Which Country's Law Applies to Divorce with a Foreign Element?

Divorce with a Foreign Element

Prepared by: Constantinople

Proceedings being heard in Türkiye does not mean that Turkish law necessarily applies to every issue. For the grounds and effects of divorce, the general starting point is the spouses' common national law. If nationalities differ, the law of their common habitual residence is considered; if that connection is also absent, Turkish law applies. Habitual residence concerns the actual centre of a person's life; an old shared address or the country of the last holiday is not sufficient by itself.

This sequence requires examination of the filing date, multiple nationality, content of foreign law and applicable international conventions. A spouse who is also Turkish should not be assessed solely by reference to a foreign passport. However, one spouse being Turkish also does not establish Turkish law for every claim in every case. Separate connecting rules or conventions may govern matrimonial property, measures concerning children and maintenance.

There are two separate limits on applying foreign law. Under Article 2 MÖHUK, Turkish law applies where the relevant foreign-law provisions cannot be established despite all enquiries. Article 5 MÖHUK provides that a foreign provision manifestly contrary to Turkish public policy in its application to the case is not applied, with recourse to Turkish law if necessary. A difference between the foreign rule and Turkish law alone does not establish this exception.

In cases connected with the EU, Regulation No. 1259/2010, known as Rome III, should not be confused with the MÖHUK assessment in Türkiye. It does not create a common substantive divorce law for all EU countries; it determines the law governing divorce and legal separation for authorities in participating Member States. Article 5 permits spouses to choose among specified nationality, habitual residence or forum-law connections; absent choice, Article 8 provides a conditional sequence of connecting factors. The Regulation is not directly substituted for a Turkish court's MÖHUK rules. Nor should matrimonial property, maintenance and custody be resolved on the assumption that they fall within the Regulation's scope.

Do not therefore treat divorce, division of property and child-related requests as resolved by one general choice of law. Prepare marriage documents, nationality changes, dates of moves between countries and existing agreements together. The written assessment following a paid review identifies nationality and residence connections separately for each claim and explains points requiring foreign-law research and further documents. The application of Turkish law to interim measures requested in Türkiye is distinguished from the law governing the merits of divorce. Clarifying this distinction first shows which question each document needs to answer.