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

 R. EMERJ, Rio de Janeiro, v. 22, n. 3, p. 9-68, Setembro-Dezembro. 2020  34 order by the recognition of a divorce that does not meet the requi- rements of Turkish law and is therefore disappointed 121 . These decisions were strongly criticized by most of the legal theory, which rightly observed that the reasons for those decisions were in full measure with Turkish Code of Private In- ternational and Procedural Law provisions on the recognition and enforcement of foreign judgments. This view was initially followed by a small part of the jurisprudence 122 , but the complete conversion was made when the possibility of consensual divorce was introduced in Turkish family law 123 . A very interesting issue is also the recognition of divorces issued in Muslim countries 124 with the implementation of Sha- ria 125 . As for divorce, Muslim law allows the spouse to “relin- quish” his spouse by pronouncing the word “talak” three times before adult witnesses, thus finally resolving the marriage. The problem arising from the recognition of foreign marriage resolu- tions with talak consists in opposing this institution to the prin- ciple of equality enshrined in the Turkish Constitution in art. 10 as the husband can unduly repudiate the spouse regardless of his or her own consent, while the spouse is only entitled to di- vorce under certain conditions. It has been ruled that it is clearly contrary to the Turkish public order to recognize a talak divorce which was taken without the spouse being asked about her de- sire to continue or terminate the marriage, as this constitutes a blatant opposition to the principle of fair trial and equality of the law enshrining both the Turkish Constitution and the European Court of Human Rights. On the other hand, the recognition of 121 Y. 2 HD 02.03.1990, in İlmi Ve Kazai İçtihatlar Dergisi, 1990, pp. 358. 122 Y. 2 HD 25.06.1986 E 3520 E. 5471 (Kazancı Hukuk Otomasyonu) with the opposite minority. 123 Initially by amending article 134 of the old Turkish Civil Code with Law 3444/1988, which many Courts refused to implement it as unconstitutional, a matter finally resolved by the decision of the Turkish Constitutional Court n. 43/1997 and now with article 130 of the new Turkish Civil Code introduced in 2001. See in particular: E. NOMER, Devletler Hususi Hukuku, op. cit., pp. 492ss. 124 It is well known that Turkey, although the vast majority of its population is Muslim, is a secular (laik) state (article 2 of the Turkish Constitution) has adopted a family law based on the corresponding Swiss which certainly has nothing to do with muslim law, which looks alien to the Turkish legal world. 125 R.W. HEFNER, Shari’a politics: Islamic law and society in the modern world, op. cit., N. ABIAD, Sharia, Muslim States and international human rights treaty obligations: A comparative study, ed. British Institute of International and Comparative Law, 2008, pp. 98ss.