As per article 4 of Statutory Decree No. 690 that has been issued within the scope of the State of Emergency and published in the Official Gazette dated 29 April 2017 No. 30052, an arrangement has been made for direct registry in the birth record of the decisions reached abroad by foreign country legal and administrative official bodies regarding the determination of the dissolution, nullification, annulment or existence of marriages without recourse to legal means, based on the addition of paragraph 27/A to article 27 of the Civil Registry Services Act No. 5490.
Although the heading of the subject matter article is “The Registry of Divorce Decrees Issued by Foreign Country Legal and Administrative Official Bodies”, an arrangement has been made in regards to the registry in the birth record of also the decisions reached with respect to the nullification, annulment or existence of marriages other than divorces, by adding “Decisions reached by foreign country legal and administrative official bodies regarding the determination of dissolution nullification, annulment or existence of marriages” titled paragraph 27(A) - 1 following article 27 of the Civil Registry Services Act.
A. CONDITIONS SOUGHT FOR REGISTRATION
In line with this arrangement the existence of some conditions are sought for registry in the birth record without recourse to legal means.
I. DECREE AND NATURE OF THE DECREE
i. The decree issued by the relevant legal or administrative official body of a foreign country must be in regards to the
iv. Annulment, or
v. Existence of a marriage.
II. WHO COULD FILE A REQUEST
vi. For recognition and registry in the birth record of such a decree as stipulated in the subject matter article, the application must be made by both parties either in person or via their representatives.
It is important to note that both parties must file a request with the relevant official body, for registration in the birth record of a decree of this nature, either in person or by means of their representatives. Therefore, it would not be possible to request the registration of this type of a decision in the birth record on the basis of an application made by one of the parties or the representative of one of the parties to the related official body. To be able to do that both of the parties would be required to file an application with the relevant official body together in person or through their representatives, or in a combination of the foregoing alternatives.
That is to say, it would not be possible to have a decision of this nature registered in the birth record upon an application made solely by one party either in person or through a representative.
In my opinion, anybody can request the registry of this type of a decision in the birth registry provided that they have an interest in the recognition and approval of the same as per established case-laws of the Court of Appeals.
III. THE REGISTRATION OF WHICH AUTHORITIES COULD BE REQUESTED?
vii. Another condition of this procedure stipulates that “the decision must be of a legal or administrative body authorized as per the laws of the country concerned.”
As per this stipulation, the registration in the birth record of any decision regarding the determination of the dissolution, nullification, annulment or existence of a marriage reached by a legal or administrative body that is not authorized under the laws of the concerned foreign country, could not be requested without recourse to legal means.
IV. THE DECISION MUST HAVE BEEN PROCEDURALLY FINALIZED
viii. Another stipulation requires that the decision “is finalized in procedural terms.”
As per this stipulation, the decision requested to be registered in the birth record must have been finalized either without an appeal or if appealed then following the appeal process.
This means that the justified original court decree must bear an annotation testifying to the fact that it is final. The registration of the decisions that do not bear a finalization annotation in keeping with the procedure cannot be requested.
V. MUST NOT BE EXPRESSLY AGAINST THE TURKISH PUBLIC ORDER
ix. Another condition stipulates that the decision “must not be expressly against the Turkish public order.”
Accordingly, the birth record registration of the decrees that are against the Turkish public order and have not been issued by the bodies that are not authorized under the laws of the concerned country, cannot be requested without the procedural establishment of the parties and the granting of the right of defense.
B. AUTHORITIES THAT COULD HANDLE THE REGISTRATION PROCESS
Within the scope of the relevant Statutory Decree, applications to two different bodies could be made as per the following provision of Article 27/A paragraph (2) following article 27 of Civil Registry Services Act No. 5490; “Any registration in the birth record is handled by the foreign representations available in the country whereby the decree is passed or the Civil Registry offices determined by the Ministry in the country.”
The first one of these is the foreign representation in the country where the decree is passed. Due to the fact that it hasn’t been stated in the law whether foreign representation is the one available in the place of residence of the applicant requesting registration or the one available at the place in which the court issuing the decree is located, the people filing requests for registration in the birth record can apply to any foreign representation office. To give an example, the parties that are divorced in Berlin, Germany can apply to the Turkish representation available in Berlin as well as any other foreign representation of Turkey available in another center, such as Munich or Paris, for this decision to be registered in the birth record.
Another authorized body would be the “Civil Registry Offices designated by the Ministry in the country” and as per this arrangement the Ministry of Internal Affairs to which the General Directorate of Civil Registry Services reports, will be the ministry to designate the Civil Registry offices to accept the applications for the registration of these decisions in birth records. Therefore the requests filed with the Civil registry Offices that are not designated by the Ministry shall not be acceptable due to the fact that these offices would not be authorized for registration of respective decisions in birth records.
C. IF A REGISTRY APPLICATION IS DENIED
Paragraph (3) of Article 27(A) following article 27 of the Civil Registry Services Act No. 5490 states the following within the scope of the related Statutory Decree; “The recognition of the decisions that are declined for registration due to their failure to meet the conditions stipulated in this article, in Turkey, shall be handled as per the legislation on International Private and Procedural Law dated 27/11/2007 No. 5718.” If the decisions subject to this legal arrangement are declined for registration in the birth record by the foreign representations abroad and civil registry offices designated by the Ministry in the country as per the said arrangement, the parties could ensure the registration of this type of decisions in the birth records in court cases to be filed before the courts of law in line with the legal arrangements made in articles 50-59 of the legislation on International Private and Procedural Law No. 5718.
Within the scope of the said Statutory Decree, the implementation of the article shall be determined in a regulation to be issued by the Ministry of Internal Affairs as per paragraph (4) of article 27/A that follows article 27 of the Civil registry Services Act No. 5490; “The principles and procedures pertaining to the enforcement of this article shall be determined in a regulation issued by the Ministry.”
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Written by Haydar AKGUL for YellAli
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