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Tenfiz Davası

Taraflar yabancı bir mahkeme vasıtasıyla boşanmış olsalar bile bu kararın Türkiye sınırları içinde geçerli olabilmesi için Türk mahkemelerinde açılacak bir dava ile tanınmasına ve tenfizine karar verilmesi gerekmektedir. Bu makale etimesgut avukat olarak faaliyet gösteren Arca Hukuk ve Danışmanlık Ofisi tarafından kaleme alınmıştır.

Tanıma/Tenfiz Davası Nedir?

Tanıma ve tenfiz davaları, Milletler Arası Özel Hukuk ve Usul Hukuku Hakkında Kanun kapsamında düzenlenmiştir.
Bu Kanun’un 58. Maddesine göre Yabancı mahkeme ilâmının kesin delil veya kesin hüküm olarak yetkili Türk mahkemesi tarafından kabul edilebilmesine tanıma denir.
Bu Kanun’un 50. Maddesine göre Yabancı mahkemelerden hukuk davalarına ilişkin olarak verilmiş ve o devlet kanunlarına göre kesinleşmiş bulunan ilâmların Türkiye’de icra olunabilmesinin, yetkili Türk mahkemesi tarafından kabul edilmesine ise tenfiz denilmektedir.
Görüldüğü üzere tanıma ve tenfiz birbirinden farklıdır. Yabancı mahkeme tarafından verilen hükmün icra edilmesine ihtiyaç duyuluyorsa istemin tenfiz istemi olması gerekir. Fakat Yabancı mahkeme tarafından verilen kararın icra edilmesi istenmiyorsa, bu hüküm yalnızca kesin delil ya da kesin hüküm ihtiva ediyorsa bu durumda tanımadan söz etmek gerekir. Tanıma davası, mahiyeti itibariyle tespit davası niteliğindeyken tenfiz davası, eda davası niteliğindedir.
Bu bilgiler ışığından Yabancı Mahkeme kararı ile boşanan çiftlerin boşanma hükmünün Türkiye’de de geçerli olması istemi tanıma talebi yeterliyken, boşanma hükmünde nafaka, maddi-manevi tazminat, müşterek çocuklara dair velayet ve kişisel ilişkiye dair hükümler, mal rejiminin tasfiyesine dair alacak yahut herhangi bir şekilde icrai işlem tesisi gerektiren bir hükmün olması durumunda tenfiz isteminden söz etmek gerekecektir.

Tanıma/Tenfiz Davasında Görevli ve Yetkili Mahkeme

Tanıma ve tenfiz davalarında görevli ve yetkili mahkeme Milletler Arası Özel Hukuk ve Usul Hukuku Hakkında Kanun kapsamında düzenlenmiştir. Bu Kanun’un 51. Maddesinin 1. fıkrasında göretenfiz kararları hakkında görevli mahkeme asliye mahkemesidir. Fakat 4787 sayılı Aile Mahkemelerinin Kuruluş, Görev ve Yargılama Usullerine Dair Kanun’un 4/2. Maddesi atfı ile boşanma davalarına ilişkin olarak açılacak tanıma ve tenfiz davalarında görevli mahkeme aile mahkemesi olarak belirlenmiştir.
Yine Milletler Arası Özel Hukuk ve Usul Hukuku Hakkında Kanun’un 51. maddesinin 2. fıkrasına göre bu kararlar kendisine karşı tenfiz istenen kişinin Türkiye’deki yerleşim yeri, yoksa sâkin olduğu yer mahkemesinden, Türkiye’de yerleşim yeri veya sakin olduğu bir yer mevcut değilse Ankara, İstanbul veya İzmir mahkemelerinden birinden istenebilir.

Kimler Tanıma/Tenfiz Davası Açabilir?

Milletler Arası Özel Hukuk ve Usul Hukuku Hakkında Kanun’un 52. Maddesine göre Yabancı Mahkeme tarafından verilen kararın tenfiz edilmesinde hukukî yararı bulunan herkes, tenfiz isteminde bulunabilir. Tanıma ve tenfiz istemi dilekçe ile olur.

Tanıma/Tenfiz Davasının Şartları Nelerdir?

Milletler Arası Özel Hukuk ve Usul Hukuku Hakkında Kanun’un 54. Maddesine göre Yetkili mahkeme tenfiz kararını aşağıdaki şartlar dâhilinde verir:
a) Türkiye Cumhuriyeti ile ilâmın verildiği devlet arasında karşılıklılık esasına dayanan (mütekabiliyet şartı) bir anlaşma yahut o devlette Türk mahkemelerinden verilmiş ilâmların tenfizini mümkün kılan bir kanun hükmünün veya fiilî uygulamanın bulunması.
b) İlâmın, Türk mahkemelerinin münhasır yetkisine girmeyen bir konuda verilmiş olması veya davalının itiraz etmesi şartıyla ilâmın, dava konusu veya taraflarla gerçek bir ilişkisi bulunmadığı hâlde kendisine yetki tanıyan bir devlet mahkemesince verilmiş olmaması.
c) Hükmün kamu düzenine açıkça aykırı bulunmaması.
ç) O yer kanunları uyarınca, kendisine karşı tenfiz istenen kişinin hükmü veren mahkemeye usulüne uygun bir şekilde çağrılmamış veya o mahkemede temsil edilmemiş yahut bu kanunlara aykırı bir şekilde gıyabında veya yokluğunda hüküm verilmiş ve bu kişinin yukarıdaki hususlardan birine dayanarak tenfiz istemine karşı Türk mahkemesine itiraz etmemiş olması.
Yabancı Mahkeme kararının tenfizinin sağlanabilmesi için bu şartların hepsinin bir arada gerçekleşmesi gerekirken tanımada mütekabiliyet şartı aranmamaktadır.
Bununla birlikte tenfiz istemini kabulü veya reddi halinde kanun yoluna başvurulabilir. Tenfizine karar verilen yabancı mahkeme hükümleri ise, Türk mahkemeleri tarafından verilmiş kararlar gibi icra olunur.
Her iki dava da özü itibariyle teknik hususlar içerdiğinden, hak kaybına uğramamak için dava açmadan önce ofisimizin uzman avukatlarına başvurulması halinde en uygun çözüm tarafınıza iletilecektir.
Arca Hukuk ve Danışmanlık Ofisi

Arca Hukuk ve Danışmanlık Ofisi Ankara ili Etimesgut ilçesinde hukuki faaliyetlerine etimesgut avukat olarak devam etmektedir. Bu ve buna benzer güncel paylaşımlar için ofisimiz web sitesini takip edebilirsiniz. https://www.arcahukuk.com/
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UAE Judicial System Explained: Federal and Local Level
Introduction The judicial system of United Arab Emirates operates at two levels. It operates at a federal level and a local level. At the local level, the relevant Emirates have their own court system and judicial departments, whereas the judiciary at the federal level controls the courts and departments across the UAE. The degrees of courts which are available to the public (at both federal and local level), through which justice can be sought, are the following: 1) The Court of First Instance. 2) Court of Appeal. 3) Court of Cassation at the local level. The federal judiciary is headed by the Federal Supreme Court which is the highest judiciary authority in the UAE. According to Article 104 of the Constitution of the UAE, the local judiciary bodies in each Emirate shall have jurisdiction in all judicial matters that have not been entrusted to the Federal judiciary by virtue of the Constitution. Accordingly, Emirates like Dubai, Abu Dhabi and Ras Al-Khaimah follow their own local court system and have established their independent judicial departments. On the other hand, Emirates of Sharjah, Fujairah, Ajman and Umm Al Quwain are part of the Federal court system. A decision issued by the Court of First Instance, which is the primary court, may be appealed to the Court of Appeal. The judgement issued by the Court of Appeal could be further appealed to the Cassation Court or the Federal Supreme Court on limited grounds. Court of First Instance The Courts of First Instance have the right to consider civil, commercial, administrative, labour and personal status disputes. For criminal matters, the criminal courts (consisting of either 1 judge or 3 judges) will have jurisdiction to examine cases of misdemeanors, petty offenses and felonies. Court of Appeal The judgements and decisions issued by the Court of First Instance may be appealed before the Court of Appeal. Under Article 158 of the Civil Procedures Law, the appeal may be filed due to breach of the jurisdiction related to public policy, invalidity in the judgement or the procedures which has affected the judgment or decision, amongst others. For criminal matters, the accused and the public prosecution may appeal the judgement rendered by the criminal courts of first degree. In accordance with Article 230 of the Criminal Procedure Law, the appeal will not result in staying the execution of the appealed judgement unless otherwise decided by the court which issued it. Court of Cassation Appeal may be filed before the Cassation Court against the decision issued by the Court of Appeal in certain cases under 173 of the Civil Procedure Law. For instance, if the appealed judgment was based on breach of law or mistake in its interpretation or application, or was issued contrary to the rules of jurisdiction or the decision lacked reasons, had inadequacy or was ambiguous, amongst others. For criminal matters, public prosecution or the condemned party may challenge the decision rendered by the Court of Appeal in a felony or misdemeanour before the Cassation court on specified grounds as set out in Article 244 of the Criminal Procedure Law. These include where the challenged judgment is based on a violation of the law or a mistake in its application or interpretation, or if two contradictory judgments have been rendered on the same act, or if the judgment is void of any justification or if it is insufficient or obscure, etc. Special Courts Special courts have also been established under the UAE judicial system which deal with specific types of cases. These include labour courts, family courts, commercial courts, etc. These courts hear the matter which falls within their scope of expertise. Disputes to be heard by the Federal Supreme Courts According to Article 99 of the Constitution of the UAE, there are certain disputes which will have to be heard by the Federal Supreme Court. These include disputes between member Emirates or between an Emirate and the Federal Government, examination of the constitutionality of the Federal laws as challenged by an Emirate, interpretation of the provisions of the Constitution, crimes directly affecting the interests of the UAE including crimes relating to internal or external security, forgery of official records, etc., amongst others. Conclusion The UAE judicial system is proactive, effective and expeditiously tries to resolve matters, while continuing to serve justice to its people in a pragmatic manner. https://www.professionallawyer.me/legal-articles/civil-law/uae-judicial-system-explained-federal-and-local-level
Appeal Procedure Before UAE Courts
A decision issued by the Court of First Instance, which is the primary court, whether in a civil or criminal matter, may be appealed before the Court of Appeal. Grounds of Appeal in Criminal and Civil Matters The Court of Appeal may hear the appeal from the Court of First Instance on specified grounds. Under Article 158 of the Federal Law No 11 of 1992 (Civil Procedures Law), the following decisions may be appealed: 1) The decisions issued within the final quorum by the court of first instance, due to breach of the jurisdiction rules related to the public policy or because of the occurrence of an invalidity in the judgment or the decision or an invalidity in the procedures which has affected the judgment or the decision. 2) All the judgment or decisions within the final quorum may be appealed as well if the decision was issued in contradiction to a preceding judgment or decision not having acquired res judicata effect, and in such circumstance, the preceding decision shall be considered appealed by the force of law if it hasn’t become final when the appeal was filed. The appeal has to be filed within 30 days from the date of issuance of judgement under Article 159 of the Civil Procedures Law, unless the statute stipulates otherwise. 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Decisions of the Appellate Court & Further Appeal If the Court of Appeal deems that there is nullity in the judgment or procedures which affected the decision of the court of first instance, then it will cancel the decision under Articles 166 of the Civil Procedures Law and 242 of the Criminal Procedures Law. In criminal matters, it may re-judge the case, while in civil matters, it may decide the action it wants to pursue. The matter could also be returned to the court of first instance in some situations. The decision of the Court of Appeal may be further appealed to the Cassation Court. Under Article 173 of the Civil Procedures Law, an appeal may be filed before the Cassation Court in the following cases. * If the appealed judgment was based on breach of law or a mistake in its application or interpretation. * If a nullity in the judgement or in the procedures has affected the judgement. * If the appealed judgement was issued contrary to the rules of the jurisdiction. * If the dispute was adjudicated contrary to another decision which was issued in the same subject-matter among the same litigants and acquired the force of res judicata. * The decision’s lack of reasons, inadequacy or its ambiguity. * If the decision has ruled for matters not requested by the litigants or more than that requested by the litigants. In criminal matters, the final judgments rendered by the Court of Appeal in a felony or misdemeanor may also be appealed before the Cassation Court on the grounds mentioned in Article 244 of the Criminal Procedures Law. These grounds are explained below. * In case the challenged judgment is based on a violation of the law or a mistake in its application or interpretation. * If the judgment is void or there is a nullity in the procedures affecting the judgment. * If the court has adjudged the civil claim in excess of the amount claimed. * If the judgment is void of any justification or if it is insufficient or obscure. * If two contradictory judgments have been rendered on the same act. Under Article 256 of the Criminal Procedures Law, a public prosecutor will either, directly or upon a written request of the minister of Justice, challenge the final judgments, regardless of the court that rendered it, before the Cassation Court, where the challenge is based on a violation, misapplication or misinterpretation of the law, in the following cases. Judgments which the law does not allow the parties to challenge. Judgments in which parties have relinquished their right to challenge or have filed one but it was not accepted. Conclusion The procedure explained gives a broad overview of the process to be followed when a decision issued by the lower courts is challenged. In all such instances, it is crucial that experienced lawyers who have extensive skill and expertise to deal with these matters are hired, who can take on such cases and help in getting optimal results. https://www.professionallawyer.me/blog/civil-law/appeal-procedure-before-uae-courts/
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Easy divorce in Washington
Contrary to what you might have heard, the state of Washington offers easy divorce. If you've been married for any length of time, you're probably aware that it can be an expensive and difficult process. However through the collaborative process of divorce, two yeilding, self-aware individuals can find a way to get through this litigation upheaval in a more positive, and less adversarial manner. Washington has recently made it easier for married couples to get divorced. This is good, in a way, because easy divorce was long overdue. The inherent risks of marriage are much greater than the government was letting on. Anyone who's ever been married and then gotten divorced knows that it takes an enormous amount of work to make a long-term marriage work out. Too many people never realize this, because they don't have the right frame of reference -- they're too young, for one thing. But Given the choice, most people would rather pay less in taxes than more, and we should follow their lead. Under existing law, filing for an "online divorce" is the best way to do just that. Get divorced in Washington Washington is a place for people to get married but also to get divorced. When I tell people about my research into divorce they offer to help. They send me printouts from state government websites and emails from friends. It turns out everyone has a story about a friend of a friend who got divorced in Washington. The right way to look at divorce is through the eyes of both spouses. The law should be based on what is right for them, not on what makes things easier for lawyers. And it should give them the same thing no matter which of them filed first. This isn't how our laws work, as I discovered when I took on this project. We have a lot of outdated laws, including one that dates back to 1891. Normal people think Washington state has an easy divorce law.  They are wrong.  On December 5th, 2016, I filed for divorce.  The judge granted the divorce on August 1st 2017.  That's more than six months this country promises to give people to resolve matters in a reasonable amount of time. Washington's no-fault divorce Two years ago in Washington state, the legislature passed what was then a radical and innovative law giving people—or, at least people in long-term marriages—the option of an easy route out of broken marriages. If you and your spouse agree on a division of property and debts, and you can certify that the marriage is irretrievably broken, either party can file for divorce in just 90 days. Washington's no-fault divorce law makes it easy to get a quick divorce. Consequently, most divorces in Washington are for reasons of "irreconcilable differences" rather than infidelity or abuse. For many years, Washington State has had a law that allows an easy divorce process for couples who have no children and are splitting up their property. But lately, even some childless couples are feeling hurt from this law. There's been a noticeable increase in the number of petitions for what's called 'no-fault' divorce. How long to wait to file for a divorce or dissolution of a civil union? Here are the requirements for Washington State. And read my easy divorce blog post here . Ending a marriage is getting easier and easier not just in Washington, but in many other states as well. The reasons for this trend are multiple, but there's a common denominator: money. The simplest way to get out of a marriage is to separate. (And separation has been generally been no-fault since the 1960s.) When one person tries to force another person out of a marriage against the wishes of the other, it might involve court battles for years. " if the parties are able to come up with a completely agreeable way of dividing up their shared assets and liabilities in a way that works for both of them, they should be able to file for an uncontested divorce.
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DIVORCE SPELLS – Dr. Mika Tera Stops a Divorce or Separation
No one goes into a relationship expecting to separate or struggle through the painful emotions of a divorce. Such emotional trials may perpetuate negative energies in those involved in the disintegration of a relationship. The spell to possibly stop separation and divorce is designed to try and prevent these negative energies from engulfing a relationship and may protect the marriage or relationship from breaking apart. Divorce rituals are also designed for those in marriages which can't go further, where divorce is the only solution. However, divorce can be such a messy affair leading to lots of emotional stress and taking its toll on you, your future, and your happiness Don’t feel shy to contact me if you have an issue you want to solve. Please do send me a message to be helped. Dr. Mika Tera is waiting for your call or Text. Let me solve your problems. You can call or Whatsapp +27631488042 Email: info@lovepowerfulspells.com
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In divorce proceedings, text messages could have a significant impact on custody and visitation determinations. Statements made in text messages might include language about illegal activities, physical threats, or other matters that could give a spouse ammunition to seek a restraining order or ask the court to amend custody, visitation, and support orders. Continue Reading Here: Are Text Messages Admissible in Court?
How does divorce affect children?
Divorce is not an easy process to go through as a family. However, sometimes divorce becomes a necessity for the couple, as they may have reached a crossroads in their marriage and it might be better for both of them to separate. Adults going through a divorce process have to adapt to new changes which include taking numerous decisions relating to financial and emotional aspects. This process is even more difficult for children, especially when they are very young. At a tender age, children are not able to understand the new changes that arise from the fundamental fact that they will not be able to live with both parents as one family. Therefore, children must adapt to the immediate change of living with one parent alone and seeing the other parent only occasionally during the designated visit time. It becomes even more difficult when a parent decided to emigrate and thus permanently moves out of the country of residence of the children, which leads to even fewer personal visits. Emotionally, all these changes take a toll on the child's psyche and parents must strive to make the transition as cordial and friendly as possible. Studies show that a divorce process can have the following effects on children, depending on their age: For toddlers and preschoolers: because they are so young, children do not understand the need to be permanently separated from one parent. The concept of two houses can fill children with worry and fear. They feel anxious when they are not able to be with both their parents and can quite often feel that they are not loved by the absent parent. For children of primary school age: A divorce process can cause them stress and anxiety and often makes them feel guilty about the changes it brings. Children of this age group often think of guilt and may feel that the divorce is due to their mistakes or shortcomings. Research shows that children are often the most affected by contentious divorces, which can be reflected in increased behavioral problems, poor academic performance and also in children's mental health. Children need to adapt to the new changes, and one of the best ways is to keep up with a regular visit schedule and provide them with easy access to both parents that suits their needs. A regular schedule helps to bring a needs-oriented structure into their lives, and children might understand that both parents regularly prioritize their needs. Parental support and reassurance can avoid many of the likely challenges, especially if parents can put their children's needs before anything else. Parents should also consider seeking the expert help, which can include medical and psychological support in helping their children. Solving anxiety problems through professional help has proven to be of great value to children. An expert is often able to identify the cause of a problem rather than focus on the behavioral issues alone, and can help the parents to understand better and guide them in helping their children cope with such challenges.