ACT ON INTERNATIONAL PRIVATE AND INTERNATIONAL PROCEDURE LAW

Law Number : 5718

Date of Adoption : November 27,2007

Date and No. of Publication in the Official Gazette : December 12,2007 - 26718


NOTE: This translation is unofficial and for information purposes only. All rights of it are reserved as a translation anyway. Read this page first, please. Click "MİLLETLERARASI ÖZEL HUKUK VE USUL HUKUKU HAKKINDA KANUN" for full Turkish text of the Act.

 

PART ONE
Private International Law

CHAPTER ONE
General Provisions

Scope

ARTICLE 1 – (1) The law to be applied to private law transactions and relationships that contain a foreign element, international jurisdiction of Turkish courts, and recognition and enforcement of foreign judgments, are regulated by this Law.

(2) Provisions of international conventions to which the Republic of Turkey is a party are reserved.

 

Application of foreign law

ARTICLE 2 – (1) The judge applies the rules of Turkish conflict of laws and the foreign law which is competent according to these rules ex officio. The judge may seek assistance of the parties for determination of the content of the competent foreign law.

(2) If the provisions of the foreign law to be applied to the event cannot be ascertained despite all researches, it is applied Turkish law.

(3) Authorisation by the rules of conflict of laws of foreign law to be applied, of another foreign law, is only taken into consideration in conflicts related to law of persons and family law and substantive law provisions of this law are applied.

(4) In cases where an opportunity of choosing the law to be applied given, the substantive provisions of the chosen law are applied, unless stipulated otherwise by the parties.

(5) If the country whose law will be applied has two or more regional units and if these units have different legal systems, of which regional law to be applied is determined according to the law of that country. In case there is not a determining provision in the law of that country, the regional law which has the closest relationship with the conflict is applied.

 

Variable conflicts

ARTICLE 3 – (1) In cases where competent law is determined according to the basis of nationality, domicile, or habitual residence, unless provided otherwise, the nationality, domicile, or habitual residence that is on the date of filing lawsuit is taken as basis.

 

Competent law according to the basis of citizenship

ARTICLE 4 – (1) In cases where the competent law is designated according to nationality pursuant to the provisions of this Law, unless provided otherwise in this Law;

a) With respect to a stateless persons and refugees; domicile law, in the absence of that; law of habitual residence, if that is absent either; the law of the place where they are situated on the date of filing lawsuit,

b) With respect to persons having citizenship of more than one state and in case that they are Turkish citizen at the same time; Turkish law,

c) With respect to persons who have citizenship of more than one state and who are not Turkish citizen at the same time; the law of the state which they have closer relationship with,

is applied.

 

Contradiction with public order

ARTICLE 5 – (1) In case the provision of a competent foreign law to be applied for a specific event is evidently contrary to public order of Turkey, that provision is not applied. Turkish law is applied in cases where deemed necessary.

 

Rules of Turkish law applied directly

ARTICLE 6 – (1) In situations where the competent foreign law is applied and in cases where included in the scope of directly applied rules of Turkish law in respect to purpose of regulation and field of application, that rule is applied.

 

Form in legal transactions

ARTICLE 7 – (1) Legal transactions may be carried out in accordance with the form stipulated by the law of the country in which they have been made or provisions related to substantive law of the law competent as to substance of that transaction.

 

Period of limitation

ARTICLE 8 – (1) Period of limitation is subject to the law applied to the substance of the legal transaction and relationship.

 

CHAPTER TWO
Rules of Law of Conflict

Capacity

ARTICLE 9 – (1) Capacity to have rights and capacity to act are subject to the national law of the person concerned.

(2) If a person lacking legal capacity pursuant to his/her national law has capacity according to the law of the country in which transaction has been carried out, is bound by the transaction he/she has carried out. Transactions regarding to family and inheritance law and those pertaining real rights on immovable properties that are located in foreign countries are excluded from the scope of this provision.

(3) Majority acquired by one’s own national law, does not terminate by changing of citizenship.

(4) Capacity to have rights and capacity to act of legal entities or communities of persons or assets are subject the law of their administration centers specified in their statutes. However, in case where the actual administration center is located in Turkey, Turkish law may be applied.

(5) The legal capacity of the legal entities lacking statute and the communities of persons and assets lacking legal entity is subject to the law of the actual administration center.

 

Guardianship, interdiction and curatorship

ARTICLE 10 – (1) The reasons of rendering the decision of guardianship or interdiction or terminating of them is subject to the national law of the person about whom the decision of guardianship or interdiction or termination of them is required.

(2) In cases where it is not possible to render a decision of guardianship or interdiction according to the national law of the foreign person, such a decision may be rendered pursuant to Turkish law, provided that the habitual residence of that foreign person is present in Turkey. In cases where the person is in Turkey compulsorily, Turkish law is applied.

(3) All issues regarding interdiction or guardianship and curatorship other than the reasons of rendering the decision of guardianship or interdiction or terminating of them are subject to Turkish law.

 

Absence or presumption of death

ARTICLE 11 – (1) The decision of absence or presumption of death, is subject to national law of the person about whom rendered decision. In case properties of the person are located in Turkey, about whom decision of absence or presumption of death could not be rendered according to the national law of him/her, or in case where his/her spouse or one of his/her heirs is a Turkish citizen, the decision of absence or presumption of death is rendered according to Turkish law.

 

Engagement

ARTICLE 12 – (1) The capacity and conditions of engagement are subject to respective national law that is at the time of engagement of each one of the parties.

(2) As to the effects and consequences of the engagement the joint national law, if the parties are of different citizenship, Turkish law is applied.

 

Marriage and its general provisions

ARTICLE 13 – (1) The capacity and conditions of marriage are subject to respective national law that is at the time of marriage of each one of the parties.

(2) To the form of marriage, it is applied the law of the country where the marriage is solemnized.

(3) General provisions of marriage, are subject to the joint national law of the spouses. In case the spouses are of different nationalities, the law of their joint habitual residence, in the absence of that; Turkish law is applied.

 

Divorce and legal separation

ARTICLE 14 – (1) The grounds for divorce and separation and effects of them, are subject to the joint national law of the spouses. In case the spouses are of different nationalities, the law of their joint habitual residence, in case that is absent Turkish law is applied.

(2) The provision of the first paragraph is applied for alimony claims between divorced spouses. This provision is also valid in cases of separation and annulment of marriage.

(3) Custody in divorce and problems related to custody are also subject to the provision of the first paragraph.

(4) Turkish law is applied for claims of temporary measures.

 

Matrimonial properties

ARTICLE 15 – (1) Spouses may choose expressly either the law of domicile or one of their national laws that is at the time of marriage for matrimonial properties; in case such a choice has not been made, joint national law at the time of marriage related to matrimonial properties, in the absence of that the law of habitual residence, if that is absent either, Turkish law is applied.

(2) In liquidation of the properties, for immovables, the law of the country that they are located in is applied.

(3) The spouses who acquire a new joint law after marriage, may be subject to that new law provided that the rights of third persons are reserved.

 

Establishment of lineage

ARTICLE 16 – (1) The establishment of lineage is subject to the national law of the child that is at the time of birth, in case can not be established, to the law of the child’s habitual residence. If the lineage can not be established according to those laws, it is established subject to the law of habitual residence of mother of father at the time of the child’s birth moment. If it can not be established according to that either, it is established subject to the law of the child’s birth place.

(2) According to whatever law lineage was established, its annulment is subject to that law.

 

Effects of lineage

ARTICLE 17 – (1) Effects of lineage, are subject to the law that established lineage. However, if there is a joint national law of the father, mother and child, that law is applied, if there is not, the law of joint habitual residence is applied to the effects of lineage.

 

Adoption

ARTICLE 18 – (1)The capacity and conditions of adoption, are subject to respective national law that is at the time of adoption of each one of the parties.

(2) The national laws of the spouses are applied jointly with respect to the consent of the other spouse to adopt or being adopted.

(3) Effects of adoption are subject to the national law of the adoptive parent, in case of a joint adoption of spouses, to the law specified general provisions of marriage.

 

Alimony

ARTICLE 19 – (1) Claims of alimony, are subject to the law of habitual residence of alimony creditor.

 

Inheritance

ARTICLE 20 – (1) Inheritance, is subject to the national law of the deceased. Turkish law is applied to immovable properties located in Turkey.

(2) Provisions relating to the reasons of opening, acquisition and partition of inheritance are subject to the law of the country where the estate is located.

(3) The estate without heirs, located in Turkey, is inherited by the State.

(4) Provision of the Article 6 is applied to the form of testamentary disposition. Testamentary dispositions drawn up consistent with the national law of the deceased are also valid.

(5) Testamentary capacity, is subject to the national law of the person who disposes at the time of disposition.

 

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