Note: translated from Polish.
Divorce is one of the most important institutions of family law, consisting in the formal termination of marriage by the court at the request of one or both spouses.
Undoubtedly, divorce between citizens of different countries, in this case between citizens of Polish and Turkey, can be a challenge, but once you are familiar with the basic procedures, the process can go smoothly and smoothly.
The termination of a marriage with a Turkish citizen is regulated by the Turkish Civil Code, as well as the Law on International Private
and Procedural Law (MÖHUK) and the Law – Private International Law.
It is worth noting that divorce can be carried out by agreement of the party or in an adversarial procedure.
An agreement between the parties in the context of divorce is feasible if the parties meet certain conditions:
- The parties must file for divorce or one of the parties agree to the divorce from the other party,
- The court must confirm that the parties’ decision is conscious and voluntary,
- The marriage must last at least 1 year,
- An agreement between the parties must be reached at the level of property matters and matters related to their children.
The situation becomes a bit more complicated when one of the parties does not agree to the divorce or there are disputes about the terms of the divorce, you should file a petition for divorce in the adversarial procedure. The petition should be filed with the competent court due to the place of residence of one of the spouses or the last joint one before filing the lawsuit.
The issue of the law applicable to the divorce of spouses of different citizenship is regulated both by the provisions of the private international law of Turkey (MÖHUK) and by the Polish law – Private International Law. Fundamentally:
- If the spouses have a common residence, the law of that country applies.
- In the absence of a common residence, it is possible to apply the law of the native common citizenship, and if this is not possible, it is usually referred to the laws of the country with which the marriage is most closely connected.
In this context, there may be a proposal to apply Turkish law (in accordance with MÖHUK), however, Article 54 of the Polish Private International Law provides that: If the divorce or separation of the spouses cannot be decreed on the basis of the applicable law in accordance with the provisions of this Act, the Polish law shall apply. This means that if the application of Turkish law would lead to the impossibility of divorce, excessive formalities or violation of the fundamental principles of the legal order of the Republic of Poland, the court may depart from its application and rely on Polish law.
In practice, in many divorce cases with a Turkish element, heard by Polish courts, Polish law applies – especially when the action was brought by a Polish citizen and both spouses live in Poland.
In the light of Article 54 of the PPM, it is possible to defend the view that in the absence of a common place of residence, but when there are significant links with Poland (e.g. organized life in Poland), the court can and should apply Polish law, even if the normal conflict of law rules would point to Turkish law.