Press Release No: Individual Application 69/20
Press Release concerning the Judgment Finding a Violation of the Right to Marry due to the Failure to Notify the Divorce Decree to the Spouse Abroad
On 8 September 2020, the First Section of the Constitutional Court found a violation of the right to marry, safeguarded by Articles 20 and 41 of the Constitution, in the individual application lodged by S.A. (no. 2017/40199).
The applicant filed for divorce from her Tanzanian husband as they had been already separated for so long and could not maintain their conjugal life. On 21 February 2003, the incumbent civil court granted the divorce.
The civil court issued a writ to the Ministry of Justice (“the Ministry”), seeking the notification of the divorce decree to the defendant who was in his country of origin. The applicant submitted petition to the civil court several times and asked for the outcome of the notification process. In the letter of 27 March 2007, which was sent by the Ministry of Foreign Affairs to the Ministry, it was stated that the relevant document was to be re-sent for not being available in the records. Thereafter, the applicant requested re-submission of the relevant document to the Ministry of Foreign Affairs.
She also provided all information requested from her in the subsequent period to the relevant authorities. In the letter issued by the Ministry of Foreign Affairs on 15 January 2016, it was informed that although the request had been submitted several times to the relevant ministry of the respondent country, any reply had not been taken and was no longer expected due to systemic problems in the country. The applicant then lodged an individual application with the Court as the divorce decree could not be finalised.
The Applicant’s Allegations
The applicant maintained that her right to marry had been violated due to the failure by the authorities to notify the divorce decree to her husband abroad and thereby to revise her civil registries in line therewith.
The Court’s Assessment
In cases where the administrative and judicial authorities fail to take the steps reasonably expected from them to conclude the divorce proceedings within a reasonable time and to eliminate the reasons posing an obstacle to the marriage of individuals, the very essence of the right to marry would be impaired, which would thereby entail the violation of the said right.
In the present case, the outcome of divorce proceedings could not be notified to the defendant for his not being in Turkey. Therefore, the applicant’s marital status could not be changed, despite 17 years having elapsed since the date of divorce decree, due to the non-completion of the finalisation process.
The applicant performed the actions requested by the civil court in a swift and complete manner and pursued the process rigorously.
The attempts by the Ministry of Foreign Affairs in the applicant’s case remained inconclusive due to the system operating in Tanzania and the deficiency in the defendant’s address. However, regard being had to the official correspondences issued within the impugned process, it has been observed that these attempts dated back not to 2004, the date when the divorce decree to be notified was submitted, but to 2007.
It has been also observed that the applicant’s requests for the application of alternative legal means, namely notice by publication -which is explicitly laid down in Law no. 7201 and the relevant Regulation- with a view to ensuring finalisation of the divorce decree issued in 2003 were not taken into consideration by the inferior courts. Besides, no assessment was made as to the petitions of 2010 and 2015, which had been submitted to the same end.
In this sense, the Court has considered that there was procrastination in the processes needed to be completed for the finalisation of the decree issued at the end of the divorce proceedings; and that the inferior courts failed to show due diligence and attention in applying the practice of notice by publication, a substantial legal means. Therefore, in the processes regarding the finalisation of the divorce decree, the due diligence obligation was disregarded to the extent that would impair the very essence of the right to marry, and the necessary steps could not be taken within a reasonable time.
Consequently, the Court has found a violation of the right to marry.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.