The Question Of Whether The Case Carries a Foreignness Element - The Merits Of The Work Should Be Examined in Accordance With Turkish Law - AŞIKOĞLU LAW OFFİCE
Aşıkoğlu started his position as the Alanya Public Prosecutor in 2009 and continued until 2013 when he quit his position to initiate his career as an attorney at law.
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The Question Of Whether The Case Carries a Foreignness Element – The Merits Of The Work Should Be Examined in Accordance With Turkish Law

07 Jun The Question Of Whether The Case Carries a Foreignness Element – The Merits Of The Work Should Be Examined in Accordance With Turkish Law

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Supreme Court of the Republic of Turkey

2.Legal Department
Basis: 2015/13927
Decision: 2016/5499
Decision Date: 21.03.2016

DIVORCE CASE – WHETHER THE CASE HAS A FOREIGN ELEMENT – THE NEED TO EXAMINE THE MERITS OF THE WORK IN ACCORDANCE WITH TURKISH LAW – THE NEED TO BREAK THE PROVISION

Abstract: article of the law on Turkish citizenship (1.) according to the paragraph;”..in addition to the provisions on the national security and Public Order of the Republic of Turkey, the obligation to do military service and the right to elect-elect, to enter public duties and to import exempt vehicles and household goods, the acquired rights related to Social Security will continue to benefit from the rights granted to Turkish citizens..” provision has been linked to. In this case, since the parties are Turkish citizens by birth, it is clear that they will enjoy the rights granted to Turkish citizens in accordance with the mentioned Amendment and will not have the status of “‘foreign” in the divorce case. In this case, since the case does not have a ‘foreign element”, it is not possible to apply the article of the law on International Private Law and Procedural Law to this case. Therefore, it is not necessary to investigate the competent law to be applied. In that case, while the merits of the work should be examined in accordance with Turkish law, it is against the procedure and the law to make a decision without taking this direction.

(403 P. K. m. 20) (5901 P. K. m. 28) (5718 S. K. m. 14)

Case: at the end of the reasoning of the case between the parties, the decision given by the Local Court, the date and number shown above, was appealed by the plaintiff woman, the documents were read and discussed and considered as necessary:

In the divorce case filed by the plaintiff woman, it was decided by the court to divorce them in accordance with Austrian law on the grounds that both parties had left their Turkish citizenship and resided in Austria. From the evidence collected, the parties are Turkish citizens, while the 20 of the Law No. 403. according to the article “with permission to leave”, it is understood that they have lost their Turkish citizenship since 2003 and are Austrian citizens.

Article 28 of the Turkish Citizenship Law No. 5901 (1.); “..in addition to the provisions on the national security and Public Order of the Republic of Turkey, the obligation to do military service and the right to elect-elect, to enter public duties and to import exempt vehicles and household goods, the acquired rights related to Social Security will continue to benefit from the rights granted to Turkish citizens..” provision has been linked to. In this case, since the parties are Turkish citizens by birth, it is clear that they will enjoy the rights granted to Turkish citizens in accordance with the mentioned Amendment and will not have the status of “‘foreign” in the divorce case. In this case, since the case does not have a ‘foreign element”, it is not possible to apply Article 14/1 of the Law No. 5718 on International Private Law and Procedural Law to this case. Therefore, it is not necessary to investigate the competent law to be applied. In that case, while the merits of the work should be examined in accordance with Turkish law, it is against the procedure and the law to make a written decision without observing this direction.

Conclusion: it was unanimously decided that the Appellate provision was overturned for the reason shown above, that there was no place for other appeals to be examined for now according to the reason for the overturning, that the advance costs of the appeal should be returned to the Depositor on request, within 15 days of the notification of this decision, the way of correcting the decision was open. 21.03.2016

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