Matrımonial property regimes ın marriages with foreign elements.
Although every marriage begins with the hope of building a happy family, many marriages fail to meet the parties expactions and ultimately end in divorce.
The dissolution of a marriage by divorce gives rise not only to emotional consequences but also to significant legal and financial consequences.
The spouses’ rights over property acquired during the marriage way may vary depending on the law applicable to their matrimonial property regime. Under Turkish Law, spouses generally have equal rights over property acquired during the marriage. Unless the spouses have expressly chosen another matrimonial property regime, the statutory regime of participation in acquired property applies.
Under this regime, each spouse retains ownership of his or her personal property and assets acquired through inheritance.However, assets acquired through the labor and earnings of either spouse during the marriage are subject to equal participation by both spouses. Such assets may include real estate, bank accounts, company shares, partnership interests, and certain compensation claims, all of which are taken into account during the liquidation of the matrimonial property regime.
CHOİCE OF APPLICABLE LAW
Pursuant to Turkısh Private International Law, spouses may expressly choose either:the law of their common habitual residence at the time of marriage;or the national law of either spouse at the time of marriage to govern their matrimonial property regime.
If no such choıce haas been made , the applicable law is determined as follows:
the spouses common national law at the time of marriage; ıf there is no common nationality, the law of their common habitual residence at the time of marriage;
if neither exists, Turkish law applies.
Habitual residence refers to the place where a person has established the center of his or her life on a continuous and regular basis, where personal, social and economic ties are concentrated. It is not necessarily the same as the person’s officially registered residence.
IMMOVABLE PROPERTY
The liquidation of immovable property is governed by the law of the country where the property is located (lex rei sitae) , regardless of the law otherwise appicable to the matrimonial property regime.
Where the spouses subsequently acquire a new common nationality after marriage, that law may become applicable, provided that the rights of the third parties are not adversely affected.
COURT OF CASSATION (8TH CİVİL CHAMBER)
FİLE NO:2014/3895
DESİCİON NO:2015/14169
DATE:29 JUNE 2015
The parties, both Turkısh nationals,were married in Turkey in 1985
The Court held that the law applicable to the liquidation of the matrimonial property regime is determined pursuant to Article 15of the Turkısh Act on Private International and Procedural Law Act on Private International and Procedural Law. Where the spouses have not made a valid choice of law, the applicable law is determined by reference to their common nationality at the time of marriage, failing which the law of their common habitual residence applies. If neither connecting factor exists, Turkish law governs.
Since the parties were Turkısh citiziens, married in Turkey and had not made any choice of law, Turkısh law was held to be applicable.
Under Article 225 of the Turkısh Civil Code, where a marriage ends by divorce, the matrimonial property regime terminates retroactively as of the date on which the divorce action was filed.
Although the parties divorce had been granted by the Arnhem court of Appeal in 1993 and that Judgmet was recognized in Turkey only in 2012, Article 59 of Law no 5718 provides that a foreign judgment acquires res judicata effect upon its finalization in the country of origin and subsequent recognition in Turkey.
Accordingly, the Court ruled that the matrimonial property regime had already terminated on the date when the divorce proceedings were commenced before the Dutch court. Since all disputed assets had been acquired after that date, they constituted the husband’s personal property and therefore could not be included in the liquidation of the matrimonial property regime. Any claims concerning those assets could only be pursued under the general provisions of law before the competent civil courts.
The Court further emphasized that the parties’ continued registration as married in Turkey until recognition of the foreign divorce judgment did not alter the legal fact that the matrimonial property regime had already ended as of the filing date of the foreign divorce proceedings.
Article 15 of Law No. 5718 further provides that spouses may expressly choose either the law of their common habitual residence at the time of marriage or the national law of either spouse. Absent such a choice, the spouses’ common national law applies; if there is no common nationality, the law of their common habitual residence governs; and if neither exists, Turkish law applies.
The second paragraph of Article 15 further provides that, in relation to immovable property, the law of the country where the property is situated governs its liquidation.
Court of Cassation (8th Civil Chamber)
File No.: 2013/219
Decision No.: 2013/10820
Date: 10 July 2013
The Court clarified that, pursuant to Article 2(1) of Law No. 5718, Turkish judges are required to apply the applicable foreign law ex officio where the conflict-of-laws rules designate foreign law as applicable.
The Court further emphasized that Article 15 of Law No. 5718 merely determines which substantive law governs the matrimonial property regime and does not regulate the international jurisdiction of Turkish courts.
International jurisdiction is governed by Articles 40 and following of Law No. 5718. Under Article 40, the international jurisdiction of Turkish courts is determined by the domestic rules on territorial jurisdiction. Article 41 specifically governs actions concerning the personal status of Turkish citizens where proceedings cannot be brought before foreign courts.
Accordingly, the Court held that a Turkish court cannot declare itself incompetent solely by relying on Article 15, as that provision concerns only the applicable law and not jurisdiction.
Furthermore, the Court ruled that Turkish courts have no authority to declare that a foreign court is competent. Their authority extends only to determining whether Turkish courts possess international jurisdiction under Turkish law.
The Court concluded that, in disputes involving a foreign element, the court must first determine whether it has international jurisdiction. Only after establishing jurisdiction should it identify the applicable substantive law under the relevant conflict-of-laws rules.
The Court also noted that, where necessary, the parties may assist in establishing the content of foreign law, and the court may seek information under the European Convention on Information on Foreign Law.
Finally, the Court held that objections concerning international jurisdiction constitute preliminary objections and must be examined as a preliminary issue in accordance with the Turkish Code of Civil Procedure before the court proceeds to the merits of the dispute.
For detailed information and legal assistance regarding international matrimonial property regimes and cross-border family law matters, please contact our office at +90530 434 48 48
