T.R. SUPREME COURT
- Legal Department
Basis: 2015/13927
Decision: 2016/5499
Decision Date: 21.03.2016
DIVORCE CASE – WHETHER THE CASE HAS A FOREIGN ELEMENT OR NOT – THE FUNDAMENTALS OF THE BUSINESS NEED TO BE EXAMINED ACCORDING TO TURKISH LAW – THE PROVISION NEEDED TO BE OVERFINED
SUMMARY: In accordance with the paragraph (1) of the article of the Turkish Citizenship Law; “… the obligation of military service and election-election, entry to public duties and exemption of children who are Turkish citizens by birth but who are granted a permit to renounce their citizenship and their immature children registered in the certificate of renunciation, without prejudice to the provisions regarding the national security and public order of the Republic of Turkey. and they will continue to benefit from the rights granted to Turkish citizens, provided that their acquired rights regarding social security are reserved, excluding the right to import household goods. In this case, since the parties are Turkish citizens by birth, it is clear that they will benefit from the rights granted to Turkish citizens in accordance with the mentioned amendment and they will not be in the status of “foreign” in the divorce case. In this case, it is not possible to apply the article of the Law on Private International Law and Procedural Law to this case, since the case does not contain a “foreign element”. Therefore, it is not necessary to investigate the applicable law. In that case, while the merits of the matter should be examined according to Turkish Law, it is against the procedure and the law to make a decision without considering this aspect.
(403 S. K. Art. 20) (5901 S. K. Art. 28) (5718 S. K. Art. 14)
Litigation: The judgment rendered by the local court at the end of the trial between the parties, the date and number of which is shown above, was appealed by the plaintiff woman, the document was read and the necessary consideration was given:
By the court; In the divorce case filed by the plaintiff woman, it was decided to divorce by applying Austrian law on the grounds that both parties had renounced their Turkish citizenship and resided in Austria. From the evidence gathered, it is understood that while the parties were Turkish citizens, they lost their Turkish citizenship since 2003, “with permission to leave” in accordance with Article 20 of Law No. 403, and they are Austrian nationals.
Pursuant to paragraph (1) of article 28 of the Turkish Citizenship Law No. 5901; “… the obligation of military service and election-election, entry to public duties and exemption of children who are Turkish citizens by birth but who are granted a permit to renounce their citizenship and their immature children registered in the certificate of renunciation, without prejudice to the provisions regarding the national security and public order of the Republic of Turkey. and they will continue to benefit from the rights granted to Turkish citizens, provided that their acquired rights regarding social security are reserved, excluding the right to import household goods. In this case, since the parties are Turkish citizens by birth, it is clear that they will benefit from the rights granted to Turkish citizens in accordance with the mentioned amendment and they will not be in the status of “foreign” in the divorce case. In this case, it is not possible to apply Article 14/1 of the Law No. 5718 on Private International Law and Procedural Law to this case, since the case does not contain a “foreign element”. Therefore, it is not necessary to investigate the applicable law. In that case, while the merits of the work should be examined according to Turkish Law, it is against the procedure and the law to make a written decision without considering this aspect.
Result: It was unanimously decided that the appealed judgment be quashed for the above-mentioned reason, that there is no room for examination of other appeals for the time being based on the reason for reversal, that the appeal fee will be returned to the depositor upon request, with the possibility of rectification open within 15 days from the notification of this decision. 21.03.2016
