Family Law 2024 Comparisons

According to the Turkish Civil Code (TCC), there are two main types of divorces proceedings, namely contested divorce and uncontested divorce proceedings. 

Uncontested Divorce (Article 166/3, TCC)

Uncontested divorce proceedings require both parties to agree to end the marriage union and for the marriage union to have lasted at least one year. 

In this case, the parties decide on the matters of divorce and its consequences, and if the agreement reached is in accordance with the law, the agreement is to be approved by the judge. In order for the case to result in acceptance, the parties must have reached an agreement on divorce, custody, the personal relationship to be established with the child by the non-custodial party, and alimony and compensation, if requested.

While the judge examines the reasons for divorce in contested proceedings, in uncontested proceedings, the judge will only determine whether the parties have agreed on the divorce and other mandatory issues. For this reason, uncontested divorce cases can be concluded in a very short time if the case has been filed in accordance with the conditions. In an uncontested divorce, the court sets a hearing date that requires the attendance of both parties to the hearing. It announces the divorce decision if all conditions have been fulfilled.

Contested Divorce 

The grounds for contested divorce are categorised under two main headings: “General Grounds for Divorce” and “Special Grounds for Divorce”.

Divorce must be based on a specific ground and the judgment of the court. The grounds for divorce are limited, as specified under Articles 161 to 166 of the TCC. If one ground can be established, this is sufficient to file for divorce. Same-sex marriages or partnerships are not allowed or accepted in Türkiye and therefore divorce is only possible for mixed-sex married couples.

The general grounds for divorce include:

• the breakdown of marriage;
• divorce based on separation; and
• uncontested divorce.

The special grounds for divorce are based on concrete facts and include:

• mental illness;
• adultery;
• cruelty; 
• desertion for a period exceeding six months;
• criminal conviction;
• addiction;
• attempt on life, misbehaviour or extreme indignity; and
• delinquency or living a dishonourable life. 

According to the TCC, marriage is considered the union between a male and female. Thus, the TCC does not recognise same sex partners or any sort of “civil partnership”.

Divorce Process

To commence the divorce process, spouses are required to file a lawsuit at the competent court and start the legal proceedings (Article 161/1, TCC)

After filing for divorce, the procedure is as follows.

• The court firstly prepares the preliminary proceedings report and serves the respondent with the lawsuit petition.
• The respondent submits a reply petition within two weeks of the notification; however, this timeframe can be extended up to one month if an extension is requested from the court by the respondent.
• The claimant submits a reply petition to that of the respondent, again within two weeks of the notification and the timeframe can be extended up to one month if requested.
• The respondent submits a second reply petition, again within two weeks of the notification and the timeframe can be extended up to one month if requested.
• Upon the filing of the second reply petition of the respondent, the petition stage is considered to be completed and the court decides on a hearing date and invites the parties (their counsels, if there is any) to evaluate the grounds of the case and determine if there is any possibility of an agreement. 
• After the hearing, the court examines the grounds, reasons and evidence. Most courts conduct two to three hearings a year, and divorce proceedings can take two to three years. The court also evaluates child custody, even if this is not requested, and temporarily determines the child support, custody and alimony during the proceedings. 
• After a judgment is issued and served on the parties, the parties can appeal before the Regional Court of Justice within two weeks of the notification. The first appeal process will take one to two years and parties can make a further appeal to the Supreme Court, again within two weeks of the serving of the detailed judgment by the Regional Court of Justice. The appeal process takes around one year.
• In an uncontested divorce, the court sets a hearing date and requires the presence of both parties at the hearing. It announces the divorce decision if all the conditions are fulfilled.
• The court must reach a verdict by inspecting reasons and other matters such as custody, alimony, personal relationships with the common children, etc. Most of these issues pertain to public order according to Turkish law and jurisprudence, thus the courts are required to make all necessary inspections and investigations.

Rules for Service of Divorce Proceedings

According to Turkish law and regulations, all parties (or their respective counsels) must be notified of the hearing date and must be granted time to prepare their rebuttals and statements to the case in order to complete the petition stage outlined above. 

Under the Notification Law, service of divorce, financial and children’s proceedings are affected through the Post Office Department. A notification is sent to the respondent’s last known address or the address provided by the claimant. If it is not successfully delivered, the respondent’s registered address will be used. 

Türkiye is a party to the HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (Hague Service Convention). Service in other countries takes place under the Notification Law and the Notification Rules and is affected through the authorised institution of the foreign country (Article 25, Notification Law). A translation of court and rogatory documents must be included in the notification. The payment of translation and service fees are required to be fulfilled and, to serve the documents abroad, the translation and all the court documents required are sent to Ministry of Justice by that relevant court to be send abroad.

If the parties have a counsel in the case, all the servings will be through the counsels located in Türkiye. 

Religious Marriages and Divorces

Although religious marriages are common in some areas of Türkiye, these types of marriages are not accepted as “legally binding” marriages according to the TCC and Turkish Cassation Court’s jurisprudence. Thus, any marriage made unofficial but according to religious means and rules are not officially recognised by Turkish law. After the marriage ceremony is performed, the marriage officer provides a marriage certificate to the spouses. The religious ceremony of the marriage cannot be performed without presenting a marriage certificate. The validity of the marriage does not depend on whether a religious ceremony has been performed (Article 143, TCC).

The same can be also said for divorces. As there is no legally binding marriage, no official divorce proceedings may result from any type of religious marriage.

Other than divorce, there are certain actions/situations in which a marriage may end without a lawsuit, namely the death of a spouse and disappearance/absence of a spouse.

• The death of a spouse: in the event of the death of one of the spouses, the marriage is automatically considered to be dissolved as one of the parties to the marriage is no longer alive.
• Disappearance/absence of a spouse: in the situation where a person disappears in imminent danger of death or has not been heard from for a long time, as absence is a presumption of death, the marriage may be dissolved. In order for the decision of absenteeism to be made, a decision of absenteeism is made upon the application of persons whose rights depend on the death of the absent person. Ultimately, the decision of absence means that the person’s life is legally terminated.

Sex Change of a Spouse

If one of the spouses changes their gender, one of the fundamental elements of the marriage union, namely the rule that marriage takes place between different sexes, is violated. A legal transaction that is missing one of its constituent elements is null and void.

A Null and Void Marriage

In these situations, the marriage is considered to be void and the marriage is considered to have never been legally binding in the first place. 

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

• Non-existence: the marriage will not be considered to exist if the founding elements of marriage do not exist. For example, same-sex marriages, a marriage without a marriage registrar, a marriage without the attendance of one of the parties, or a marriage by proxy are non-existent marriages. 
• Invalidity: the following are examples of an invalid marriage:

1. one of the parties is already married and marries another person, making the second marriage invalid; 
2. one of the parties is unconscious during the ceremony;
3. one of the parties is suffering from a mental illness;
4. the parties are related and forbidden to marry;
5. one of the parties married as a result of the other’s fraudulent behaviour; and
6. one of the parties is mistaken about the other party’s identity or qualifications.

Judicial Separation

The grounds for judicial separation are the same as for divorce. 

When a judicial separation is granted, the spouses’ common life will cease and the spouses can choose to live in separate domiciles.

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. 

A judicial separation starts with a court judgment and lasts between one and three years. On the expiration of the court-specified 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.

As discussed in 1.1 Grounds, Timeline, Service and Process, according to Turkish law, there are two types of divorce proceedings: contested divorce proceedings and uncontested divorce proceedings.

Contested Divorce Proceedings

The competent court is the place of residence of one of the spouses or the place where they have been living together for the last six months before the lawsuit (Article 168, TCC)

In this sense, the residential address and/or place where the couple have been living for the last six months may differ. In this case, the courts in both provinces may have authority. The claimant spouse will have a choice as to where the lawsuit shall be filed.

Uncontested Divorce Proceedings

Parties are able to file the lawsuit at any Turkish court, as the above-mentioned article does not provide that a specific court has authority and the parties are not expected to have any objections regarding jurisdiction.

As stated in detail in 1.1 Grounds, Timeline, Service and Process, according to the TCC, marriage is considered as the union between a male and female. Thus, the TCC does not recognise same sex partners or any sort of “civil partnership”.

According to Article 40 of Law No 5718 on Private International Procedure Law (PIPL), the international jurisdiction of the Turkish courts shall be determined by domestic jurisdiction rules, as explained for the divorce cases above.

Also, according to Article 41 of the PIPL, a Turkish national’s divorce case can be filed in Türkiye and Turkish courts can hear the case: “If lawsuits concerning the personal status of Turkish citizens who do not have a domicile in Turkey are not or cannot be filed in the foreign state where they have their domicile and if there is no competent court in Turkey, the lawsuit shall be filed at the place of such citizen’s habitual residence; or if the person does not have a habitual residence in Turkey, it shall be filed at their last domicile in Turkey. In the absence of a last domicile in Turkey, it shall be filed with the courts of Istanbul, Ankara or Izmir.”

Another point to mention regarding the jurisdiction of Turkish courts is that the PIPL dictates the jurisprudence on how disputes which contain a foreign element must be decided.

According to the Article 14 of the PIPL, when considering which law shall be applied to a divorce case, the binding rules (how the law shall be determined) must be followed. These rules do not have an “alternative” relation to each other, if the upper-level binding rule cannot be applied, the second binding rule must be applied. They are as follows:

• the spouses’ common national law;
• the spouses’ common habitual residence; and
• Turkish law (if both binding rules cannot be applied).

Parties may object to the jurisdiction. These objections may be made by either: (i) objecting to the specific court in Türkiye, but not to the Turkish court’s jurisdiction, or (ii) objecting to the Turkish court’s jurisdiction.

If a party objects to the jurisdiction of the Turkish court by stating that there is a pending case filed in foreign courts, the Turkish court will solve this objection first and then continue with the process. If a party objects not to the international jurisdiction of Turkish courts but to the place of the Turkish court, the Turkish court will decide if the objection is right and will send the file to the relevant place in Türkiye. However, it should be noted that the preliminary objection must be made by way of the response petition and the authorised court that should hear the case must be stated directly and clearly.

There is no consensus in the doctrine and jurisprudence of the Court of Cassation as to whether a court in Turkey can make a pending case of a foreign court’s process, the outcome of which may affect its judgment, as a matter of a pending matter. This situation has not been clarified under the Code of Civil Procedure (Law No 6100).

In the event that the proceedings are pending before a foreign court, the Turkish court must dismiss the case on the grounds of international pendency (lis pendens) if the same case is filed before the Turkish courts. 

A foreign judgment without recognition and enforcement in Türkiye cannot be subject to a judgment by the Turkish courts. If a Turkish court finds a pending foreign court judgment can be recognised and enforced, it will order a prejudicial question. A prejudicial question will stay the Turkish proceedings until the foreign court gives its decision; however, it should be noted that there are many practices that state to the contrary and accept that the Turkish courts have the jurisdiction to hear the case, especially with Turkish nationals.

As discussed in 1.2 Choice of Jurisdiction, the Turkish courts have jurisdiction based on one of the spouse’s place of residence in Türkiye or the court where they have resided together for at least for six months before the application for divorce. The alimony cases can be filed in both of the residences of the parties.

Compensation in divorce refers to the amount to be paid to the other spouse by the spouse who is more at fault. In an uncontested divorce case, the parties can mutually determine how much financial and moral compensation will be paid by whom and to whom. 

If the special jurisdiction clause is not present in a family case, the case can be filed in the defendant’s domicile, as this is the general principle according to Article 6 of TCC. However, it should be noted that if the estate is subjected to a division of property case, the place of that estate will have certain jurisdiction. 

The grounds for divorce must be proven in order for a judgment to be rendered. It is not possible for a judgment on the divorce, compensation and alimony to be made without consideration of the fault. The judge will determine the parties’ fault in the divorce. The fault must be determined in order to rule on the pecuniary and non-pecuniary damages and the alimony in favour of the less-faulty party. It should be noted that the parties always have right to file for a consensual divorce without the evaluation of fault if all the provisions are met (Article 166(3), TCC). 

Pecuniary and non-pecuniary damages are regulated under Article 174 of TCC: “The party at less fault or with no fault whose current or expected interests are damaged by divorce can demand pecuniary damages of an appropriate amount of the party at fault. The party whose personal rights are attacked due to events leading to divorce can demand an appropriate amount of money to be paid in the form of non-pecuniary damages.” 

In summary, in order to request pecuniary and non-pecuniary damages: 

• the current or expected benefits of the spouse who requests pecuniary damages shall be damaged because of the divorce;
• the spouse who asks for pecuniary damage shall not be at fault or shall have less fault; and
•  the other spouse shall be at fault.

The court shall review the financial positions and the faults of the parties whilst making a decision on the pecuniary and non-pecuniary damages. In addition to these criteria, in order for the court to decide on non-pecuniary damages, the court also examines whether the personal rights of a spouse who asks for non-pecuniary damages have been violated because of the events that led to divorce.

The financial claims will be heard during the divorce proceedings and the case concerning the division of the matrimonial properties can only be heard after the divorce is finalised. According to Article 178 of TCC, the lawsuit rights arising from the termination of the marriage due to divorce become statute-barred after one year has passed since the divorce decision became final. However, the parties have the right to ask for the amount of child support and/or alimony to be increased and/or decreased, depending on the current situation.

See 2.1 Choice of Jurisdiction.

Turkish courts treat the division of assets as a separate legal proceeding from a divorce case. These two cases may not be merged, and if both proceedings are initiated at the same time, the divorce shall be treated as a “preliminary issue” to the division of assets. In an uncontested divorce, the division of property can be decided according to the free will and desire of the parties.

The current TCC came into effect on 1 January 2002. The legal rules governing the division of property for the period before 1 January 2002 are completely different from the legal rules governing the period after 1 January 2002. Thus, the courts must consider two different approaches, as set out below.

• Property purchased before 1 January 2002 is considered to belong to the person in whose name it is registered. This is because the Civil Code in force before 1 January 2002 recognised the legal separation of property regime between spouses.
• The current TCC, which entered into force on 1 January 2002, accepted the “Regime of Participation in Acquired Property” as the legal property regime based on the principle that the acquired property will be shared equally. 

The basic rule for both periods is that property acquired before the marriage is considered the personal property of the person in whose name it is registered and is not included in the calculation of property division in a divorce.

Although the rule on the division of the property acquired during the marriage is to divide the property in half, there are some principles that change the ratio, as set out below.

• When dividing property in a divorce, first of all, each spouse takes back their “personal property”. If one of the spouses claims that any property is personal property, they have to prove this claim. 
• After each spouse receives their personal property, the “acquired property” obtained during the marriage is divided in half.
• Spouses may agree on what constitutes personal property by contract during the marriage. Thus, some goods may be considered “personal property” and excluded from the process. 

In property division cases, one of the parties may request an interim injunction in order to secure the receivable that they may obtain. The aim here is to prevent the other party from absconding while the divorce case is ongoing. Even if the value of the goods for which an interim injunction is requested is higher than the value of the receivable requested in the lawsuit, the court may issue an interim injunction. The court should ensure that the defendant will not be victimised due to the injunction being enforced, and that the acquisition of the right may be significantly difficult or completely impossible if the injunction is requested are transferred during the lawsuit, or that there may be an inconvenience or serious damage due to delay.

Courts are obliged to try to determine any and all assets related to the case. They may submit writs to the relevant directorates and/or third parties to try and assess what the significant party owns. 

Further, the claimant spouse may also disclose any and all assets they believe the counterparty owns. Parties are obliged to state what they own in division of assets cases, however the claimant spouse, and especially the courts, are also obliged to try and determine these assets.

The courts must deem which property and goods are to be considered to be subject to the proceedings. 

As stated, “personal properties” shall not be subject to the proceedings. The court may deem the following property/goods to be personal property:

• assets belonging to one of the spouses at the beginning of the property regime or acquired by one of the spouses through inheritance or any other form of gratuitous acquisition;
• spouses’ claims for non-pecuniary damages from third parties;
• items that can be reserved for the sole personal use of one of the spouses; and
• values that replace the above personal property. 

There are four matrimonial property regimes in Turkish jurisdiction:

• the participation in acquired property regime;
• the separate property regime;
• the shared separate property regime; and
• the communal property regime.

The legal marital property system is the participation in acquired property regime. 

If the spouses do not want to be subject to the legal marital property regime, they can choose to apply one of the other three regimes in a marital agreement (Article 202, TCC) or at the time of the marriage application (Article 205, TCC).

If the spouses choose a separate property regime with a pre-nuptial agreement under Article 242 of the TCC, each spouse can protect their own property usufruct, management and rights within legal limits. In this type of regime, each spouse is liable for their own debts in relation to their own property and, in a divorce, the spouses will not have any claim to each other’s property.

Trusts are not recognised in Turkish jurisdiction.

“Spousal maintenance” is part of the financial proceedings in divorce cases. According to Article 175 of the TCC, in order for it be awarded, the condition of falling into poverty as a result of divorce must be met by the relevant spouse. According to the Cassation Court’s General Assembly, those who do not have enough income to cover the expenditures deemed compulsory and necessary for the development of the individual’s material existence, such as “food, clothing, shelter, health, transportation, culture, education”, should be considered to be eligible for spousal maintenance. These conditions must be met throughout the period the alimony shall be paid.

The courts may deem it appropriate for spousal maintenance to be paid as a result of the divorce, or during the proceedings as an interim alimony if necessary.

The counterparty may object to the maintenance/alimony (interim or final) if the necessary conditions change (the recipient may get married, they may have higher living standards after a while, etc).

The spousal maintenance can be requested by way of a separate application, if that party did not waive this claim.

It is possible to apply and obtain interim maintenance/alimony during the divorce proceedings if the above-mentioned conditions are met. However, the requesting party must be able to show that the necessary conditions are present and that, if not for the interim maintenance/alimony, they would fall into poverty. The necessary conditions must be met during the proceeding.

The counterparty may always object to the interim decision if the necessary conditions are not met or change during the proceedings.

The courts must keep in mind whether the conditions mentioned above are present. The court must be certain that if not for this alimony, the counterparty would not be able to sustain a comfortable “material existence”. 

The court must also consider the alimony-paying party’s financial status. The party deemed to pay alimony/maintenance should not fall into poverty or go through hardship as a result of their obligation to pay alimony. However, Turkish courts do not have a fixed formula and decide on the evidence provided and collected ex-officio in light of the social and economic situation of the parties.

According to Turkish law and regulations, prenuptial/postnuptial agreements are essentially contracts related to the division of assets. Other issues, such as alimony, custody and financial obligations, are deemed to be related to public order. Parties may not determine these issues freely, and even in uncontested divorce proceedings, the court must find the agreements related to these issues to be in accordance with public order. 

A “prenuptial agreement” can be the basis of an uncontested divorce; however, the court has the final authority on which article or the agreement as a whole is suitable. The court issues a verdict in which the agreement’s articles are set as the provisions of the divorce. 

Thus, prenuptial and postnuptial agreements only enable the spouses/parties to be able to freely determine the division of assets. Other issues are deemed to be in accordance with public order, and thus must be accepted by a court.

The spouses can expressly choose the law of their habitual residence or national law at the time of the marriage to govern their matrimonial property, if the case includes a foreign element. Where this choice has not been made, the courts will apply the common national law of the spouses at the time of marriage, and in the absence of a common national law, the internal law of their habitual residence at the time of marriage will be applied. If the spouses had no habitual residence at the time of marriage, Turkish law will apply. 

The liquidation of immovable property is governed by the law of the state in which it is located. If the spouses acquire a new common nationality on marriage, the laws of their new nationality may govern its liquidation, if the rights of third parties are reserved (Article 15, PIPL).

If foreign spouses choose one of the Turkish marital property regimes, the choice of law will apply to this marital property regime. If a selection is not made, the law of their habitual residence will apply, and if they have no habitual residence, Turkish law will apply. If the provisions of the foreign law to be applied in a certain case are clearly contrary to Turkish public order, it will not be applied. When it is deemed necessary, Turkish law will apply (Article 5, PIPL).

In the absence of any pre- or post-nuptial agreements, the legal matrimonial property regime is the participation in acquired assets (see 2.3 Division of Assets). If a pre- or post-nuptial agreement is found to be valid, the court will uphold the agreement. If not, the court will continue with its own evaluation.

Cohabitation is not recognised under Turkish law; thus, it is not accepted as a legally binding “partnership”. Thus, provisions regarding the division of assets are not applicable to these types of unions.

Turkish legislation does, however, cover children being born out of wedlock. The sole custody of the child/children born out of wedlock is awarded to the mother. Other legal issues related to children (eg, child support and personal relationships with children) are a public order matter; thus, a court order is required for these issues.

However, if the case involves a foreign element, Article 17 of the PIPL provides as follows: “Effects of parentage are subject to law which has governed the establishment. If there is a common national law of the father, mother and child, that law shall govern if not, common habitual residence law shall govern the effects of parentage.”

Therefore, if the case involves a foreign element and if the case should be held under that foreign code, the Turkish Court can consider the applicable foreign law however it will be always limited to the public order in Türkiye.

The parties are obligated to comply with Turkish court orders. If a party fails to comply with a financial order (compensation, alimony payment, etc), the recipient party may start enforcement proceedings to ensure the claim is received. The process for collection of the receivable can be started before the Execution Office and the counterparty are served the order for payment; the counterparty will be given seven days in which to pay. If not, the seizure process can be filed. If this execution file does not depend on a court order, the respondent will have right to object to the file and stop the process where the creditor can apply for the removal of the objection case. It should be noted that, the financial claims ordered as part of the divorce must be finalised in order for them to be enforced through the Execution Office.

Considering that alimony arises from “public order”, the party that is obliged to pay alimony may also be subject to compulsory detention if they fail to make the necessary payments to the recipient.

Foreign court orders related to alimony/financial proceeding payments must first be enforced and recognised by a Turkish court before being enforceable in Turkey. 

The competent Turkish court will decide on enforcement subject to the following conditions (Article 54, PIPL).

• The judgment must have been given on matters that do not fall within the exclusive jurisdiction of Turkish courts. 
• If the defendant objects, the decision is not issued by a state court that gives authority to them even though they have no real relationship to the subject of the case or the parties.
• The court decree must not be openly contrary to public order. 
• The right of defence of the respondent spouse must not have been seriously violated. A person against whom enforcement is sought must have been duly summoned and represented.

It should be noted that the enforcement of the foreign decision will be limited to the public order in Türkiye.

The media and press are able to report on legal proceedings which concern the public interest. Although, under normal circumstances, media and press officials do not have the right to inspect legal documents, they may report on their findings which were obtained via legal means.

Hearings are open to everyone (Article 141, Constitution). Hearings and the announcement of the decision are made in public (Article 28, Turkish Code of Civil Procedure). However, the court can decide to hold hearings totally or partially in private if public morality and public protection makes it essential to do so. The court can decide this on its own or at the request of one of the parties. 

Parties may request for the proceedings to continue under anonymity from the press and public. However, all information and data must be accessible to the judge and relevant court personnel.

A party must request for the proceedings to be held in anonymity from the court, which must be accepted in order for the proceedings to continue anonymously. The court must deem the anonymity relevant to the situation for the proceedings to be continued in secrecy. Thus, this is not possible in each and every case.

Alternative Dispute Resolution (ADR) is an alternative way for parties to be able to resolve disputes. According to the Turkish law, there are two types of ADR proceedings.

Mandatory ADR

In these proceedings, parties are required by law to first try and resolve the issue through ADR. The ADR process is a mandatory requirement before starting any type of lawsuit. However, parties are not obligated to reach a settlement, but are required to attend the process.

Voluntary ADR

These proceedings are not required to be completed before starting legal proceedings, and parties may always apply for voluntary ADR. However, not all subjects can be brought before the ADR proceedings. These subjects include:

• criminal cases;
• cases for correction or amendment of civil registration;
• child custody;
• disputes involving allegations of domestic violence;
• full judgment action and annulment action under the jurisdiction of administrative jurisdiction;
• disputes arising from tax law; and
• all determination cases arising from labour law, such as determination of service or work accidents, etc.

Parties may not reach a settlement regarding these subjects and any ADR proceedings related to them are considered void, as these are mostly matters of public order.

ADR Methods

Subjects which have a mandatory ADR process must first complete this process before filing a lawsuit or any other proceeding. Each respective piece of legislation and regulation states if the ADR process is mandatory.

Not complying with a mandatory ADR process will result in the court dismissing the case on procedural grounds, as a mandatory step required in the law has not been fulfilled.

If agreements are made during the ADR process, they are considered to be “verdicts”, which bind both parties and are obligated to be fulfilled by both parties. 

The ADR report, procured after the ADR process, is considered to have the same qualification as a court order/verdict. Thus, it is enforceable by both parties against the non-complying party through the enforcement process.

In Türkiye, all family issues are related to public order. Therefore, family disputes are not eligible for mediation. ADR for family issues is not mandatory for cases submitted to court.

The PIPL does not contain specific jurisdictions for proceedings related to children, rather it sets out the jurisdiction in accordance with the issue/dispute at hand. Different types of “binding rules” may be applied in different types of disputes. In this regard, it is important to determine what the proceeding will be before determining the Turkish jurisdiction and applicable law in accordance with the PIPL. 

Once the applicable law has been established according to the PIPL, the jurisdiction must be determined in accordance with the PIPL and TCC, according to Article 40 of PIPL. The case cannot be filed against the child directly but should be filed against the custodian of the child.

There is no set rule for determining jurisdiction in children matters in the TCC, however, cases can be filed at the domicile of the child.

Custody and Visitation Rights

Both parents may apply to either change the custody (which includes the right to determine the child’s living arrangement) and personal visitation rights as long as there is not a “preliminary issue” which would prevent the court from reaching a verdict.

As both issues closely involve the best interests of the child and are of public order, courts are bound to make any and all necessary inspections and research into the issues. The courts will reach a verdict based on the best interest of the child, and are not bound to the parents’ requests. The parties cannot reach an agreement on custody outside of the court but, if they do, the court can consider this with the other evidence collected in the file. The cases related to children cannot be decided upon the acceptance of the case (this is only possible in uncontested divorce cases). 

Requests for changes to visitation rights can be filed before the court, and again, if the court believes this will be beneficial for the child, a decision can be ordered.

Following the breakdown of a relationship or marriage, the courts will decide which parent should have custody by determining what would be in the best interest of the child. The courts must take many aspects into consideration, such as the parents’ living conditions, personalities, the child’s age, lifestyles of the parents, the expert opinion that will be provided by the court expert and, if the child is of an age to be able to understand the proceedings, even the child’s opinion must be taken into consideration (eight years is the age of cognition according to the practices of the Supreme Court). 

Although according to Turkish law, joint custody is not permitted, recent Court of Cassation decisions have stated that joint custody may be granted in accordance with the present law and regulations. 

As custody closely involves the child’s best interest and is of public order, the court has the final say in matters relating to a child’s living and contact arrangements and is not bound by the parents’ requests and statements. However, this does not grant the court authority to reach a verdict freely, as it must base its decision on facts and evidence present in the file. It should be noted that, the court considers the right of the custodial parent and pays attention not to violate the right of the custodial parent. 

Child Maintenance

Child maintenance is defined as “food expenses, clothing expenses, shelter expenses, health expenses, recreation expenses, education and training expenses, allowance expenses and transportation expenses”, according to the Court of Cassation. They must be closely related to only the child and not the parent who has custody.

These statements and parameters must be inspected in each case individually and must take into account the norms of other legislation and regulations. It should be noted that the court can order child support, even if it is not requested.

Each case must be evaluated according to the set parameters and there is no definitive formula in which child support is calculated. Factors include the non-custodial parent’s economic situation, the child’s needs as stated by the Court of Cassation’s many practices and other factors that the court may deem necessary.

While the Court of Cassation has set out the basic expenses that should be considered, the court must keep in mind any other issues and/or aspects relevant to the best interest of the child when determining the amount.

The non-custodial parent is not forbidden from paying more child maintenance than agreed upon, and although the set maintenance amount is obligated to be paid in full, parties may compromise on this issue without involving a court. 

The parties can agree on an amount but if this is agreed out of court or if not recoded by and/or through the court, the enforcement of the out-of-court agreement will not be possible.

The courts may apply an interim injunction regarding child maintenance during proceedings, and, as stated above, can and will order alimony/maintenance to be paid to the custodial parent in accordance with the best interest of the child. Thus, courts can make orders in child maintenance if deemed necessary for the wellbeing of the child. 

Interim maintenance orders may only extend for the duration of the proceedings, while non-injunction maintenances will extend until the child is 18. The only exception to this period is if the child continues their education after reaching the age of 18, in which case both parents are obligated to support the child as much as their economic well-being allows.

Although child maintenance is related to the child, this obligation is fulfilled by paying said amount to the custodial parent, and the right to request child maintenance is that of the custodial parent, not the child. It is accepted that child maintenance can be received by the custodial parent “in the name of” the child. However, if the child wishes to continue to receive support after the age of 18, the child can file a financial support case against the parent. 

According to Turkish law and the Supreme Court practices, the custodial parent has the right to decide what is in the best interest of the child. However, both according to the doctrine and the Court of Cassation, the parties should actively co-operate with each other in matters concerning the best interests of the child.

The non-custodial parent has the right to file a lawsuit and request the intervention of the court if the custodial parent disregards the best interest of the child. If the other parent is of the opinion that the custodial parent is violating the right of the child, a change of custody can be requested.

The courts take parental alienation seriously, and will allow the non-custodial parent to see the child if the other parent has refused to comply with the terms of the custody agreement. Mostly, courts will either order interim injunctions or set specific dates when the non-custodial parent may see the child.

If these orders are not fulfilled willingly by the parties, the alienated parent may enforce this decision through law-enforcement officers and relevant directorates which specialise in these types of situations.

The most important factor to be considered is the best interest of the child. If the alienated parent poses a threat to the well-being of the child, a court may not grant an order to establish contact with said parent.

Children who are considered to be able to understand the proceedings may give evidence and should be heard by the courts before reaching a verdict according to Turkish law, international conventions and Supreme Court practices, as the statement and will of the child is very important. The child at the age of eight years old is considered to be at the level of cognition and can express their opinion to the court. It should be noted that, in cases involving children, the court receives an expert report carried by the pedagogue appointed by the court working as a court officer. Following meetings with both parents and separate meetings with the child, the expert provides a report containing their opinion. The Turkish courts can hear the child at the hearing in the presence of the pedagogue, if the court wishes to obtain the opinion of the child.

Courts take the statement of the child very seriously, and take it into consideration when reaching a verdict. Both the jurisprudence of international conventions and Court of Cassation are very important in this matter. However, the court is not obliged to reach a verdict reflects the statement of the child if it believes the statement is not in line with their best interest.

See 2.9 ADR.

Agreements made during the ADR process are considered to be “verdicts”, which bind both parties and are obligated to be fulfilled by both parties. 

The ADR report, procured after the ADR process, is considered to have the same qualification as a court order/verdict. Thus, it is enforceable by both parties against the non-complying party through enforcement process. However, because family issues are not included in the mandatory mediation process as yet, the agreement of the parties should be approved and/or recorded by the court to make it enforceable in the case of non-compliance.

In addition to the information provided at 2.8 Media Access and Transparency, it should be noted that where a child is involved in a case and the judge decides to hear the opinion of the child at the hearing, the parents will be asked to leave the court; the counsels of the parties can also be asked to leave the court room, if the judge so decides. However, it should be noted that the opinion of the child will be typed in the minutes of the hearing where the parties and the counsels will be allowed to read it during the continuation of the hearing. 

The parties/parents of the child may request for the hearings and proceedings to be anonymised. The respective party/parent must submit the request to the court for the proceedings to be anonymised if this has not already been done by the court ex officio. In the criminal cases, the names of the child are not shared directly.