Revista da EMERJ - V. 22 - N.3 - Setembro/Dezembro - 2020

27  R. EMERJ, Rio de Janeiro, v. 22, n. 3, p. 9-68, Setembro-Dezembro. 2020  Pursuant to articles 411 and 419 of the Turkish Civil Code 85 the appointment of the co-defendant and the supervision of legal as- sistance shall be made by the Court of the place of residence of the assisting party, whereas art. 462 86 states that, for the acts refer- red to in that article the authorization of that Court is required. Thus, it has recently been decided 87 that a foreign decision on legal assistance can not be recognized in Turkey, as the reference in art. 10 par. 3 to mandatory application of Turkish law was con- sidered to include not only substantive but also procedural law. In support of the statement of reasons, it is argued that for each act of support referred to in art. 462 of Turkish Civil Code, a new decision should be issued by the foreign Court and then the procedure for its recognition in Turkey is followed. However, both this “practical” reflection of the Turkish Court of Cassation and the interpretation for the application of art. 10 par. 3 are anything but a legal basis, which, in our opinion, was rightly criticized by the minority view in the judgment which supported the recognition of the foreign one, considering that art. 10 par. 3 is a rule that simply indicates the ap- plicable law and not the basis of exclusive jurisdiction 88 . On the contrary, there is no exclusive jurisdiction of the Turkish Courts to resolve marriage by divorce 89 , so that recogni- tion of a foreign divorce decree is not impeded even if both the last joint residence of the spouses 90 and the defendant’s domicile are in Turkey 91 . 85 I. YILMAZ, Islamic family law in secular Turkish Courts, in E. Giunchi, Adjudicating family law in Muslim Courts, ed. Routledge, 2013. 86 M. AKIF AYDIN, Family law in Turkey: The Journey form islamic law to secular law, in A. Singer, M. Jänterä-Jareborg, A. Schlhytter, Family-religion-ratt, ed. Justus Förlag, 2010, pp. 164ss. 87 Plenary Civil Divisions of Cassation Court (Y. HGK) 08.07.2009 E.255/K.527, in Yargıtay Kararları Der- gisi, 2010, pp. 998ss. 88 C. ŞANLI, E. ESEN, İ. ATAMAN-FIGANMEŞE, Milletlerarası Özel Hukuk, Istanbul: Vedat 2014, pp. 352ss. 89 Turkish government has introduced a bill numbered 1/698 and dated 01.04.2016 concerning Turkey’s accession to the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (“Hague Convention”), signed by the Prime Minister and all ministers. 90 Turkish government has introduced a bill numbered 1/697 and dated 30.03.2016 concerning Turkey’s accession to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co- -operation in Respect of Parental Responsibility and Measures for the Protection of Children (“Hague Con- vention”), signed by the Prime Minister and all ministers. In particular: “(...) the Government bill regarding the approval of the ratification of the Hague Convention is referred to the Committee on Foreign Relations as primary committee which shall go through the law making process. If enacted, Turkey’s accession to the Convention will be an important step forward in the area of Turkish family law in terms of facilitating the protection of children in international situations, avoiding conflicts between multiple jurisdictions, applica- ble law and recognition and enforcement of measures for the protection of children (...)”. 91 Z. AKICI, C.D. GÖYAYLA, Milletlerarası Aile Hukuku, Vedat Kitapçılık, İstanbul 2010, pp. 50ss.