also apply and not just domicile residence.

The same rules apply for financial arrangements as these are seen as secondary provisions of the divorce decision.

Habitual residence is applicable when determining monthly child maintenance payments.

Conflict of law

4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction? What factors do local courts take into account when determining forum issues?

Procedure

A foreign judgment without recognition and enforcement in Turkey cannot be subject to a judgment by the Turkish courts. However in the 15th Civil Chamber's decision of 21 June 2012, 2011/2901 E. and 2012/4661 K., the Court of Cassation ruled in a decision from the Romanian courts regarding a case pending in the Turkish courts as it was found to constitute a "prejudicial question" under Turkish law (although there are many other examples where the Supreme Court refused to order a prejudicial question). However, if the foreign court's judgment can be recognised and enforced, the Turkish Courts will order a prejudicial question for the case pending in the foreign courts.

Foreign pendency is one of the obstacles for Turkish Courts to rule on a foreign element case. Foreign pendency is the result of a case pending in the Turkish Courts and a foreign court where the parties and subject matter of the case are the same. A plea of pendency is a method of preventing a judgement from the court that the parties prefer.

Factors

In order to determine forum issues 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 is the same.

 

Pre- and post-nuptial agreements

Validity of pre- and post-nuptial agreements

5. To what extent are pre- and post-nuptial agreements binding?

There are two different systems that govern the marital property regime under Turkish law. The arrangement can be based on the legal marital property system or a separate nuptial agreement.

The legal matrimonial property regime is the "participation on the acquired assets" which means that the spouses will benefit equally from the assets acquired during the marriage. The rules of participation on the acquired assets will apply in the absence of a separate agreement about the marital property.

If the spouses do not want to be subject to the legal marital property regime, they can choose a separate property regime, shared separate property regime or communal property regime.

Under the Turkish Civil Code, spouses are able to make nuptial agreements about the marital property, before, during and after the marriage.

There are two different forms of pre-nuptial agreement (Article 205, Turkish Civil Code). Firstly, the pre-nuptial agreement can be completed at a notary public. Secondly, the spouses can declare to the marriage officer the regime that they want to use when they apply for the marriage.

If the spouses decide to choose a marital property regime during the marriage application, they must inform the registrar of marriage in writing. If the spouses choose a separate property regime with a pre-nuptial agreement under Article 242 of the Turkish Civil Code, each spouse can protect his usufruct, management and disposition rights on his own property (within legal limits). In this type of regime, each spouse will be liable for their own debts in relation to their own property and on divorce, the spouses will not have any rights to a claim in each other's property. The institution of marriage is directly related with public policy and the judge has absolute authority regarding any conditions provided in a pre-nuptial agreement.

 

Divorce, nullity and judicial separation

Recognition of foreign marriages/divorces

6. Are foreign marriages/divorces/civil partnerships recognised?

Marriages

Foreign marriages are recognised in Turkey.

Under the Turkish International Private and Procedural Law, the legal capacity to marry must be governed by the respective national laws of the parties at the time of the marriage. The formal requirements and conditions of the jurisdiction where the parties married must be applicable.

The marriage will not be considered to be invalid in Turkish law if it occurred abroad and is not registered with the Turkish Authorities.

Divorces/annulment

There is an obligation for parties to file a recognition case with a competent court for foreign divorce decisions. The court must analyse whether the foreign decision meets the conditions of recognition or not. Under Article 58 of the Turkish International Private and Procedural Law, a foreign court decree can serve as definitive evidence or a final judgment, provided that the court decides that the foreign court decree fullfills the conditions of enforcement. The competent court will decide on enforcement subject to the following conditions (Article 54, Turkish International Private and Procedural Law):

  • The judgment must have been given on matters that do not fall within the exclusive jurisdiction of the Turkish courts. Or if the judgement is likely to be contested by the defendant, the judgment must not have been given by a state court which has considered itself to be competent.

  • The court decree must not openly be contrary to public order.

  • The right of defence of the defendant spouse must not have been seriously violated.

If the right of defence of one of the spouses is seriously violated or the law that is applied to the divorce case is explicitly contrary to Turkish public order, the foreign divorce decree will not be recognised.

Civil partnerships

Under the Turkish Civil Code, the institution of civil partnership does not exist. Article 5 of the International Private and Procedure Law provides that any provision of foreign law that is contrary to the public order of Turkey will not be applied to the case. In such cases, where it is considered necessary, the Turkish law will be applicable. Under Turkish Civil Law, marriage has close links with public order and the form of the marriage is strictly regulated, as a result civil partnerships are not recognised or regulated in Turkey.

Divorce

 
7. What are the grounds for divorce?

Divorce

Divorce must be based on a specific ground and the judgment of the court. The grounds for divorce are limited and are specified under Articles 161 to 166 of the Turkish Civil Code (Law no. 4721). If one of the grounds can be established, this is sufficient to file for divorce.

However, it is important to distinguish between general and special grounds of divorce. General grounds for divorce include the breakdown of marriage, divorce based on separation and consensual divorce. Special grounds for divorce are based on concrete facts (mental illness, adultery, cruelty, desertion (longer than 6 months), criminal conviction, and addiction).

Special grounds for divorce

Adultery. To establish a ground for divorce based on adultery, there must be a valid marriage between the parties of the divorce. It is not an obstacle if the parties live separately, as the marriage remains between the parties. Another condition is that one of the spouses must have a sexual relationship with another person. Adultery will only be accepted if the sexual relationship was between persons of a different sex.

The right to file for a divorce on the basis of adultery remains until the spouse forgives her/his spouse, and lasts until the end of the five-year period following the adultery.

If the ground for adultery is established, the court will definitely deliver a judgment of divorce and there is no need to investigate whether their common life became intolerable.

Attempt on life, misbehaviour or indignity. In Turkish law an attempt on life is defined as provoking or forcing suicide. Threats of death are not included in this context.

All kinds of torture, mental and physical cruelty, not satisfying a spouse's needs, forcing a sexual relationship and sequestration are all considered to be acts of serious misbehaviour.

In addition, indignity is also a ground for divorce. However, the Court of Cassation ruled that not all behaviour that causes indignity will be a ground for divorce. It must be an extreme form of indignity.

Delinquency or living a dishonourable life. Delinquency is considered a ground for divorce if the behaviour is degrading (for example, robbery, fraud, falsification, smuggling, embezzlement and rape).

Living a dishonourable life means a life that does not comply with the honour, esteem or self-respect as understood in Turkey. The behaviour must be continuing in order to constitute living a dishonourable life. The Court of Cassation will consider the life style of the parties and its continuity when deciding whether or not the spouse is living a dishonourable life.

Desertion. Under the Turkish Civil Code, desertion means that one of the spouses has left the family home without a valid reason. In practice, in order to satisfy this ground, the desertion of the spouse must be for the purpose of ending a common life together.

Mental illness. Mental illness is also accepted as a ground for divorce (except in the situation where one of the spouses has a serious and incurable illness). The mental illness must be determined and verified by medical science. For example, the Court of Cassation does not recognise epilepsy as a mental illness. The mental illness must also be proven by a report to be untreatable.

General grounds

Breakdown of marriage. This is the most common ground for divorce in Turkey and is also known as a high-conflict divorce. To establish this ground, the conflict must be serious and violent and spouses must not want to continue with a common life together. Examples include the breakdown of a marriage caused by excessive jealousy that has made the marriage unbearable or forcing the wife to live with the husband's whole family (including distant relatives) in the same house and forcing her to serve the family.

Consensual divorce. To establish this ground, the marriage must have lasted for at least one year. Spouses must file the divorce case together or if one spouse files, the other spouse must accept the divorce. The judge is obliged to hear the spouses and consider the protocol signed by the parties in order to pronounce the divorce.

Nullity

Nullity is divided into two sections under Turkish Law, non-existence and invalidity.

Non-existence. The marriage will not be considered to be a marriage if the founding elements of marriage do not exist. For example, same-sex marriages, marriage without a registrar of marriage, marriage without the attendance of one of the parties or marriage by proxy are non-existence marriages.

Invalidity. The following are examples of an invalid marriage:

  • If one of the parties is already married and marries another person, the second marriage will be invalid.

  • If one of the parties is unconscious during the ceremony.

  • If one of the parties is suffering from a mental illness.

  • If the parties are related and by their relation it is forbidden to marry.

  • If one of the parties married as a result of the fraudulent behaviour of the other party.

  • If one of the parties is mistaken about the identity of the other party or the qualifications that he/she has.

Judicial separation

The grounds for juridical separation are the same as for divorce. When a judicial separation is granted, the spouses' common life will discontinue and the spouses' can choose to live in separate places of domicile.

The obligations of the union of the marriage will continue (including the obligation of loyalty) and no rights gained through the marriage will be lost. The court will rule on the decision of judicial separation. The judicial separation starts when the court's judgement is definite and lasts between one and three years in duration. On the expiration of the duration, the judicial separation will automatically end, with no further judgment. Spouses can also decide to establish a common life together again and the judicial separation will end. If the parties cannot establish a common life after the judicial separation, one of the spouses will file for divorce.

Finances/capital and property

8. What powers do the courts have to allocate financial resources and property on the breakdown of marriage?

In the absence of any pre- or post -nuptial agreements, the legal matrimonial property regime is the "participation on the acquired assets" which means that the spouses will benefit equally from the assets acquired during the marriage (see Question 10).

If a pre- or post-nuptial agreement is in place, it must be analysed. If it is found to be valid, the court will uphold the agreement. If the agreement is found to be invalid or does not exist, the court will deliver a judgment regarding the allocation of financial resources and property according to the Turkish Civil Code. The court will distinguish between individual property and property acquired during the course of the marriage when making a judgement. In addition, during the divorce proceedings, the court will request that transfers of assets to third parties of any related transaction are limited. Capital assets must be kept secure until the end of the judgment and the parties can ask the court to take any necessary measures to achieve this.

 
9. What factors are relevant to the exercise of the court's powers?

The court will first need to determine the type of assets that are included in the division of matrimonial property, that is, whether they are personal or not. In this context, any personal belongings, assets gained by way of a gift or any compensation awarded for pain and suffering are considered personal assets. These assets will not be included in the division of assets. The court must use an expert's opinion in determining the value of the assets.

 
10. What is the court's current position on the division of assets?

Before 1 January 2002, the Court of Cassation applied a separation of property regime to its judgments on the division of assets. This means that unless parties have reached any other property regime both parties will be able to claim sole ownership on the assets that are registered to their name.

However, after 1 January 2002, the regime of participation in acquired property has started to be applied more often (see Question 8). This is an advanced form of the former statutory regime of separation of property where the assets and debts of the spouses are calculated by taking their date of acquisition into account. Under Article 218 of the Turkish Civil Code, three types of property exist, acquired properties, personal assets and shared properties.

Acquired properties

Under Articles 222 to 223 of the Turkish Civil Law, unless proved otherwise, all assets registered to one of the parties will be incorporated in the acquired property regime. The property must have written conditions attached to clearly state that:

  • There is a valid asset that is subject to distribution.

  • The acquisition of this asset must be finalised when the acquired property regime is applicable.

  • The acquired property must be added to the pool of assets that are subject to distribution.

  • The acquired property must not be considered a personal asset by law or agreement between the parties.

Personal assets

Under Article 220 of the Turkish Civil Code, personal assets are defined as personal belongings and are assets that have been acquired by either of the parties before the acquired property regime entered into force on 1 January 2002. Such assets include:

  • Assets acquired without consideration, for example, inheritance or gifts.

  • Non-pecuniary damages.

  • Partial social security payments.

  • Compensation related to labour law.

It is important to note that personal assets are not included in the division of assets (see Question 9).

Finances/maintenance

11. How does ongoing spousal maintenance operate following marital breakdown?

If one of the parties will suffer poverty as a result of the dissolution of the marriage and that party is not significantly more at fault than the other party, that party will be entitled to claim maintenance from the other party (Article 175, Turkish Civil Code). This is provided that the maintenance is in proportion to the financial strength of the other party.

In addition, temporary maintenance is available during the divorce proceedings. This is to cover costs relating to the accommodation and maintenance of the spouse and childcare arrangements. During the divorce proceedings, the court will take control over the spouses' assets and the judge can also take any other measures that are considered necessary. The provision of maintenance will be considered by the court, regardless of whether maintenance has been requested by the parties. In cases where the parties do not agree who will continue to reside in the family home, the judge will decide.

The question of fault is not important to obtain temporary maintenance. Any order for temporary maintenance will be removed when a final decision about maintenance is confirmed.

 
12. Is it common for maintenance to be awarded on marital breakdown?

It is common for maintenance to be awarded on marital breakdown in Turkey. In most cases of divorce, the judge will rule on the granting of maintenance (except in the case of consensual divorce) if certain conditions are satisfied.

Conditions for granting a maintenance award

The court can only make an award for maintenance on the request of one of the parties. The request is not required to be made during the divorce proceedings, it can be made after. Spouses can make a claim for spousal maintenance at any point during the year after the divorce has been finalised (Article 178, Turkish Civil Code).

The spouse claiming spousal maintenance must be the faultless party or at less fault than the other party. This is due to the indefinite nature of spousal maintenance, which will continue until the death of the party.

If the spouse claiming maintenance is more at fault than the other spouse, the court will reject the request for maintenance, even if the spouse will be in need after the divorce. The new Turkish Civil Code has made women and men equal with regard to requesting spousal maintenance.

The spouse requesting spousal support must be in need after the divorce. This means that the spouse will have a reduced standard of living and be in poverty after the marriage and can request maintenance from the other spouse. It is the practice of the Turkish Courts that losing a high standard of living is considered as poverty and the courts will order the other spouse to pay spousal maintenance. For example, a spouse can obtain maintenance even if not in poverty and working in a modestly-paid role when they had been married to a rich person.

Amount of maintenance to be awarded

The amount of spousal support must be proportionate to the other spouse's financial capabilities. The upper limit of the amount of spousal support is dependent on the financial position of the other spouse. If the other spouse is not able to pay and is also in poverty, the court will not make an order for maintenance.

 
13. What is the court's current position on maintenance on marital breakdown?

The court can decide to award maintenance (for an indefinite period of time) on the request of a spouse who will be in financial need as a result of the divorce. The court will decide whether or not the party will be in financial need and will also consider the party's financial position. However, the party requesting the maintenance must be less at fault than the other party in order to receive maintenance.

A Court of Cassation decision on 7 February 2013, (2012/23551 E 2013/1785), also recognised in the Court of Cassation Assembly of Civil Chambers' decision on 7 October 1998 (1998/2-656E and 1998/688K), determined that people who cannot afford their necessary expenses (for example, food, clothes, medical costs and transport) will be considered to be in financial need.

In another decision by the Court of Cassation Assembly of Civil Chambers, it was found that receiving the minimum wage must not be considered an obstacle for claiming maintenance.

Child maintenance

14. On what basis is child maintenance calculated?

Child maintenance is a necessary requirement for participating in the cost of a child's education and care. The maintenance must be proportionate to the financial capabilities of the parent who does not have custody of the child. The amount of child maintenance must be determined by calculating the cost of the child's necessary expenses (for example, food, clothing, holidays and transport).

The financial status of both parents must be considered, along with the needs of the child, when calculating child maintenance. An equitable amount must be determined.

It is possible to bring an action to increase or decrease the amount of child maintenance.

Child maintenance must be paid on a monthly basis and not as a lump sum payment.

Reciprocal enforcement of financial orders

15. What is the legal position on the reciprocal enforcement of financial orders?

The general practice regarding the recognition and enforcement of foreign judgments is dependent on the fulfilment of certain conditions (see Question 6). However, the conditions do not need to be fulfilled for the part of the foreign judgment that relates to financial orders.

Turkey has ratified the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention). In accordance with the Convention, if both states are parties to the Convention, the judgment at the jurisdiction of one state will not be required to fulfil the conditions of enforcement in the other state. The Convention is only related to the recovery of maintenance from one state party to provide for the other state party. Under the Convention, the party owed maintenance will apply to the Remitter Office with the required documents. The Remitter Office in Turkey is the Public Prosecution Offices.

Financial relief after foreign divorce proceedings

16. What powers are available to the court to make orders following a foreign divorce?

Under the International Private and Civil Procedure Law, foreign judgments cannot be enforced without recognition and enforcement of the judgment (expect in cases concerning maintenance).

There are no specific statutory provisions dealing with financial provisions following a foreign divorce.

Under Turkish Law, it is possible to increase or decrease the amount of maintenance awarded in a foreign divorce by bringing a legal action.

Turkey has also ratified the Hague Convention on the Law Applicable to Spousal and Child Maintenance Obligations 1973.

 

Children

Custody/parental responsibility

17. What is the legal position in relation to custody/parental responsibility following the breakdown of a relationship or marriage?

It is accepted that under Turkish civil law, child custody has close links with public order and as such can only be regulated by the law and not by an agreement made between the parents. The judge will decide on the child's custody even if the parties do not request such a decision from the court during the divorce case.

In Turkish law, custody is regulated under the Turkish Civil Code (No. 4721). The custody rights of a parent begin with the birth of the child and continue until the child is 18 years old. The child is considered to be under the custody of his mother and father and during the marriage the parents assert their custodial rights together. As a result, if spouses agree that the mother can take the child to another country during the marriage and both spouses apply this agreement there will be no legal issue. However, if spouses have such an agreement but one of the spouses does not comply with its terms, it is not possible to enforce the agreement under Turkish law.

In cases of divorce, the judge will entrust custody on one of the spouses (Article 336, Turkish Civil Code). The judge will base his decision on the best interests of the child (even if the parents have a notarial agreement). Joint custody is not allowed in Turkish law, there is only sole custody and in cases of divorce, the court will award custody to one parent. The non-custodial parent is limited to visitation rights that are arranged by the court. The custodial parent must comply with the visitation rights that are declared in the court's verdict.

There are no specific grounds to determine custody and every case is considered individually. The judge will consider several factors, including but not limited to the financial position of the parent, and whether the parent is able to afford the costs associated with custody of the child. In addition, in determining what is in the best interests of the child, the jobs, salaries and lifestyles of the parents will be important considerations.

The mother will typically be given custody of an infant child as the child is dependent on his mother's care. In addition, in applications before the Supreme Court, the mother will generally be awarded custody due to the reasoning that the child needs the love and care of his mother.

 
18. What is the legal position in relation to access/contact/visitation following the breakdown of a relationship or marriage?

Under Article 323 of the Turkish Civil Code, both parents (regardless of who has custody of the child) have the right to request contact with the child. The party requesting contact with the child must ensure that the request does not hinder the child's development or education. The request may be rejected if it causes the child distress. The right can also be removed if used in a way that causes damage to the child. In exceptional circumstances, the right to contact can also be granted to third parties (particularly relatives).

If the custodial spouse wants to move to another country, he/she must report this to the court as the court is responsible for regulating the visitation rights of the non-custodial parent according to the parents' lifestyle. The court will regulate visitation rights in a different way in cases where the custodial parent lives abroad, for example the court may decide that the child will spend the summer holidays with the non-custodial parent in Turkey.

The Assembly of Civil Chambers states, in one decision, that banning a common child from leaving the country prevents the mother from performing her custodial obligation and violates the freedom of travel which is a fundamental right under the Turkish Constitution. As a result, banning a child from leaving the country should not be allowed.

The Assembly of Civil Chambers also stated that a foreign parent can still be awarded custody of the child. The Supreme Court had previously made different decisions on the matter asserting that custody must be given to the Turkish father on the grounds that the mother is living abroad and the child will not be raised according to Turkish culture and traditions. In later decisions, the Supreme Court changed its point of view and awarded custody to foreign mothers stating its belief that the benefit to the child is more important than being raised in Turkey. If it is a benefit for the child to live with the mother, the fact that the mother is foreign is irrelevant. The visitation rights of the non-custodial parent will be regulated by considering the custodial parent and the child living abroad. The non-custodial parent will have visitations rights within a period determined by the court which may be during the winter and summer holidays.

International abduction

19. What is the legal position on international abduction?

On 1 August 2008, Turkey ratified the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention). Any provisions of the Hague Child Abduction Convention will be valid and the procedure for returning the child will begin. Article 90 of the Constitution provides that the Hague Child Abduction Convention must be applied equally with national laws and its principles and conditions must be followed by the Turkish courts accordingly.

Leave to remove/applications to take a child out of the jurisdiction

20. What is the legal position on leave to remove/applications to take a child out of the jurisdiction? Under what circumstances can a parent apply to remove their child from the jurisdiction against the wishes of the other parent?

The custodian parent has the right to decide on the child's personal needs including the child's place of domicile. Unless agreed otherwise, the non-custodian parent has a right to establish a personal relation with the child. In the case where a child is removed from the jurisdiction by voluntary agreement, the family court can decide on visitation rights according to the parties' living conditions and the need to consider the best interests of the child.

During the marriage, a child is under the custody of both parents and to move the child out of the jurisdiction without the consent of the other party is not allowed. In such a case, the Hague Child Abduction Convention principles (that is, Article 13) and other applicable law principles will be considered to decide whether there is a need to move the child out of the jurisdiction.

 

Surrogacy and adoption

Surrogacy agreements

21. What is the legal position on surrogacy agreements?

Under Turkish Law, the mother is the person who gives birth to the child. This is a fact that cannot be disputed.

Surrogacy agreements are against Turkish legal rules and personal rights and are considered to be null and void in Turkey, and cannot be executed. Parties cannot force each other to carry out the obligations of a surrogacy agreement. If a surrogate mother gets paid under the terms of a surrogacy agreement, the money can be a form of unjust enrichment and can be taken back under the Turkish Obligation Law.

Adoption

22. What is the legal position in relation to adoption? Is adoption available to individuals and cohabiting couples (both heterosexual and same-sex)?

Adoption is regulated under Articles 305 to 320 of the Turkish Civil Code. The following conditions must apply:

  • The person wanting to adopt must have looked after the child for at least one year.

  • A couple with other children must not let the adoption of a child negatively affect any other children that they have.

  • A couple wanting to adopt must have been married for at least five years and both must be at least 30 years of age.

  • An unmarried person wanting to adopt must be at least 30 years of age.

  • Unmarried and same-sex couples cannot adopt.

  • There must be at least 18 years' difference between the adopting person and the child being adopted.

 

Cohabitation

Cohabitation

23. What legislation (if any) governs division of property for unmarried couples on the breakdown of the relationship?

There is no regulation for the division of property for unmarried couples. It is a very problematic area for unmarried couples and religiously married couples (not legal).

 

Family dispute resolution

Mediation, collaborative law and arbitration

24. What non-court-based processes exist to resolve disputes? What is the current status of agreements reached through mediation, collaborative law and arbitration?

Mediation is not commonly used as a method for resolving family law disputes. Legal action remains the most common method of dealing with family disputes.

There are two conditions that must be satisfied for a dispute to be eligible for arbitration:

  • The first is whether or not the arbitration is convenient. The Court of Cassation has determined that disputes that are unrelated with public order are convenient and can be resolved using arbitration. Disputes related with public order cannot be solved through mediation.

  • The second is whether the parties agree to settle the dispute using arbitration.

In Turkey, all family issues are related with public order. Therefore, it can be concluded that family disputes are not convenient for arbitration.

 
25. What is the statutory basis (if any), for mediation, collaborative law and arbitration?

Not applicable.

 

Civil partnership/same-sex marriage

26. What is the status of civil partnership/same-sex marriage? What legislation governs civil partnership/same-sex marriage?

Civil partnership and same-sex marriage are not allowed or recognised in Turkey.

Under the Turkish Civil Law, the institution of civil partnership does not exist. Article 5 of the International Private and Procedure Law provides that any provision of foreign law that is contrary to the public order of Turkey will not be applied to the case. In such cases, where it is considered necessary, the Turkish law will be applicable. Under Turkish Civil Law, marriage has close links with public order and the form of the marriage is strictly regulated, as a result civil partnerships are not recognised or regulated in Turkey.

 

Controversial areas and reform

27. What areas of the law (if any) are currently undergoing major change? Which areas of law are considered to be particularly controversial?

There are some controversial areas in Turkish family law and several gaps in the Turkish Civil Code. Same-sex marriages are not regulated under the Turkish Civil Code. As a result, same- sex couples cannot take advantage of some of the provisions of the Turkish Civil Code, which is a violation of their human rights. This needs to be addressed and the law reformed.

The subject of married women's surnames is also a controversial area. Under Turkish law, it is not possible for women to use their maiden name when they are married. A woman is able to use both her family name and her husband's surname but not only her family name.

A major change in family law relating to domestic violence occurred in 2012. Under the Protection of the Family and Prevention of Violence against Women Code (Law no. 6284) new regulations were introduced. As a result, protective mechanisms were developed, including the establishment of centres for domestic violence victims to take refuge and avoid violence. Despite the enactment of the Code, problems still exist in relation to domestic violence as there are not enough shelters in Turkey. To help solve the problem, programmes need to be developed to educate society and there need to be urgent reforms of the criminal justice system.

 

Online resources

Turkish Civil Code

W www.mevzuat.gov.tr/MevzuatMetin/1.5.4721.pdf

Description. The official website for the updated version of the Turkish Civil Code. In the Turkish language.

Turkish Civil Procedure Code

W www.mevzuat.gov.tr/MevzuatMetin/1.5.6100.pdf

Description. The official website for the updated version of the Turkish Civil Procedure Code. In the Turkish language.

Turkish International Private and Procedural Law

W www.mevzuat.gov.tr/MevzuatMetin/1.5.5718.pdf

Description. The official website for the updated Turkish International Private and Procedural Law.

W www.ispramed.it/root/wp-content/uploads/2012/10/ippl_turkey.pdf

Description. The unofficial website, with an English translation of the Code.

Code of Protection of the Family and Prevention of Violence against Women

W www.mevzuat.gov.tr/MevzuatMetin/1.5.6284.pdf


Contributor profile

Mert Yalçın, Managing Partner

Yalçın & Toygar & Tüfekçi Law Office

T +90 212 293 09 09 + 90 532 630 60 62
F +90 212 293 12 12
E myalcin@yttlaw.com
W www.yttlaw.com

Professional qualifications. Registered, Turkish Union Bars, 2001; Attorney, Istanbul Bar, 2012

Areas of practice. International family law; civil law and international private law.

Recent transactions

  • Acting for a US$120 million distribution of acquired property case.

  • Acting for the Swedish Government on a number of cases relating to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Hague Convention).

  • Acting for the Canadian Embassy Ankara's recommended lawyer for a number of Hague Convention cases.

  • Advising London city courts as a Turkish international family law expert on a number of cases.

  • Advising a number of foreign and Turkish clients on various cases on divorce, custody, Hague Convention, maintenance, pre-nuptial agreements and related legal matters.

Languages. Turkish, English, French, Italian

Professional associations/memberships.

  • Member of the Istanbul Bar Association.

  • Member of AIJA (International Young Lawyers Association, National Representative for Turkey, 2010 to 2014).

  • Fellow of the International Matrimonial Lawyers Academy (IAML).


{ "siteName" : "PLC", "objType" : "PLC_Doc_C", "objID" : "1248177620631", "objName" : "Family law in Turkey", "userID" : "2", "objUrl" : "http://us.practicallaw.com/cs/Satellite/us/resource/6-616-4228?null", "pageType" : "Resource", "academicUserID" : "", "contentAccessed" : "true", "analyticsPermCookie" : "2-605a14e:15b15f9ebbb:19fa", "analyticsSessionCookie" : "2-605a14e:15b15f9ebbb:19fb", "statisticSensorPath" : "http://analytics.practicallaw.com/sensor/statistic" }