Turkish private international law on matrimonial property and successions Zeynep Derya TARMAN Koç Üniversitesi Hukuk Fakültesi

Legal Issues When do Turkish courts have jurisdiction on matrimonial property and successions with a foreign element? Assuming Turkish courts have jurisdiction, which law will be applicable? What if one of the parties receives a decision from the court in Belgium, will it be enforced in Turkey?

Turkish PIL Code The Turkish PIL Code 2007, consisting of 66 articles, governs three main issues: 1) which state law is applicable in private matters having cross-border implications, 2) which state court has jurisdiction in such matters and 3) under which conditions a foreign decision may be recognized and enforced.

Turkish PIL Code Turkish PIL Code has two main parts: 1) Conflict of Laws 2)International Civil Procedural Law: regulates international jurisdiction of Turkish courts and the recognition and enforcement of foreign court decisions and arbitral awards.

LEGAL ISSUE -I- When do Turkish courts have jurisdiction?

JURISDICTION

International Jurisdiction (Article 40) The international jurisdiction of Turkish courts shall be determined by the rules of domestic law on local jurisdiction.

Competent Turkish Courts Article 40 is the provision that leads to the competent court. It implies that the domestic law appoints the international competence of the Turkish courts. For this reason, when designating the competent court under Turkish law, the applied provisions are the rules of the Code of Civil Procedure.

General Competent Court Article 6 Civil Procedure Code The general competent court is the legal domicile of the defendant. Art. 168 Civil Code In divorce and separation cases, in addition to the court at the place of the plaintiff’s domicile, the court at the spouses common habitual residence for the last 6 months before the trial has jurisdiction.

Suits Relating to the Personal Status of Turkish Nationals (Article 41 PIL Code) (1) Suits relating to the personal status of Turkish nationals shall be heard before the court having local jurisdiction in Turkey, provided that these suits have not been or may not be brought before the courts of a foreign country, if there is no court having local jurisdiction in Turkey, before the court where the person concerned is resident, if he/she is not resident in Turkey, before the court of last domicile in Turkey and if there is no court of last domicile, before one of the courts in Ankara, İstanbul or İzmir.

Inheritance Suits (Article 43) (1) Suits relating to inheritance shall be heard at the court of last domicile in Turkey of the deceased, and at the court where the property belonging to the estate is situated if the last domicile was not in Turkey.

The Security to be paid to the court Article 48 of Code of Private International Law and Procedural Law: If a foreign real person or a legal entity files a lawsuit or join a lawsuit, that real person or the legal entity should give security in order to cover the damages that the other party might suffer and to cover the litigation costs.

Reciprocity Principle According to the reciprocity principle, a foreign real person or a legal person can be exempt from giving a security. This privilege can happen if the countries of the two parties have an international contract between them, claiming that they will not receive security from the citizens of the other country’s CONVENTION ON CIVIL PROCEDURE Art. 17 (Belgium and Turkey are party to)

LEGAL ISSUE -II- Assuming Turkish courts have jurisdiction, which law will be applicable?

Conflict of law rules in matrimonial property

Matrimonial Property Article 15 (1) The spouses may explicitly choose the law of either one of their habitual residences or their national laws at the time of marriage regarding matrimonial property; where no such choice has been made, the common national law of the spouses at the time of marriage, where there is no such law, the law of common habitual residence, and where there is no such law either, Turkish law shall apply. (2) In the liquidation of property, the law of the country where the immovable property is situated shall apply. (3) The spouses who acquire a new common national law after marriage may be subject to this new law without prejudice to the prior rights of third parties.

Choice of law explicitly one of their habitual residences or their national laws at the time of marriage regarding matrimonial property; -no renvoi -a seperate choice of law agreement or a clause in the marriage contract -no formal requirement for choice of law agreement

Applicable Law on the Basis of Nationality Article 4 b) for persons with more than one nationality, Turkish law, if they also have Turkish nationality,

No choice by the sposuses the common national law of the spouses at the time of marriage where there is no such law, the law of common habitual residence at the time of marriage, and where there is no such law either, Turkish law shall apply.

Habitual residence no definition “significant life center”: school of the kids, adress of invoices, workplace, home, bank account, time abroad. no minimum period of time continuity and intention

Conflict of law rules in successions

Inheritance Article 20 (1) Inheritance shall be governed by the national law of the deceased. Turkish law shall be applicable regarding immovable property situated in Turkey. (2) Provisions pertaining to the grounds for the opening of the succession, to its acquisition and partition shall be governed by the law of the country of estate. (3) Estate in Turkey without any heirs shall belong to the State. (4) The provision of article 7 shall apply to the form of testamentary dispositions. Testamentary dispositions made pursuant to the national law of the deceased shall also be valid. (5) Testamentary capacity shall be governed by the national law of the per­son making the disposition at the time of such disposition.

Inheritance General Rule İssues relating to the succession are governed by the law of the nationality of the deceased. This rule applies both to ab intestat succession and to testamentary succession.

Inheritance Exception I “immovables located in Turkey” are governed by Turkish law”. For immovables in Turkey, the nationality of the deceased is not relevant. This rule is not only limited to the issues of transmission of the assets (e.g. registration of the new owner in the real estate registry) but also to all succession issues (including determination of who the heirs are, etc.).

Inheritance Exception II Article 20(2) provides that the law of the country where the succession is opened, governs the causes of the opening of the succession, the transfer of the assets and the sharing out of the assets.

LEGAL ISSUE -III- What if one of the parties receives a decision from the court in Belgium, will it be enforced in Turkey?

RECOGNITION&ENFORCEMENT

Enforcement Article 50- Enforcement It is only possible to enforce foreign court decisions regarding claims pertaining to substantial law which have become final. Therefore, decisions of temporary relief and provisional seizure which are of a temporary nature may not be enforced in Turkey

Art.54 reciprocity exclusive jurisdiction public order due process

Article 54 a) First of all to enforce a decision rendered outside of Turkey, there should be reciprocity based on a treaty, statutory provision or actual practice between the countries.

Article 54 b) Second, the jurisdiction of the court at the place where the immovable is present is “exclusive” with regard to actions pertaining to the rights in rem (i.e. in a thing) on immovables in Turkey. Foreign court judgments which contain provisions pertaining to rights in rem on immovable may not be enforced in Turkey.

Article 54 c) Third, the foreign judgment should not be obviously contrary to the Turkish public order the contrariness of the enforcement of the foreign court judgment in Turkey to the Turkish public order is determined pursuant to the evaluation of the provision of the judgment.

Article 54 d) Fourth, the procedural requirements pertaining to the rights of defense of the person against whom the enforcement is sought should have been duly fulfilled. The fact that these procedural requirements are not duly fulfilled is sufficient for the rejection of the enforcement of the foreign court judgment.

Recognition Article 58 (1) The acceptance of a foreign court judgment as conclusive evidence or as a final judgment shall be subject to the confirmation by the court that the foreign judgment fulfills the conditions for enforcement. Regarding recognition, subparagraph (a) of the first paragraph of article 54 shall not apply.

Thank you for your attention! Zeynep Derya TARMAN Koç Üniversitesi Hukuk Fakültesi