Recognition and Validity of Marriages with Foreign Elements
1. Introduction
In a globalized world, marriages between individuals with foreign nationalities constitute one of the most complex areas of private international law. Marriages involving foreign elements have profound consequences not only for the personal status of individuals but also for areas such as citizenship, inheritance, property regimes, and child custody. The Turkish legal system has established a multi-layered framework in this regard,
encompassing both domestic law and private international law rules. This article will examine the conditions for the establishment of marriages involving foreign elements, their validity, recognition in Turkey, public order restrictions, the registration process, and Supreme Court precedents.
2. Definition and Legal Significance of the Foreign Element
The element of foreignness in a marriage arises when the parties have different nationalities, residences, or places of marriage in different countries.
For example;
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Marriage between a Turkish citizen and a foreign citizen,
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Marriage of two foreigners in Türkiye,
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Marriage between two Turkish citizens in a foreign country,
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Marriage of stateless persons
All of these cases marriages involving foreign elements .
If these elements exist, the law applicable to the marriage is determined according to the provisions of Law No. 5718 on Private International Law and Procedural Law (MÖHUK) . This law establishes connecting rules that regulate which country's law will determine both the substantive and formal requirements of marriage .
3. The Law Applicable to the Material Conditions of Marriage
According to Article 13 of the Turkish Code of Private International Law, "Marriage capacity and the material conditions of marriage are subject to the national law of each party at the time of marriage." This provision indicates the legal systems that will be applied separately to each party
3.1. Eligibility to Marry
Marriage eligibility encompasses personal requirements such as age, capacity to understand, degree of kinship, impediments to marriage, and the existence of previous marriages.
For example, for Turkish citizens, Articles 124–133 of the Turkish Civil Code (TMK) apply. The minimum marriage age in Turkish law is 18; at 17, parental consent is required, and at 16, judicial permission is necessary.
In the case of foreign spouses, their own national law applies. Therefore, if a German citizen can marry before the age of 18 according to German law, this marriage can only be recognized if it does not clearly violate Turkish public order.
3.2. Principle of Dual Compatibility
In Turkish legal doctrine and the practice of the Supreme Court, the principle of dual eligibility is accepted. According to this principle, for a marriage to be valid, both parties must be legally competent to marry according to their respective national laws.
This principle is important for maintaining public order and preventing incapacitated persons from marrying.
4. The Law Applicable to the Form of Marriage
The fundamental regulation regarding the form of marriage 14 of the Private International Law Act:
"The form of marriage is subject to the law of the place where the marriage takes place."
This principle lex loci celebrationis . That is, the formal rules prescribed by the laws of the country where the marriage took place apply.
4.1. Marriage of Foreigners in Türkiye
According to Articles 142 and 143 of the Turkish Civil Code, marriages are performed before a municipal marriage officer or a civil registry office.
Foreign nationals marrying in Turkey a certificate of no impediment , and this document must be translated into Turkish and notarized or apostilled.
4.2. Marriage of a Turkish Citizen Abroad
Turkish citizens abroad:
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In the presence of a Turkish consul or ambassador, according to Turkish law,
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Alternatively, they may marry before the competent authorities of a foreign country in accordance with the laws of that country.
In both cases, proper registration is required for the marriage to be valid in Turkey.
5. Registration (Entering into the Population Register) Process
In order for marriages performed abroad to be valid in Turkey, notification must be made in accordance with Article 27 of the Population Services Law . After the parties get married:
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You must apply to the Turkish consulate or embassy within 30 days
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Alternatively, they must submit an apostilled marriage certificate (Form B) directly to the population registry office in Turkey .
Marriages performed by consulates are also registered in the family registry in Türkiye.
Registration is not the element that makes a marriage valid; it is merely the official recording of an existing valid marriage. However, a marriage not registered in the population registry can cause problems in many legal transactions in Turkey (e.g., surname, inheritance, residency, property regime).
6. Public Order Intervention
Article 5 of the Turkish Code of Private International Law stipulates that foreign law that is clearly contrary to public order cannot be applied.
This provision comes into play in cases such as polygamy, marriage of minors, degrees of kinship that prevent marriage, or marriages performed solely through religious ceremonies.
The Supreme Court has repeatedly ruled that such marriages cannot be recognized on the grounds that they are contrary to Turkish social order.
For example, of the 2nd Civil Chamber of the Supreme Court, numbered 2017/7643 E., 2018/11703 K. , a marriage performed in a foreign country with a religious ceremony and not before an official authority was deemed invalid as it was contrary to Turkish public order.
7. Examples from Supreme Court Practice
7.1. Marriages Performed Before a Consulate
The 2nd Civil Chamber of the Supreme Court of Appeals, 2016/4231 E., 2017/7569 K. , stated that a marriage between a Turkish citizen and a Russian citizen, performed before the Turkish consulate in Russia, is valid and that the failure to register the marriage does not invalidate its validity.
7.2. Marriages Performed with Religious Ceremonies
In its decision numbered 2019/2765 E., 2019/6784 K. , the 2nd Civil Chamber of the Supreme Court of Turkey ruled that a marriage performed solely before a religious authority in Morocco is formally invalid because Moroccan law also requires a formal civil registration, and therefore this marriage cannot be recognized in Turkey.
7.3. Prohibition of Polygamy
The Supreme Court of Turkey has ruled that a marriage contracted in a foreign country before the dissolution of the first marriage is clearly contrary to Turkish public order and therefore invalid (Supreme Court of Turkey, 2nd Civil Chamber, Case No. 2015/7652, Decision No. 2016/8751).
8. Cases of Invalidity and Nullity of Marriage
Articles 145–160 of the Turkish Civil Code regulate absolute and relative nullity.
Even in marriages involving foreign elements, if the marriage is validly established, on nullity apply if it is contrary to Turkish public order.
Grounds for absolute nullity include:
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Getting married while already married,
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Close kinship,
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Lack of discernment,
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Marriage between people of the same sex
countable.
If any of these reasons exist, the marriage is not recognized in any way and is deemed null and void by court order.
9. The Relationship Between Divorce, Recognition, and Enforcement
Divorce decrees issued by couples who married in foreign countries do not become legally binding in Turkey without a recognition or enforcement lawsuit being filed. With Article 58/A of the Private International Law Act , which came into force in 2018 , it became possible to have some foreign divorce decrees recognized administratively (via the population registry office). However, for this to happen:
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The decision has become final
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The parties must apply together
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The decision must not be contrary to Turkish public order.
If one of the parties objects or if a joint application is not filed, it is still a recognition and enforcement lawsuit in the Family Court .
10. The Law Applicable to Property Regimes and Other Consequences of Marriage
Article 15 of the Turkish Code of Private International Law regulates the law applicable to the general provisions of marriage:
"The common national law of the spouses shall apply, if none exists, the law of their common habitual residence shall apply, and if neither exists, Turkish law shall apply."
According to this provision:
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If spouses share the same nationality, the laws of that state apply.
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In cases of different nationalities, the law of the place where they actually live together applies.
the property regime , spouses may choose the applicable law by written agreement before or after marriage. In the absence of such a choice, the property regime is determined according to the law of the country where the spouses had their habitual residence at the time of marriage (Turkish Private International Law Act, Article 15/2).
These rules are particularly important in the distribution of goods, real estate, and investment assets acquired by Turkish citizens abroad.
11. Citizenship and Ancestry of Children
The citizenship of children born from marriages involving foreign elements is determined in accordance with Article 7 of the Turkish Citizenship Law. A child born to a Turkish citizen mother or father becomes a Turkish citizen at birth. Therefore, even if a Turkish citizen mother or father is married to a foreign spouse, the child is a Turkish citizen at the time of birth.
Regarding parentage, Articles 282-284 of the Turkish Civil Code apply; if a child is born within marriage, the husband is considered the father. Birth certificates of children born in foreign countries are registered in Türkiye with an apostille.
12. Problems Encountered in Practice
Common problems in marriages involving foreign elements include:
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Failure to properly prepare the documents (lack of apostille, translation errors),
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Exceeding the validity period of marriage license documents,
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Limiting oneself to religious ceremonies,
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Non-publication of divorce decrees,
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Registration rejected on the grounds of being contrary to public order,
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Jurisdiction-law conflict in property regime disputes.
These problems often lead to administrative refusals or claims of invalidity in court.
13. European Union Law and Comparative Perspectives
According to the Brussels II bis Regulation (2201/2003) on the recognition of marriages in the countries of the European Union , marriage decrees are mutually recognized between member states. Although Turkey is not an EU member, it accepts the validity of international documents through the Hague Marriage Conventions and the apostille system
The principle that "the form of marriage is subject to the law of the place where it is performed" is also adopted in the legal systems of Germany, France, and England. In this respect, the Turkish legal system is in compliance with international standards.
14. Doctrinal Views on the Limits of Public Order
The scope of public order intervention is a matter of debate in Turkish legal doctrine.
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According to Professor Nomer, public order should only be enforced in cases that clearly conflict with the fundamental values of Turkish society.
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According to Professor Doğan, monogamy, official marriage, and the principle of gender equality, which form the core of family law, are the absolute limits of public order.
The Supreme Court's practice aligns with the second view. In particular, polygamy and marriages performed through religious ceremonies are rejected on the grounds of being contrary to public order.
15. Electronic and Distance Marriages (New Developments)
In the post-pandemic period, online marriage practices have become prominent in some countries. However, in Turkish law, according to Article 142 of the Turkish Civil Code, marriage must be performed in person before a marriage officer.
Therefore, marriages performed digitally are formally invalid.
However, if such marriages are valid in the countries where the parties reside, they may be granted formal validity in Turkey the lex loci celebrationis principle.
Although there is no legal regulation on this matter, in practice, the Ministry of Foreign Affairs and the General Directorate of Population and Citizenship Affairs subject such documents to "exceptional review".
16. Conclusion and Evaluation
The recognition and validity of marriages involving foreign elements to a mixed regime .
The material conditions of marriage are determined according to the national law of the parties, while the form is determined according to the law of the place where the marriage is concluded.
In Turkey, fundamental principles such as public order, monogamy, formal requirements, and legal capacity are absolutely protected during the recognition and registration process.
In this context;
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For marriages performed abroad to be valid, they must comply with the formal requirements stipulated by the laws of that country.
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A Turkish citizen having the legal capacity to marry according to their own law,
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The marriage must be reported to the consulate or civil registry office within 30 days,
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there should be no violation of public order .
The Supreme Court's decisions also reinforce these principles, establishing a consensus on jurisprudence regarding invalidity in cases of violation of public order and formal deficiencies.
In conclusion, the validity of marriages involving foreign elements is not merely a matter of personal status, but also a public interest related to the preservation of the Turkish family structure.
Therefore, in Turkish law, the recognition of international marriages protects both the privacy of individuals and public order in a delicate balance.
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