When One Spouse is Abroad | How to Divorce (Turkey)

A divorce case acquires an international dimension when a “foreign element” is involved, such as one of the parties being a foreign national, residing abroad, or the marriage having taken place in a foreign country. The presence of this element means the case cannot be handled through standard domestic procedures and that international private law rules will apply.

A party wishing to divorce a spouse who is abroad essentially has to choose one of two main strategic paths:

1. Filing a New Divorce Case Directly in Turkey: This path requires the procedural aspects of the case (service of process, deadlines, etc.) to be fully subject to Turkish law.

2. Having a Divorce Decree Obtained in the Spouse’s Country of Residence Recognized in Turkey: This path can be pursued either through a judicial process (recognition and enforcement lawsuit) or, under certain conditions, through a faster administrative process.

Which strategy is more appropriate depends on the specific situation; variables include the spouses’ citizenship status, their current and last common residence, the level of cooperation or dispute between them, and whether the divorce includes financial consequences like alimony, division of property, or child custody. This article will examine the legal processes, advantages, and challenges of both paths.

Option 1: Filing a Divorce Case Directly in Turkey

This section covers the process of initiating a divorce case directly within the Turkish judicial system when one of the spouses is abroad.

How is the Jurisdiction of Turkish Courts Established?

Determining the authority of Turkish courts to hear a case is the first step in international divorce proceedings.

• General Jurisdiction Rule (TMC Article 168): According to the Turkish Civil Code (TMC) No. 4721, a divorce case can be filed in the court of the plaintiff’s residence, the defendant’s residence, or the place where the spouses last lived together for at least six months before the lawsuit. This provision grants significant flexibility to the plaintiff residing in Turkey in choosing the court.

• Guarantee for Turkish Citizens (PIL Article 41): A critical guarantee exists for Turkish citizens. Even if the above conditions are not met (e.g., if both spouses live abroad), a Turkish citizen can “always” file for divorce in Turkey. In such cases, the competent court is, respectively, the court of the person’s last place of residence in Turkey, or if none, one of the courts in Ankara, Istanbul, or Izmir.

Which Country’s Law Will Apply? (Applicable Substantive Law)

The most important stage after determining jurisdiction is identifying which country’s law will apply to the merits of the divorce (grounds for divorce, alimony, custody). According to Article 14 of the Law on Private International Law (MÖHUK) No. 5718, the hierarchy is as follows:

1. Common National Law: If both spouses are citizens of the same country (e.g., both German citizens), the law of that country applies. If one spouse has dual citizenship (including Turkish), Turkish law is considered the common national law.

2. Law of Common Habitual Residence: If the spouses have different nationalities, the law of the country where they habitually reside together applies.

3. Turkish Law (Lex Fori): If neither of the above conditions is met (e.g., different nationalities and no common habitual residence), Turkish law is applied by default.

While the merits of the case are subject to the law determined by this hierarchy, all procedural matters, such as how the case proceeds and how evidence is submitted, are exclusively subject to Turkish law.

The Critical Hurdle: Serving Notice Abroad (Tebligat)

Proper service of process is a cornerstone of the right to a fair trial. The court cannot proceed without it. The total duration of a contested divorce case often depends on how long this first step takes.

• Service to a Turkish Citizen Abroad (Service Law art. 25/a): This process is relatively faster. The court sends the documents directly to the Turkish consulate or embassy in the relevant country. Translation is not required. The consulate notifies the citizen. Estimated Time: 1 to 3 months.

• Service to a Foreign National Abroad (Service Law art. 25): This process is more complex and lengthy. The documents must be translated into the official language of the country where service is to be made. They are then sent through diplomatic channels (Ministry of Justice, Ministry of Foreign Affairs, Turkish mission) to the foreign authorities, who are requested to serve the notice according to their local laws. This process is often subject to the Hague Service Convention. Estimated Time: 4 to 6 months or longer.

• Address Unknown (Service by Publication): As a last resort, if the spouse’s address cannot be found, “service by publication” is used. This can add several more months to the case duration.

Case Scenarios: Contested vs. Uncontested Divorce

Contested Divorce

Following the (potentially lengthy) service of process, the case proceeds with response petitions, a preliminary hearing, submission of evidence (witnesses, etc.), investigation hearings, and a final verdict. The international nature of the case can slow down each procedural step. Therefore, a contested case can last between 1 to 3 years.

Uncontested Divorce

While it may seem like the fastest route, an uncontested divorce can become the most difficult if one spouse is abroad.

• The Main Challenge (TMC art. 166/3): The law mandates that for an uncontested divorce, the judge must “personally hear the parties and be convinced that their wills have been freely declared.”

• Prohibition of “Letters Rogatory” (İstinabe): Established Court of Cassation (Yargıtay) precedents strictly prohibit hearing the spouse abroad through a foreign court or consulate (letters rogatory). The rationale is that the Turkish judge must personally observe the parties to assess their free will.

• Hearing via Video Conference (SEGBİS): Hearing the spouse abroad via video conference (SEGBİS) is a legal grey area. While some lower courts accept it, the prevailing opinion, also adopted by the Court of Cassation, is that the law requires physical presence and SEGBİS cannot be used for this purpose.

This means that for an uncontested divorce, the spouse abroad must physically attend the hearing; otherwise, the case risks being dismissed or converted into a contested divorce.

Option 2: Recognition of a Foreign Divorce Decree in Turkey

This strategy involves completing the divorce process abroad and then making the decision legally valid in Turkey.

The Vital Difference: “Recognition” (Tanıma) vs. “Enforcement” (Tenfiz)

• Recognition (Tanıma): Allows a foreign court judgment to have the effect of a final judgment in Turkey. If the only goal is to update the marital status to “divorced” in the Turkish civil registry, a “recognition” lawsuit is sufficient. Recognition registers a legal status.

• Enforcement (Tenfiz): Makes a foreign court judgment enforceable in Turkey. If the foreign decree includes provisions that require action by Turkish authorities, such as alimony, child support, compensation, or division of property, an “enforcement” lawsuit is mandatory. An enforcement judgment automatically includes recognition.

Recognition and Enforcement Lawsuit Process

• Core Requirements (PIL art. 50, 54):

  1. A finalized (non-appealable) judgment issued by a foreign court.

  2. The judgment must not be contrary to Turkish public order.

  3. The defendant’s right to defense must have been respected in the foreign proceedings.

• Required Documents: The original foreign court decree, a document or annotation showing it is finalized, an Apostille certification (which validates the document internationally), and notarized Turkish translations of all these documents.

• Process: The lawsuit is filed in the competent Family Court. The court does not re-try the divorce; it only verifies the conditions above. If the other party does not object, the process can take 6 to 12 months, largely dependent on serving notice to the ex-spouse.

The “Turkish Public Order” Hurdle

“Public order” is a legal “safety valve” that allows courts to reject foreign judgments that fundamentally contradict Turkish principles of justice or morality. The court is strictly forbidden from reviewing the merits of the foreign case (e.g., whether evidence was sufficient). The review focuses on whether the result of enforcing the judgment in Turkey would be unconscionable. The Court of Cassation frequently cites violations of the right to defense as a breach of public order.

The Fastest Route: Administrative Recognition (Without a Lawsuit)

This is a highly practical and fast method for registering simple divorce decrees without going to court, established by Article 27/A of the Civil Registration Services Law.

• Procedure: The application can be made at a Turkish Consulate abroad or a Civil Registry (Nüfus) Office in Turkey.

• Application Method: The ex-spouses can apply jointly. Critically, if the ex-spouse is a foreign national, the Turkish citizen spouse can apply alone to register the divorce.

• Limitation: This administrative route is strictly for recognition only. It can be used to update marital status, but it is not available if the foreign decree includes enforceable provisions like alimony, custody, or property division. An enforcement lawsuit is mandatory for those.

• Estimated Time: Ranging from a few weeks to a few months, this is by far the fastest option when applicable.

Strategic Analysis: Which Path is Right for You?

Which strategy to choose is specific to the situation. The table below summarizes the options to aid in this decision.

Giving Power of Attorney from Abroad

Due to the complexity of international divorce cases, seeking assistance from a lawyer specialized in Turkish family law is strongly recommended. There are two ways to grant power of attorney from abroad:

1. Via a Turkish Consulate (Easiest Method): The person applies in person with their ID/passport and the lawyer’s information. The document is drafted in Turkish and is immediately valid in Turkey.

2. Via a Foreign Notary: The power of attorney can be drafted by a local notary. However, for it to be valid in Turkey, it must be certified with an Apostille.

A power of attorney for divorce must contain special authorities and include the person’s photograph to be legally valid.

Conclusion and General Assessment

The process of divorcing a spouse abroad offers three main strategic paths under Turkish law: filing a contested lawsuit in Turkey (1-3 years), having a foreign decree recognized by a court (6-12 months), or having it recognized administratively (a few weeks/months).

The right path depends entirely on the level of cooperation between the spouses and whether the divorce involves only a change in marital status or also the enforcement of financial and custody provisions. If the parties are cooperative and there are no orders to enforce, obtaining a divorce abroad and registering it administratively in Turkey is the fastest solution. Conversely, where there is no cooperation, it must be accepted from the outset that the process will be long and complex, especially requiring patience during the international service of process stage.