Void Marriage, Divorce Still Heard: Court of Cassation 2026/4435

Imagine a couple who have lived in Türkiye for years, have two children and married abroad with an official document. One spouse files for divorce in a Turkish court, but the court dismisses the case without looking at the merits. The reasoning is surprising: under Turkish law the marriage is tainted by absolute nullity, so there is no marriage left to "divorce". The Court of Cassation, 2nd Civil Chamber, did not accept this approach and set out in detail the difference between a marriage being void and a marriage ceasing to exist without a judge's decision.

In its decision dated 21.04.2026 (Docket No. E.2025/5548, Decision No. K.2026/4435), the Court of Cassation, 2nd Civil Chamber held that even where a marriage has a ground for absolute nullity, the judge cannot raise the nullity on their own motion, that the marriage produces all the effects of a valid marriage until a nullity decision is given, and that the divorce case must be examined on the merits. By a majority vote, it reversed the dismissal on procedural grounds.

🌍 Nationals of Two Countries, a Family in Türkiye

According to the text of the decision, the claimant wife is an Egyptian national and the defendant husband is a Saudi Arabian national. Under an official document issued in Egypt, the wife's country of nationality, the parties married on 04.04.2007 and have two children together. The parties have lived in Türkiye since 2012.

The case contains no foreign court judgment showing that the parties had divorced earlier and for which recognition or enforcement had been granted in Türkiye. The marriage therefore came before the Turkish court as one that was still continuing. Relying on the ground of "breakdown of the marriage union" in the first paragraph of Article 166 of the Turkish Civil Code No. 4721, the wife filed for divorce before the family court in Yalova.

🚫 Why the Lower Courts Did Not Hear the Case

The first-instance court stopped at the examination of the procedural requirements and did not go into the merits. The main lines of the reasoning set out in the decision are as follows:

The Bursa Regional Court of Appeal, 2nd Civil Chamber, rejected the wife's appeal on the merits. Both lower courts thus reached the same result on the basis of a lack of legal interest, and the wife's lawyer appealed the decision in full to the Court of Cassation, with a hearing.

🧭 The Line Between Non-Existence and Nullity

The backbone of the Chamber's reasoning is the separation of the different kinds of defect in a marriage contract. The decision reminds us that marriage is a contract specific to family law and that, if the legal conditions are not met, it may face the sanction of non-existence or nullity.

Non-existence: If one of the constituent elements is missing, the marriage is treated as never having come into being. As examples, the decision cites a marriage conducted before a person who is not a marriage officiant, and the parties failing to declare their consent in person and at the same time before the officiant. Non-existence is not regulated by statute but is accepted in legal scholarship and practice; no annulment case is needed, it can be raised at any time, and it is taken into account by the court on its own motion. A judge who finds non-existence in a divorce case gives a decision confirming non-existence, not a divorce.

Nullity: In the TMK it is regulated, on a limited number of grounds, as absolute and relative nullity. Under Article 145 TMK, one spouse being married at the time of the marriage, permanent lack of capacity to discern, mental illness that prevents marriage, and a family relationship that prevents marriage are grounds for absolute nullity. Under Article 146 TMK, a case for absolute nullity is brought by the public prosecutor ex officio, and anyone with an interest may also bring it. The right to bring a case for absolute nullity is not subject to any time limit.

The decisive provision is Article 156 TMK: "A void marriage ends only by a judge's decision. Even in the case of absolute nullity, the marriage produces all the effects of a valid marriage until the judge's decision." The Chamber stressed that, unlike transactions in the law of obligations, a judge cannot decide on nullity on their own motion even if nullity grounds emerge in another case (for example a divorce case); a case filed for that purpose is essential. It referred to the General Assembly of Civil Chambers decision of 02.11.2011 (E.2011/7-695, K.2011/673).

The decision also recalls the consequences of nullity: children born of a marriage declared void are treated as born within marriage (Article 157 TMK), and the divorce provisions apply to the liquidation of the property regime, compensation, maintenance and surname (Article 158 TMK). For a different example involving relative nullity, see the series decision on annulment of a marriage on the ground of deceptionTR.

📜 Which Country's Law Applies?

Because neither party is a Turkish national, the Chamber first determined the applicable law. The decision sets out the relevant provisions of Law No. 5718 on Private International and Procedural Law (MÖHUK) as follows:

• Article 2/1: The judge applies the Turkish conflict-of-laws rules and, under those rules, the competent foreign law on their own motion.
• Article 13: Capacity to marry and the conditions of marriage are governed by the national law of each party at the time of the marriage; the form of the marriage is governed by the law of the country where it is concluded.
• Article 14/1: The grounds and effects of divorce are governed by the spouses' common national law; if they have different nationalities, by the law of their common habitual residence, and failing that, by Turkish law. The same rule applies to maintenance, nullity and custody (Article 14/2-3).

In this case the parties have no common national law, but since they have lived in Türkiye since 2012, their common habitual residence is Türkiye. The Chamber therefore accepted that Turkish law must be applied. It then applied Turkish law's own rule, Article 156 TMK: the fact that, under Turkish law, a marriage has a ground for absolute nullity does not remove the marriage unless a nullity decision is given.

For another aspect of recognition in family relationships with a foreign element, see the series decision on an heir seeking recognition of a foreign divorce judgment.

⚖️ The Chamber's Conclusion and the Dissenting Opinion

The Chamber accepted that a person marrying someone else while already married is a ground for absolute nullity under Turkish law and amounts to a clear violation of Turkish public policy. Even so, it departed from the lower courts on the following findings:

1. The court cannot assess on its own motion whether the marriage is void through absolute nullity.
2. In this case no case has been filed to annul the marriage on the ground of absolute nullity; the claimant has filed a divorce case based on Article 166 TMK.
3. The claimant has a legal interest (Article 114/1-h HMK) in bringing the divorce case, and there is no statutory provision preventing the case from being heard.
4. For foreigners with no link to Turkish citizenship, documenting their identity and their marriage is sufficient to bring a divorce case; they cannot be expected to be registered in the Turkish civil registry.

On these grounds, the Regional Court of Appeal decision was set aside and the first-instance court decision was reversed; given the nature of the reversal, it was decided that the other grounds of appeal need not be examined for now. A legal representation fee of TRY 40,000.00 was awarded to the claimant, who was represented by a lawyer at the hearing. The task of the first-instance court is to treat the case as a divorce case based on Article 166 TMK, collect the evidence and decide on the merits.

The decision was given by a majority. The dissenting opinion takes the view that, in light of the evidence collected and the case file, the Regional Court of Appeal decision was lawful and should have been upheld.

🔍 What It Means in Practice

The decision clarifies several important points for foreign families living in Türkiye:

• Legal interest: That a marriage has a ground for nullity under Turkish law was not considered, on its own, enough to dismiss a divorce case on procedural grounds.
• A separate case for nullity: Absolute nullity takes effect only in a case filed for that purpose and by a judge's decision; the prosecutor's office or anyone with an interest may bring that case.
• No civil registry requirement: For foreigners with no link to Turkish citizenship, identity and marriage documents were accepted as sufficient.
• Weight of habitual residence: For spouses of different nationalities, long-term life in Türkiye was the basis for applying Turkish law to the divorce.

The decision draws one more distinction: had the marriage been "non-existent", the court could have taken this into account on its own motion in the divorce case and ruled that non-existence be confirmed. With nullity, the court has no such power. The category into which the defect in a marriage falls therefore directly shapes the course of the proceedings.

❓ Frequently Asked Questions

For detailed information and legal support, you can contact Savun Law & Consultancy. Contact details are on the contact page, and the other decisions in the series are in the Precedent DecisionsTR section.