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Changing Connecting Factors in Turkish Private International Law: An Analysis of Article 3 of Law No. 5718

I. Introduction

Conflict-of-laws rules identify the law applicable to a private-law relationship through particular connecting factors. Depending on the subject matter, these may include nationality, domicile, habitual residence, the location of property, or other legally relevant connections.

Some connecting factors can change over time. A person may change nationality, establish a new domicile, or establish a new habitual residence. If one of these factors changes, the court must determine which point in time is relevant for identifying the applicable law.

Article 3 of MÖHUK provides the general rule for this question where the relevant connecting factor is nationality, domicile, or habitual residence.^[2]

II. The Rule under Article 3

Article 3 provides:

“Yetkili hukukun vatandaşlık, yerleşim yeri veya mutad mesken esaslarına göre tayin edildiği hâllerde, aksine hüküm olmadıkça, dava tarihindeki vatandaşlık, yerleşim yeri veya mutad mesken esas alınır.”

Translated as:

Where the applicable law is determined on the basis of nationality, domicile, or habitual residence, unless otherwise provided, the nationality, domicile, or habitual residence existing on the date on which proceedings are commenced shall be taken as the basis.^[3]

Article 3 therefore concerns the timing of the connecting factor. It does not itself determine which country’s substantive law governs a particular dispute. Instead, where another conflict-of-laws rule uses nationality, domicile, or habitual residence to identify the applicable law, Article 3 determines which point in time is relevant.

For example, if the relevant MÖHUK provision refers to a person’s national law and that person’s nationality changes before proceedings are brought, Article 3 generally requires the nationality existing on the commencement date of the proceedings to be used, unless a specific provision establishes another relevant date.^[4]

Article 3 does not create the connecting factor. It determines its relevant point in time.

III. Changing Connecting Factors and “Mobile Conflicts”

Article 3 is titled “Değişken İhtilâflar” and addresses what may be described in private international law as changing connecting factors or “mobile conflicts.”^[5]

The issue arises because the connecting factors covered by Article 3 are capable of changing. Nationality can change, domicile can move, and habitual residence can shift from one country to another.

Feriha Bilge Tanrıbilir explains that Article 3 determines which moment should be taken into account where the applicable law is identified through nationality, domicile, or habitual residence. Both former Law No. 2675 and Law No. 5718 adopt, as the general solution, the relevant connecting factor existing when the proceedings are commenced.^[6]

The function of the rule is therefore straightforward: when one of the specified connecting factors changes, Article 3 provides the reference date needed to continue the applicable-law analysis.

IV. The Scope and Limits of Article 3

Article 3 is not a general timing rule for every connecting factor used in MÖHUK.

Its wording specifically refers to three factors:

• nationality (vatandaşlık);
• domicile (yerleşim yeri); and
• habitual residence (mutad mesken).^[7]

Other conflict-of-laws provisions may use different connecting factors or expressly determine the point in time at which the relevant connection must be assessed.

Article 3 itself recognizes this possibility through the words “unless otherwise provided” (aksine hüküm olmadıkça). The commencement-date rule is therefore a general rule rather than an absolute one.

MÖHUK contains provisions fixing a different relevant date. Article 12(1), for example, subjects capacity and substantive conditions for engagement to marry to each party’s national law at the time of engagement. Article 13(1) uses each party’s national law at the time of marriage for capacity and substantive conditions for marriage, while Article 20(5) determines testamentary capacity according to the person’s national law at the time the testamentary disposition was made.^[8]

These provisions illustrate the significance of the phrase “unless otherwise provided.” Where MÖHUK expressly fixes another relevant date, the specific provision applies instead of Article 3’s general commencement-date rule.

V. Legislative Continuity from Law No. 2675

Article 3 continues the substantive temporal approach contained in former Law No. 2675.

The legislative reasoning states that Article 3 partly corresponds to Article 3 of the former law and explains that, without changing the substance of the provision, the term “ikametgâh” was replaced with “yerleşim yeri” in order to align the terminology with the Turkish Civil Code.^[9]

The continuity of this temporal approach is also visible in case law under the former legislation. In Yargıtay 2. Hukuk Dairesi, E. 2006/16427, K. 2007/5497, T. 03.04.2007, the parties had previously been Turkish citizens but had lost Turkish nationality before the divorce proceedings were commenced. Applying former Law No. 2675, the Court of Cassation held that the parties’ nationalities at the commencement date of the proceedings had to be determined and that, if they held different nationalities, their common domicile and, failing that, their common habitual residence had to be investigated in order to identify the applicable law.^[10]

The decision is significant from a historical perspective because the parties’ nationality had actually changed before the proceedings were commenced. It therefore illustrates the practical problem created by changing connecting factors and the need for a temporal reference point. Although the decision did not apply Article 3 of Law No. 5718, it demonstrates the temporal approach that was carried forward into the present legislation.

VI. The Article 3 Temporal Rule in Case Law under Law No. 5718

The temporal principle embodied in Article 3 can also be observed in the case law applying Law No. 5718. A particularly relevant example is Yargıtay 2. Hukuk Dairesi, E. 2008/13706, K. 2009/16045, T. 28.09.2009, concerning divorce proceedings between Austrian nationals.

The Court of Cassation held that the applicable foreign law had to be determined by reference to the parties’ nationality at the commencement date of the proceedings, stating that the court should determine the applicable foreign law “tarafların, dava tarihindeki vatandaşlıkları esas alınarak.” It further required the content of that foreign law to be established and applied rather than Turkish law being applied without the necessary conflict-of-laws analysis.^[11]

The decision is particularly relevant to Article 3 because nationality operates as the connecting factor under the conflict rule governing divorce, while the Court expressly identifies the commencement date of the proceedings as the point in time at which nationality is to be assessed. The judgment does not expressly cite Article 3; its reasoning expressly refers to other provisions of Law No. 5718. It should therefore not be presented as an express interpretation of Article 3. Rather, it reflects the same temporal rule: where nationality is used to determine the applicable law, the relevant nationality is the one existing when the proceedings are commenced.

VII. Practical Significance

Article 3 addresses the point in time at which certain connecting factors must be assessed when determining the applicable law. For nationality, domicile, and habitual residence, the general rule is that the relevant connecting factor is the one existing on the date on which proceedings are commenced, unless MÖHUK provides otherwise.^[12]

The rule must nevertheless be applied together with the specific conflict-of-laws provision governing the underlying issue. Article 3 does not determine the applicable law independently, nor does its commencement-date rule override provisions that expressly establish another relevant point in time.

VIII. Conclusion

The analysis therefore requires two separate questions:

(1) Which connecting factor does the relevant MÖHUK provision use?

(2) At what point in time must that connecting factor be assessed?

Where the answer to the first question is nationality, domicile, or habitual residence and no specific provision establishes another date, Article 3 answers the second.

Article 3 therefore provides a general temporal rule for nationality, domicile, and habitual residence while preserving specific MÖHUK provisions that establish a different relevant date.

Notes

1. [1] Law No. 5718 on Private International Law and International Civil Procedure (“MÖHUK”), Art. 3, Resmî Gazete, 12 December 2007, No. 26728. ↩
2. [2] MÖHUK, Art. 3. ↩
3. [3] MÖHUK, Art. 3. The English wording used in this article is a working translation of the authoritative Turkish statutory text. ↩
4. [4] MÖHUK, Art. 3. ↩
5. [5] MÖHUK, Art. 3, statutory heading: Değişken İhtilâflar. ↩
6. [6] Feriha Bilge Tanrıbilir, “5718 Sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanunun Genel Hükümlerinde Yapılan Değişiklikler Üzerine,” Türkiye Barolar Birliği Dergisi, No. 87 (2010), pp. 195–227. ↩
7. [7] MÖHUK, Art. 3. ↩
8. [8] MÖHUK, Arts. 12(1), 13(1), and 20(5), as published in the Resmî Gazete, 12 December 2007, No. 26728. ↩
9. [9] Türkiye Büyük Millet Meclisi (TBMM), Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun Tasarısı ve Adalet Komisyonu Raporu (1/337), S. Sayısı: 47, Dönem 23, Yasama Yılı 2, Article 3 legislative reasoning (madde gerekçesi). The reasoning states that Article 3 partly corresponds to Article 3 of former Law No. 2675 and that, without changing the substance of the provision, the term ikametgâh was replaced with yerleşim yeri to ensure consistency with the terminology of the Turkish Civil Code. ↩
10. [10] Yargıtay 2. Hukuk Dairesi, E. 2006/16427, K. 2007/5497, T. 03.04.2007. The decision was rendered under former Law No. 2675 and is cited here as evidence of historical continuity in the temporal treatment of changing personal connecting factors. ↩
11. [11] Yargıtay 2. Hukuk Dairesi, E. 2008/13706, K. 2009/16045, T. 28.09.2009. The judgment applies Law No. 5718 and determines the applicable foreign law by reference to the parties’ nationalities at the commencement date of the proceedings; it does not expressly cite Article 3. ↩
12. [12] MÖHUK, Art. 3. ↩

Selected Bibliography

1. Tanrıbilir, Feriha Bilge, “5718 Sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun’un Genel Hükümlerinde Yapılan Değişiklikler Üzerine,” Türkiye Barolar Birliği Dergisi, No. 87 (2010), pp. 195–227.
2. Law No. 5718 on Private International Law and International Civil Procedure (MÖHUK), adopted 27 November 2007, Resmî Gazete, 12 December 2007, No. 26728, particularly Arts. 3, 12(1), 13(1), and 20(5).
3. Türkiye Büyük Millet Meclisi (TBMM), Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun Tasarısı ve Adalet Komisyonu Raporu (1/337), S. Sayısı: 47, Dönem 23, Yasama Yılı 2, Article 3 legislative reasoning (madde gerekçesi).
4. Yargıtay 2. Hukuk Dairesi, E. 2006/16427, K. 2007/5497, T. 03.04.2007.
5. Yargıtay 2. Hukuk Dairesi, E. 2008/13706, K. 2009/16045, T. 28.09.2009.