Jurisdiction, Applicable Law, Nationality and Habitual Residence in Cross-Border Divorce

International divorce cases raise a fundamental question that does not normally arise in purely domestic family disputes: Which country should deal with the divorce?

In reality, this question consists of two separate legal issues:

1. Which country’s courts have jurisdiction to hear the divorce case?
2. Which country’s substantive divorce law will those courts apply?

These questions should never be confused.

A Turkish court may have jurisdiction over an international divorce but may, in certain circumstances, be required to apply foreign law. Conversely, a court in Germany, France, Italy or another country may hear a divorce involving a Turkish citizen while applying Turkish law, the law of another country, or its own law depending on the relevant conflict-of-laws rules.

This distinction between international jurisdiction and applicable law lies at the heart of international family law.

For internationally mobile families, dual nationals, Turkish citizens living abroad, foreign nationals living in Turkey and couples who have lived in several different countries during their marriage, the concepts of nationality and habitual residence become particularly important.

1. International Jurisdiction and Applicable Law Are Different Questions

The first principle to understand is that the court hearing a divorce does not necessarily apply its own domestic divorce law.

There are therefore two different legal stages.

The first concerns jurisdiction.

A court must first determine whether it is internationally competent to hear the divorce. This is essentially a procedural question.

The second concerns applicable law.

Once jurisdiction has been established, the court must determine which substantive law governs matters such as the grounds for divorce and the legal consequences of the dissolution of the marriage.

These two questions are governed by different rules.

For example, assume that two foreign nationals have been living in Istanbul for several years and their marriage breaks down.

Depending on the circumstances, Turkish courts may have jurisdiction to hear the divorce. However, the fact that the proceedings take place before a Turkish court does not automatically mean that Turkish substantive divorce law applies.

Similarly, a Turkish couple living abroad may be able to divorce before the courts of their country of residence even though Turkish nationality remains highly relevant when determining the law applicable to their divorce.

This is why the statement “I am a Turkish citizen, therefore only Turkish courts can divorce me” is legally incorrect.

Equally incorrect is the assumption that “because the divorce case is filed in Turkey, Turkish law must always apply.”

2. International Jurisdiction of Turkish Courts

The main legislation governing international private law in Turkey is Law No. 5718 on International Private and Procedural Law (MÖHUK).

Article 40 establishes the basic rule for the international jurisdiction of Turkish courts:

the international jurisdiction of Turkish courts is determined by the domestic rules on territorial jurisdiction.

Accordingly, Turkey generally does not operate a completely independent set of jurisdictional rules for every international dispute. Instead, the domestic territorial jurisdiction rules are used to determine whether a Turkish court may exercise international jurisdiction.

For divorce proceedings, Article 168 of the Turkish Civil Code is therefore especially important.

Under Article 168, a divorce or legal separation action may generally be filed before the court of:

• the residence of either spouse; or
• the place where the spouses last lived together for at least six months before the proceedings.

Consequently, where one spouse has his or her legally relevant residence in Turkey, Turkish courts may frequently have international jurisdiction.

The precise jurisdictional analysis, however, must always be performed on the facts of the individual case.

3. Special Jurisdiction for Turkish Citizens Living Abroad

MÖHUK also contains a particularly important provision for Turkish citizens.

Article 41 concerns actions relating to the personal status of Turkish nationals.

Where such proceedings have not been brought or cannot be brought before a foreign court, the action may under the conditions laid down by Article 41 be brought in Turkey.

If an ordinarily competent Turkish court cannot be identified, the provision establishes additional connecting points, ultimately permitting proceedings before the courts of Ankara, Istanbul or Izmir in the circumstances specified by the statute.

This provision can be particularly relevant where both spouses are Turkish citizens but have established their lives abroad and no longer have an ordinary place of residence in Turkey.

However, Article 41 should not be understood as creating an unrestricted right for every Turkish national abroad to commence parallel divorce proceedings in Turkey.

Whether foreign proceedings have already been initiated and whether Article 41’s statutory conditions are satisfied must be examined carefully.

This is particularly important in cases where proceedings are already pending in another country.

4. Which Law Does a Turkish Court Apply to an International Divorce?

Once a Turkish court establishes jurisdiction, the next question is entirely different:

Which country’s divorce law should the Turkish judge apply?

The answer is primarily contained in Article 14 of MÖHUK No. 5718.

Article 14 establishes a hierarchy of connecting factors.

For the grounds and consequences of divorce and legal separation:

First, the common national law of the spouses applies.

Second, if the spouses have different nationalities, the law of their common habitual residence applies.

Third, if there is neither a common nationality nor a common habitual residence, Turkish law applies.

This hierarchy is extremely important.

It means that Turkish private international law traditionally gives considerable weight to nationality, whereas contemporary European private international law generally places greater emphasis on habitual residence.

5. Example: Two Turkish Citizens Living in Germany

Consider a married couple where:

• both spouses are Turkish citizens;
• both have lived in Germany for ten years;
• the marriage breaks down;
• proceedings are brought before a Turkish court that has international jurisdiction.

What law governs the divorce?

Under Article 14 of MÖHUK, the first connecting factor is the spouses’ common national law.

Because both spouses are Turkish citizens, Turkish law will generally govern the grounds and consequences of divorce.

Their long residence in Germany does not replace the common nationality connecting factor because common habitual residence is considered only when the spouses do not have the same nationality.

This illustrates the nationality-oriented structure of Turkish conflict-of-laws rules.

6. Example: Turkish Citizen Married to a German Citizen

The situation changes if one spouse is Turkish and the other German.

Suppose:

• the husband is a Turkish citizen;
• the wife is a German citizen;
• they have been living together in Germany;
• Germany constitutes their common habitual residence.

Because there is no common nationality, Article 14 moves to the second connecting factor: common habitual residence.

In principle, German law may therefore become the applicable law to the divorce before a Turkish court.

If the spouses no longer have a common habitual residence either, the final step in Article 14 becomes relevant and Turkish law applies.

This example demonstrates perhaps the most important principle in international divorce law:

the nationality of one spouse alone does not automatically determine the law applicable to the divorce.

7. What Is “Habitual Residence”?

One of the most important concepts in modern international family law is habitual residence.

Habitual residence should not be confused with:

• nationality,
• registered address,
• temporary accommodation,
• domicile,
• tax residence, or
• the place where a person owns property.

Habitual residence is primarily a factual concept.

It seeks to identify the country in which an individual has established the actual and relatively stable centre of his or her life.

Relevant factors may include:

• duration and continuity of residence;
• family life;
• professional activities;
• children’s schooling;
• social integration;
• housing arrangements;
• the purpose of the stay;
• intention to establish a stable centre of life.

The Court of Justice of the European Union has emphasised that habitual residence requires both a sufficiently stable physical presence and an intention to establish the habitual centre of the person’s interests there.

In the context of EU matrimonial jurisdiction, the Court has also held that a spouse may have several residences but, for these jurisdictional purposes, only one habitual residence at a particular time.

The CJEU’s more recent case law has continued to treat habitual residence as an autonomous concept requiring examination of the factual circumstances rather than simply relying on formal registration.

Accordingly, merely being registered at an address in Turkey, Germany or another country does not necessarily determine habitual residence.

The actual circumstances of the person’s life must be examined.

8. Nationality in Turkish Private International Law

Nationality continues to play a particularly significant role under Turkish private international law.

MÖHUK Article 4 also contains special rules where nationality itself creates difficulties.

For example, where an individual has several nationalities and one of them is Turkish nationality, Turkish nationality is generally taken into account for the purposes of the nationality-based conflict rules.

For persons holding several foreign nationalities without Turkish nationality, the law of the state with which the individual has the closest connection is generally relevant.

MÖHUK also provides special connecting rules for stateless persons and refugees.

Dual nationality can therefore materially alter the applicable-law analysis in international divorce litigation.

9. The European Union Approach: Brussels IIb

Cross-border divorces within the European Union require a different analysis.

Today, jurisdiction in matrimonial matters within the EU framework is primarily governed by Council Regulation (EU) 2019/1111, commonly referred to as the Brussels IIb Regulation.

The Regulation applies to proceedings instituted on or after 1 August 2022 and replaced the earlier Brussels IIa regime for such proceedings.

Article 3 contains several alternative grounds of jurisdiction.

Among other possibilities, jurisdiction may exist in the Member State where:

• the spouses are habitually resident;
• the spouses were last habitually resident, provided one of them still resides there;
• the respondent is habitually resident;
• in a joint application, either spouse is habitually resident;
• the applicant has been habitually resident for the prescribed period; or
• both spouses have the relevant common nationality.

The system therefore places habitual residence at the centre of jurisdictional analysis.

This is a major practical difference from a legal system that relies primarily on citizenship.

10. Jurisdiction Can Exist in More Than One Country

One of the most difficult features of international divorce disputes is that more than one country’s courts may potentially have jurisdiction.

For example, one spouse may be a Turkish citizen living in Germany while the other spouse has moved to Turkey.

Depending on the circumstances:

• Germany may have jurisdiction based on habitual residence;
• Turkey may potentially have jurisdiction under Turkish private international law;
• nationality may create additional connecting factors;
• different proceedings may be capable of being initiated in different jurisdictions.

This creates the practical phenomenon often referred to as forum shopping.

Forum shopping does not necessarily mean unlawful manipulation.

It describes situations where a party has more than one legally available jurisdiction and chooses the forum expected to provide the most favourable procedural or substantive outcome.

In international divorce litigation, the choice of forum may affect:

• the law governing the divorce;
• the speed of proceedings;
• interim measures;
• evidentiary requirements;
• financial consequences;
• maintenance;
• matrimonial property;
• parental responsibility;
• litigation costs;
• recognition and enforcement.

Consequently, deciding where to file first can sometimes become one of the most important strategic decisions in an international divorce.

11. The Rome III Regulation and Applicable Divorce Law in Europe

Jurisdiction within the EU and applicable law should again be distinguished.

While Brussels IIb deals principally with jurisdiction and recognition issues, the applicable law to divorce in participating EU Member States may be governed by Council Regulation (EU) No. 1259/2010, commonly known as the Rome III Regulation.

Rome III represents an important departure from the Turkish approach because it allows spouses, within defined limits, to choose the law applicable to their divorce or legal separation.

Under Article 5, spouses may select certain laws connected with their relationship, including:

• the law of their habitual residence;
• the law of their last habitual residence where one spouse still resides there;
• the national law of either spouse; or
• the law of the forum.

Where the spouses have made no valid choice, Article 8 establishes a hierarchy.

The applicable law is generally:

1. the law of the spouses’ habitual residence when the court is seized;
2. failing that, their last habitual residence under specified conditions;
3. failing that, their common nationality;
4. failing that, the law of the forum.

This hierarchy is almost the reverse of the traditional Turkish approach.

Under Turkish MÖHUK Article 14:

common nationality comes first.

Under Rome III:

current common habitual residence generally comes first where there has been no choice of law.

This difference can produce substantially different results in practice.

12. A Turkish Citizen Can Be Divorced Under Foreign Law

A widespread misconception is that Turkish citizens must always be divorced under Turkish law.

That is not correct.

A Turkish citizen may become subject to foreign divorce law because:

• the proceedings take place abroad;
• the foreign country’s conflict-of-laws system designates its own law;
• the spouses have a common habitual residence abroad;
• a valid choice-of-law arrangement exists under the relevant foreign system; or
• Turkish conflict-of-laws rules themselves designate foreign law.

Likewise, Turkish courts are capable of applying foreign law.

MÖHUK expressly provides that a Turkish judge must apply Turkish conflict-of-laws rules and must apply the foreign law designated by those rules ex officio.

The court may request assistance from the parties in establishing the content of foreign law. If the relevant provisions of foreign law cannot be determined despite all necessary research, Turkish law may ultimately be applied.

The application of foreign law is therefore not exceptional in principle; it is an ordinary consequence of private international law.

13. Public Policy Can Limit the Application of Foreign Law

The fact that conflict-of-laws rules designate foreign law does not mean that every provision of that foreign law will automatically be applied in Turkey.

Article 5 of MÖHUK contains the Turkish public policy — ordre public — exception.

If the result produced by the applicable foreign law in the particular case would be manifestly contrary to Turkish public policy, the relevant foreign provision may be disregarded and Turkish law may be applied where necessary.

The public-policy exception must normally be interpreted narrowly.

Its purpose is not to reject foreign law merely because it differs from Turkish law.

International private law inherently accepts that foreign legal systems may produce different results.

The exception becomes relevant where the concrete result conflicts seriously with fundamental principles of the Turkish legal order.

A comparable safeguard exists in the Rome III system. The Regulation also contains provisions designed to prevent application of rules that would deny equal access to divorce, as well as an ordre public mechanism.

14. Divorce, Matrimonial Property, Maintenance and Child Custody May Be Governed by Different Rules

Another frequent mistake is treating an international divorce as a single legal issue governed entirely by one country’s law.

International family disputes are often legally fragmented.

The law governing the dissolution of the marriage does not necessarily govern:

• matrimonial property;
• ownership of real estate;
• maintenance;
• parental responsibility;
• international child abduction;
• succession;
• recognition of foreign judgments.

Even within MÖHUK, different provisions regulate these subjects.

For example, Article 15 contains separate rules relating to matrimonial property, while other provisions address maintenance and property rights.

The same distinction exists under EU law. Rome III expressly excludes matters such as matrimonial property, parental responsibility and maintenance obligations from its substantive scope.

Consequently, saying that “German law applies to the divorce” does not necessarily mean that German law governs every financial, parental or proprietary issue between the spouses.

Each claim must be classified separately.

15. Child Custody Requires a Separate Jurisdictional Analysis

Where children are involved, international divorce becomes considerably more complex.

The court competent to dissolve the marriage is not necessarily the only court relevant to parental responsibility.

Modern international family law gives exceptional importance to the habitual residence of the child.

Brussels IIb expressly covers parental responsibility as well as matrimonial proceedings, while international child-abduction cases may additionally involve the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Therefore, where parents live in different countries, removing a child to another jurisdiction and immediately commencing divorce proceedings there does not necessarily transfer jurisdiction over custody.

The child’s habitual residence before the relocation can become decisive.

International divorce strategy should therefore never be developed without separately analysing the children’s legal position.

16. Foreign Divorce Judgments Must Also Be Effective in Other Countries

Obtaining a divorce judgment is not always the final step.

A person may be legally divorced in one country but still appear married in the civil status records of another country until the foreign decision is legally recognised there.

This distinction is especially important for Turkish citizens divorced abroad.

Turkish private international law separately regulates the recognition and enforcement of foreign judgments. MÖHUK itself expressly covers not only applicable law and international jurisdiction but also recognition and enforcement of foreign judgments.

Accordingly, before choosing a jurisdiction for divorce, it is prudent to consider not only:

“Can I obtain a divorce there?”

but also:

“Will that divorce be recognised in Turkey and in every other country where I need it to produce legal effects?”

This may affect:

• remarriage;
• population and civil-status records;
• inheritance;
• matrimonial property;
• pension rights;
• immigration status;
• financial proceedings.

Recognition should therefore form part of the jurisdiction strategy from the beginning.

17. Practical Example: Turkish–German International Divorce

Consider the following case.

A Turkish husband and German wife marry in Istanbul.

They later move to Berlin and live there for eight years. Their child is born in Germany.

The marriage breaks down. The husband returns to Istanbul while the wife and child remain in Berlin.

Several different questions immediately arise.

Which court can hear the divorce?

German courts may potentially have jurisdiction based on habitual residence.

Depending on the circumstances and Turkish jurisdictional rules, Turkish courts may also potentially have jurisdiction.

Which law governs the divorce?

If proceedings are heard in Turkey, the spouses do not share a common nationality.

Their common habitual residence therefore becomes highly relevant under Article 14 MÖHUK.

If their common habitual residence at the legally relevant time is Germany, German law may be designated.

If proceedings are brought in a participating EU Member State applying Rome III, its rules must separately be examined.

Which court decides custody?

Because the child remains habitually resident in Germany, the jurisdictional analysis concerning parental responsibility may point strongly towards Germany.

What about an apartment owned in Istanbul?

Property and matrimonial-property questions require an additional choice-of-law analysis and should not automatically be treated as governed by the law applicable to the divorce.

The example demonstrates why international divorce cases cannot safely be analysed simply by asking which spouse is Turkish.

18. Why the Place of Filing Can Be Strategically Important

International divorce frequently involves several legally permissible forums.

Where this occurs, lawyers should compare the consequences of each possible jurisdiction before proceedings are commenced.

Important questions include:

Jurisdiction:
Which courts can legally hear the case?

Applicable law:
Which substantive divorce law would each court apply?

Evidence:
Where are witnesses and documents located?

Interim protection:
Which jurisdiction can quickly issue maintenance, custody or protective measures?

Children:
Where is the child’s habitual residence?

Assets:
In which countries are matrimonial assets located?

Recognition:
Will the resulting judgment be easily recognised abroad?

Parallel proceedings:
Has either spouse already commenced proceedings in another country?

The correct forum is therefore not necessarily the country where the marriage was celebrated, where the wedding certificate was issued or whose nationality one spouse possesses.

The legally appropriate forum is determined through the combined operation of international jurisdiction rules, habitual residence, nationality, procedural rules and recognition mechanisms.

19. Nationality Is Important, but Habitual Residence Is Increasingly Central

International family law has gradually shifted from purely nationality-based connecting factors towards the concept of habitual residence.

The reason is practical.

A person’s nationality may remain unchanged for decades while his or her actual family, professional and social life may be centred entirely in another country.

A Turkish citizen who has lived in France for twenty years may have a far stronger factual connection with France than with Turkey.

Modern jurisdiction rules therefore increasingly seek to identify the legal system genuinely connected with the spouses’ family life.

Nevertheless, Turkish MÖHUK continues to attach considerable importance to common nationality, particularly under Article 14.

This creates one of the most interesting differences between Turkish and European conflict-of-laws systems.

20. Conclusion

International divorce law begins with two separate questions:

Which country has jurisdiction?

and

Which country’s law applies?

They are not the same question.

Under Turkish private international law, the jurisdiction of Turkish courts is principally determined through MÖHUK Articles 40 and 41 together with the relevant domestic territorial jurisdiction rules.

Once jurisdiction has been established, Article 14 MÖHUK provides the fundamental choice-of-law hierarchy for divorce:

common national law → common habitual residence → Turkish law.

Within the European Union, Brussels IIb gives major importance to habitual residence when establishing jurisdiction, while Rome III provides a separate framework for determining the law applicable to divorce in participating Member States, including limited party autonomy in choosing the applicable law.

For this reason, nationality alone rarely provides a complete answer in a cross-border divorce.

The parties’ citizenships, dual nationalities, actual places of residence, previous common habitual residence, children’s habitual residence, location of assets, pending foreign proceedings and the recognition of the eventual judgment must all be considered together.

In international divorce proceedings, where the case is filed can influence not only procedure but also the law ultimately applied and the legal consequences of the divorce.

A jurisdictional analysis should therefore be carried out before proceedings are commenced rather than after competing proceedings have already begun.

For Turkish citizens living abroad, foreign nationals living in Turkey and multinational families with connections to several jurisdictions, obtaining advice on international jurisdiction, applicable law and recognition of foreign divorce judgments at an early stage can prevent jurisdictional conflicts and protect the legal effectiveness of the eventual divorce across borders.

This article provides general information regarding international divorce and Turkish private international law and does not constitute legal advice for any individual case.