An enforcement lawsuit (tenfiz davası) is a legal process that enables a decision rendered by a foreign court, which has become final according to the laws of that country, to be executed by force in Turkey, provided that the necessary legal conditions are met.
For decisions rendered by foreign courts to have legal consequences or be enforceable in Turkey, it depends on the nature of the decision and the conditions stipulated in the relevant legislation. As a rule, foreign court decisions must be “recognized” (tanıma) or “enforced” (tenfiz) in Turkey. Which path to follow depends on the nature of the decision; recognition ensures the determination of a legal status (e.g., divorce), while enforcement allows the implementation of the decision’s executory sanctions (alimony, compensation, etc.). However, it is also possible for certain foreign divorce decisions to be registered in the civil registry through an administrative procedure under Article 27/A of the Population Services Law No. 5490.
Differences Between Recognition and Enforcement
Definition and Legal Basis of the Enforcement Lawsuit
The enforcement of a foreign court decision is the process of the said decision gaining an executory nature (enforceability) within the borders of Turkey. Its legal basis is derived from the provisions of the Law on Private International Law and Procedural Law (MÖHUK) No. 5718.
Main Differences Between Recognition and Enforcement
| Comparison | Recognition (Tanıma) | Enforcement (Tenfiz) |
|---|---|---|
| Main purpose | For the foreign decision to gain the effect of a final judgment or conclusive evidence in Turkey | For the foreign decision to be forcibly executed in Turkey |
| In which situations does it arise? | Recognition of legal situations such as divorce in Turkey | Fulfillment of alimony, compensation, or a specific performance |
| Finalization of the decision | Required as a rule | Required |
| Reciprocity condition | The condition in MÖHUK Art. 54/1-a is not required | Required under MÖHUK Art. 54/1-a |
| Enforceability | Does not grant forced execution authority on its own | With the enforcement decision, the possibility of execution may arise for the relevant provisions |
| Relationship with administrative registration | A separate administrative registration path may be available for certain foreign divorce decisions | A separate evaluation may be required for alimony and other executory provisions |
As summarized in the table:
- Recognition: Ensures that the foreign court decision gains the effect of a final judgment or conclusive evidence in Turkey. For example, recognition may be required for the part of a foreign divorce decision concerning the termination of the marital status to take effect in Turkey.
- Enforcement: It is the decision required for the foreign court decision to be forcibly executed in Turkey. Depending on the nature of the decision and the relevant provisions, enforcement may be required for executory provisions such as alimony, compensation, or the fulfillment of a specific performance.
A decision may contain parts related to both the recognition of a legal situation and enforceable provisions at the same time.
Which Foreign Court Decisions Can Be Recognized or Enforced?
Recognition and enforcement, as a rule, apply to decisions rendered by foreign courts concerning civil cases that have become final according to the laws of the relevant country. However, pursuant to MÖHUK Art. 50/2, enforcement can also be requested for provisions concerning personal rights contained in foreign criminal judgments. Which decision can be the subject of recognition or enforcement is evaluated according to the nature of the decision and the relevant legislation.
Necessary Conditions for the Enforcement of a Foreign Court Decision
Enforcement Conditions Under MÖHUK
In the recognition and enforcement of foreign court decisions, the conditions regulated in Article 50 and the following articles of MÖHUK are taken into account. While the conditions specified in Article 54 are sought for enforcement, subparagraph (a) of the 1st paragraph of the same article regarding reciprocity is not applied in recognition requests. Recognition and enforcement requests are evaluated within the framework of the relevant legal provisions according to the nature of the decision.
The Decision Must Be Final
The prerequisite for both requests is that the decision must be final according to the laws of the country where the foreign court rendering the decision is located. The enforcement of decisions for which the appeal process is ongoing or which are of a temporary nature cannot be requested in Turkey.
Reciprocity, Public Order, and Right of Defense
- Reciprocity (Mütekabiliyet): It is only required for enforcement requests. There must be an agreement, a legal regulation, or a de facto practice between the Republic of Turkey and the state where the judgment was rendered on this issue.
- Violation of Public Order: The foreign court decision must not clearly violate the fundamental principles of Turkish public order.
- Right of Defense: The examination regarding the right of defense is carried out within the scope of MÖHUK Art. 54/1-ç. If the defendant was not duly summoned to the court or represented according to the law of the country where the decision was given, or a decision was given in their absence contrary to the law, it is important to raise an objection based on this situation before the Turkish court. The specific case is evaluated within the framework of the law of the country where the decision was rendered and the relevant legal provisions.
Exclusive Jurisdiction of Turkish Courts
The foreign decision must not have been rendered on a matter falling within the exclusive jurisdiction of Turkish courts. In addition, within the scope of MÖHUK Art. 54/1-b, upon the defendant’s objection, it is also evaluated whether the foreign court deemed itself competent even though there is no real connection with the dispute or the parties. Disputes concerning real rights on immovable properties in Turkey are important examples in terms of exclusive jurisdiction.
Is it Possible to Examine the Merits of the Foreign Court Decision?
In the recognition and enforcement examination, the Turkish court does not re-evaluate the foreign court’s assessment regarding the merits of the dispute. Pursuant to this principle, known as the prohibition of revision, whether the foreign court correctly evaluated the evidence or correctly resolved the merits of the dispute is, as a rule, not re-examined. However, whether the foreign decision meets the legal conditions required for recognition or enforcement is evaluated by the court.
Required Documents for Recognition and Enforcement Lawsuits
Original and Translation of the Foreign Court Decision
Pursuant to MÖHUK Art. 53, the duly approved original or certified copy of the foreign court decision, its certified translation, and a duly approved document showing that the decision has become final, along with its translation, must be attached to the enforcement petition.
Apostille Annotation or Consular Approval
Transactions related to Apostille, consular legalization, and translation approval should be checked according to the relevant international conventions and the country where the document was issued. If there are deficiencies in the documents, they may be requested to be completed depending on the nature of the deficiency and the court’s assessment, or the request may be rejected for procedural reasons.
In Which Court is a Recognition and Enforcement Lawsuit Filed?
Competent Court in Recognition and Enforcement Lawsuits
The competent court is determined by considering the subject of the foreign decision and the applicable jurisdiction rules. MÖHUK Art. 51 regulates that the competent court for enforcement requests is the civil court of first instance (asliye hukuk mahkemesi) and sets the rules for territorial jurisdiction. For decisions related to family law, Law No. 4787 and relevant jurisdiction rules must also be considered. Therefore, for foreign decisions regarding divorce, custody, alimony, or matrimonial property regimes, the competent court must be determined according to the specific request before applying.
How is the Competent Court (Territorial Jurisdiction) Determined?
Pursuant to MÖHUK Art. 51, the lawsuit is generally filed in the court of the domicile in Turkey of the person against whom enforcement is requested (the defendant).
Jurisdiction for Persons Without a Domicile in Turkey
If the defendant does not have a domicile in Turkey, it is filed in the court of their place of residence (temporary residence) in Turkey. If the defendant does not have a domicile or a place of residence in Turkey, the lawsuit can be filed directly in one of the courts in Ankara, Istanbul, or Izmir.
Can a Recognition and Enforcement Lawsuit Be Filed Unilaterally?
Can a Lawsuit Be Filed Without the Other Party’s Consent?
Yes, when the necessary legal conditions are met, one of the parties can file a recognition or enforcement lawsuit unilaterally without the consent or approval of the other party.
What Happens if the Defendant Does Not Come to Court?
If the lawsuit petition and the hearing date have been duly notified to the defendant, the defendant’s failure to attend the hearing does not by itself mean that the trial cannot be held. The court can continue the proceedings within the framework of relevant procedural rules and render a decision based on the status of the file.
Notification Procedure to a Defendant Located Abroad
If the defendant is located abroad in a recognition and enforcement lawsuit, the notification regarding the lawsuit petition and the hearing date must be made in accordance with the valid procedure. The notification method is determined according to the country where the defendant is located, the international conventions applicable between Turkey and that country, and the relevant legislation. In appropriate cases, the international notification procedure under the 1965 Hague Service Convention can be applied.
Failure to make the notification properly can lead to legal problems in the recognition or enforcement examination, especially regarding the defendant’s right of defense. Therefore, when notifying abroad, one should not solely rely on postal delivery; the notification method valid for the specific case and the country’s declarations regarding the convention, if any, must be checked.
What Can Be Done If the Other Party’s Address Is Unknown?
If the defendant’s address is unknown, first, necessary investigations to determine the address must be carried out according to applicable procedural provisions. Notification by publication can only be carried out when the legal conditions are met and in accordance with the relevant procedure.
How to File a Divorce Recognition and Enforcement Lawsuit?
Recognition of a Foreign Divorce Decision in Turkey
For individuals divorced abroad, in order for the divorce decision to have legal consequences in Turkey in terms of marital status, the decision must, as a rule, be recognized or administratively registered within the scope of Article 27/A of the Population Services Law No. 5490. If the decision contains alimony, compensation, or any other executory provision, whether enforcement is additionally required for these provisions to be applicable in Turkey should be evaluated according to the content of the decision.
Administrative Registration of the Divorce Decision in the Civil Registry
The administrative registration of a foreign divorce decision in the civil registry depends on the conditions in Article 27/A of the Population Services Law No. 5490 and the relevant regulation. The parties can make their applications together at the same time or at different times. In case of separate applications, the period between the two applications must not exceed 90 days. Unilateral application is possible in special circumstances stipulated in the law and regulation. Therefore, whether administrative registration is possible if the other party does not participate in the application must be evaluated separately according to the circumstances of the specific case.
Differences Between Administrative Application and Court Process
Administrative registration is a separate path that allows certain foreign divorce decisions to be recorded in the family registry under Article 27/A of Law No. 5490. This process does not ensure that executory provisions in the foreign decision, such as alimony, compensation, or property regimes, are automatically applied in Turkey. For such provisions, it must be evaluated whether enforcement is additionally required.
Provisions on Custody, Alimony, and Property Regimes in Foreign Divorce Decisions
When evaluating the recognition or enforcement of a foreign divorce decision in Turkey, the part of the decision relating only to divorce and other provisions such as custody, alimony, compensation, and property regimes must be distinguished from each other. Processing the divorce into the civil registry through administrative registration does not mean that all these provisions will automatically apply in Turkey.
Whether enforcement is required for provisions requiring alimony, compensation, or the fulfillment of a specific performance is determined according to the content of the decision and the relevant legislation. Provisions regarding custody (e.g., joint custody decisions) are evaluated within the framework of the nature of the decision, the best interests of the child, and applicable legal rules. The recognition of the custody arrangement in the foreign decision and requests for rearranging custody later due to changing circumstances are not the same legal issue.
In requests related to property regimes or property division, the scope of the provision in the foreign decision, the nature of the requested legal outcome, and the start of the relevant statute of limitations must also be examined separately. If the conditions for administrative registration are not met, or if the application of executory provisions of the foreign decision in Turkey, such as alimony, compensation, or child handover, is requested, it may be necessary to apply directly to the court according to the nature of the relevant decision and applicable legislation.
Filing a Divorce Lawsuit from Abroad and Carrying Out Legal Transactions in Turkey
Can Recognition and Enforcement Procedures Be Done Without Coming to Turkey?
Yes, in most cases, the process can be carried out through a lawyer without the parties having to come to Turkey in person. For this, the power of attorney must contain the necessary authorities for the relevant transaction and meet the valid form requirements according to the place where it is issued. Whether the court or relevant authority will request an additional procedure or document in the specific case must also be evaluated.
The Process of Giving Power of Attorney to a Lawyer in Turkey
If the process is to be carried out through a lawyer, the power of attorney must contain the necessary authorities for recognition and enforcement procedures and meet the valid form requirements according to the place where it is issued. Whether special authorization is required in divorce and other family law transactions must be checked separately in terms of the scope of the power of attorney and applicable procedural rules. Legalization or consular procedures may also arise for powers of attorney issued abroad.
The Path to Follow for Persons Who Got a Divorce Decision in a Foreign Country
The desire of a person living abroad to file a new divorce lawsuit in Turkey is different from the recognition of a divorce decision previously given by a foreign court. In the first case, the international jurisdiction of the Turkish courts, the applicable law, and the procedural rules regarding the filing of the lawsuit are evaluated. If there is a previously rendered and finalized foreign divorce decision, the recognition or, if necessary for the executory provisions of the decision, the enforcement path comes to the fore for this decision to have legal consequences in Turkey.
Finalization and Legal Consequences of the Recognition and Enforcement Decision
When Does a Recognition and Enforcement Decision Become Final?
The finalization of the Turkish court’s decision regarding a recognition or enforcement request depends on the applicable rules on legal remedies and the parties’ application status. The period for applying for legal remedies, as a rule, starts to run upon the proper notification of the decision. The period and the legal remedy to be applied to must be checked considering the specific decision and relevant procedural provisions.
When Does the Legal Effect of the Foreign Court Decision Begin?
Pursuant to MÖHUK Art. 59, the conclusive judgment or conclusive evidence effect of a foreign judgment takes effect from the date the foreign court decision becomes final. Therefore, the date of divorce in a recognized foreign divorce decision is, as a rule, the finalization date of the foreign decision. However, the enforcement conditions required for the foreign decision to be forcibly executed in Turkey must be evaluated separately.
Processing the Finalized Decision into the Civil Registry
When the Turkish court decision regarding the recognition or enforcement of a foreign divorce decision becomes final, the necessary civil registration procedures are carried out within the framework of relevant legislation. After the decision becomes final, the relevant civil registration procedures are carried out according to the applicable legislation and the nature of the court decision.
Legal Consequences of Not Recognizing a Divorce Decision
When a foreign divorce decision is not recognized in Turkey, the marital status of the parties might not be updated in the Turkish civil registry. This situation can lead to problems in legal matters dependent on marital status, such as remarriage and inheritance.
What Happens if the Enforcement Lawsuit is Rejected?
Reasons for Rejection of the Enforcement Request
The rejection of an enforcement request is not based on a re-examination of the merits of the foreign court decision, but on an examination of whether the conditions stipulated in MÖHUK exist. The absence of the reciprocity condition, the decision being clearly contrary to Turkish public order, a violation of the rules on the exclusive jurisdiction of Turkish courts, or the failure to meet the other conditions regulated in MÖHUK Art. 54 may be reasons for rejection. Objections regarding the right of defense are also evaluated within the framework of the conditions in the law. The consequences of deficiencies in the required documents are evaluated according to the nature of the deficiency and the conditions of the trial.
Legal Remedies Against the Rejection Decision
Legal remedies can be pursued against a decision rejecting a recognition or enforcement request, according to the procedural provisions applicable in the specific case. The application period and the authority to be applied to must be determined according to the nature of the decision and the relevant legislation.
Frequently Asked Questions
Is it Mandatory to Come to Turkey for a Recognition and Enforcement Lawsuit?
No. In most cases, the process can be followed through a duly authorized lawyer without being personally present in court.
Can a Recognition and Enforcement Lawsuit Be Filed Unilaterally?
Yes. When the necessary legal conditions are met, the lawsuit can be filed unilaterally without the participation of the other party.
Are Witnesses Heard in a Recognition and Enforcement Lawsuit?
In recognition and enforcement lawsuits, the merits of the dispute in the foreign court are, as a rule, not re-examined. The court evaluates the legal conditions required for the recognition or enforcement of the foreign decision. Therefore, hearing the case from the foreign court from the beginning and re-evaluating the evidence is out of the question.
Is a Foreign Divorce Decision Automatically Valid in Turkey?
No. For it to have legal consequences in Turkey, one of the methods of administrative registration or judicial recognition/enforcement stipulated in the legislation must be applied.
Is an Apostille Mandatory for a Recognition and Enforcement Lawsuit?
Whether the Apostille procedure applies should be evaluated according to the relevant international conventions, the country where the document was issued, and the nature of the document. In situations where the Apostille procedure does not apply, the valid legalization procedure for the relevant document must be checked.
Can One Remarry Before the Recognition and Enforcement Decision Becomes Final?
If the recognition or enforcement process is carried out through the court, the finalization of the decision and the completion of the necessary civil registration procedures must be awaited. If administrative registration of the foreign divorce decision is possible, the conditions of this separate procedure are evaluated. Also, other applicable legal conditions regarding remarriage must be taken into account.
