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

35  R. EMERJ, Rio de Janeiro, v. 22, n. 3, p. 9-68, Setembro-Dezembro. 2020  a divorce, which was obtained by the unilateral removal of the husband, was not validated (or more correctly: recognized) but subsequently by a judicial authority in which the spouse decla- red her consensus 126 . Contrary to public order it has been considered the recogni- tion of a foreign judgment, which was issued without any of the grounds for divorce under Turkish law (articles 161-166 Turkish Civil Code) 127 . Another issue is the parental care (velayet) of minors 128 . In many cases the assignment of parental responsibility is at the same time the divorce proceeding of child’s parents and the recognition of the foreign decision on marriage is often accepted, but not in the judgment on parental responsibility 129 . Thus, it has been held contrary to public policy to recognize and enforce a foreign deci- sion to resolve a marriage, in its part, which states that the parental responsibility of the minor children will be shared jointly by the two parents. Again, as in the case of consensual divorce, the deci- sions of the Turkish Court of Cassation are based on the fact that, as Turkish law does not recognize the joint exercise of parental res- ponsibility by divorced parents 130 , the execution of such a foreign decision is obviously contrary to the Turkish public order 131 . This view has also been strongly criticized by legal theory, arguing that the assignment of joint parental responsibility can not in any way be regarded as contrary to public order, let alone 126 In Turkish law there are the following six grounds for divorce: 1) adultery; 2) life impunity and ill treat- ment; 3) crime or elite life; 4) abandonment; 5) mental illness and 6) strong marital shock. For more details see: E. ŞAHİN, Aile Hukuku Davaları, Adalet Kitabevi, Ankara 2012, pp. 144ss. 127 Y. 2. HD 28.02.1989 E.859/K.1759, in Yargıtay Kararları Dergisi, 1989, pp. 1087ss. 128 Particular attention is needed on this issue, as in matters of parental responsibility, the relevant inter- national conventions signed by Turkey are in most cases implemented. 129 Z. AKICI, C.D. GÖYAYLA, Milletlerarası Aile Hukuku, Vedat Kitapçılık, İstanbul 2010, pp. 161ss, with reference in: Y. 2. HD 05.04.2004 E.3276/K.4252 and Y. 2. HD 02.04.2003 E.3784/K.4670 (Kazancı Hukuk Otomasyonu). 130 Article 336 of the new Turkish Civil Code: “(…) if the parents are married: 1.During the marriage, the father and the mother jointly exercise the parental responsibility of the child; 2.When the marriage is ter- minated or annulled, the judge may assign parental responsibility to one of the two parents (...) as regards the content of parental responsibility, it shall include article 339 (...)”. 131 Y. 2. HD 17.02.1997, in Yasa Hukuk Dergisi, 1997, pp. 739ss. Y. 2. HD 20.03.2003, in İstanbul Barosu Der- gisi, 2003, pp. 1004ss and Υ. 2. HD 22.11.2004 with minority, see: M. ŞİMŞEK, Aile Mahkemelerinin Görevine Giren Davalar Ve Yargılama Usulü, Vedat Kitapçılık, 2007, pp. 142ss.