Divorce is regulated in Article 161 of the Turkish Civil Code and its continuation.
It is the way to end the marriage by court decision.
There are six types of reasons for divorce regulated in our Civil Code. These are Adultery, Attempt on life, misbehaviour or indignity, Desertion, mental illness, and breakdown of marriage.
The grounds for divorce in Turkish Law are regulated as general and specific reasons for divorce in the Turkish Civil Code. In addition, the cancellation of the marriage may be in question in special cases. Lawsuits are seen as negotiated and adversarial. Adversarial litigation is a type of lawsuit that is concluded in a long process that contains divorce, custody, alimony, compensation and other factors are investigated deeply, witness statements are applied.
Issues related to the property regime are also the subject of a separate lawsuit and the process is also long. However, if the parties reach an agreement on the divorce, it is possible for them to get divorced by agreement. With the Consensual Divorce protocol, the parties must agree on custody, compensation, alimony, property regime and declare their will during the hearing.
Although the parties have agreed on all matters, it is possible for the judge to not accept the protocol and request amendments due to the fact that the marriage institution concerns the whole society and the public order and, if any, the best interests of the joint child must be observed.
It is possible for the Consensual Divorce to continue in a contentious manner due to reasons such as not meeting the conditions and changing the will of the parties.
The court in charge of divorce cases is the family court, and the competent court is the place of residence of one of the spouses or the place where the parties have resided in the last six months.
The legislator has granted the spouse, who has the right to file a divorce case, the right to open a divorce case or demand to separation if they wish to divorce
When a divorce or separation lawsuit is opened, the judge takes the necessary measures ex officio for the shelter of the spouses, the maintenance of the spouses, the management of the property, and the care and protection of the children.
In practice, it is seen that the parties put forward their alimony and measure requests together with the lawsuit petition, and the measures deemed appropriate are decided in interlocutory judgment in the notice of consent issued by the judge upon the examination of the petition.
In the divorce lawsuits, the parties can demand custody, financial compensation, alimony.
The lawsuit regarding the division of property is heard after the divorce decision is made and is recorded on a separate basis.
Proof of oath cannot be used in a divorce lawsuit. The judge freely decide all evidence and can collect evidence ex officio.
Contentious litigation; It is a type of lawsuit in which divorce, custody, alimony, compensation and other factors are deeply investigated and witness statements are used. The spouse who has been subjected to violence or who is at risk of being subjected to violence may request that her spouse be issued a restraining order based on Law No. 6284 while filing a lawsuit.
Matters regarding the property regime are the subject of a separate lawsuit. If the parties reach an agreement on the divorce and its matters and agree on the details of the liquidation of the property regime, it is possible to divorce by agreement. With the Consensual Divorce protocol, the parties are required to declare their will during the hearing that they have agreed on custody, compensation, alimony and property regime.
Divorce Grounds
Reasons for divorce in Turkish Law are regulated in Turkish Civil Code article 161 and its continuation. The law enumerates the special grounds for divorce, and then stipulates that the general grounds for divorce is breakdown of marriage.
1. Adultery
“Article 161- If one of spouses commits adultery, the latter may file a petition for divorce.
Right of action of the spouse entitled to file expires by elapsing six months commencing from discovery of the ground for divorce and in any case five years from commitment of adultery act.
Forgiving party shall not have right of action..”
2. Attempt on life, misbehaviour or indignity
“Article 162- Either of spouses may file a suit for divorce on the grounds of being attempted on his or her life or being treated in a manner of misbehaviour or indignity to him or her by the other Right of action of the spouse entitled to file expires by elapsing six months commencing from discovery of the ground for divorce and in any case five years from arising of that ground. *Forgiving party shall not have right of action.”
3. Commit a crime or living a dishonourable life
“Article 163- If one of spouses commits a humiliating crime or leads a dishonourable life and if it can not be expected to live with him or her together from the other spouse due to those reasons, that spouse may file petition for divorce at any time."
4. Desertion
“Article 164- In case one of spouses has deserted the other one with the purpose of not to perform his or her obligations arising from of marriage and not returned to joint residence without a just cause, separation has lasted at least six months and that situation still continued and notification which has been made by judge or notary upon request has failed;the spouse who has been deserted, may file a suit for divorce. The spouse who forced the other to leave joint residence and prevented him or her to return to joint residence without a just cause, is also deemed deserted.
Upon request of the spouse who has right to file action, judge or notary warns the spouse who has deserted in a legal warning issued without examining basis that he or she is required to return to joint residence within six months and about consequences to arise in case of being not returned. That legal warning is made through publication when necessary. However, it can not be made request for legal warning to file a divorce suit unless fourth month of given period expired and it can not be filed a suit for divorce unless elapsed two months after legal warning."
5. Mental illness
“Article 165- If one of spouses becomes mentally ill and the joint life becomes unbearable for the other for that reason,the other spouse may file a petition for divorce on condition that it has been determined impossiblity of its recovery through an official board of health report.”
In divorce cases, if the special grounds for divorce are not accepted, it is not possible to decide for divorce based on general grounds for divorce. For this reason, although there is a special ground for divorce in practice, the general grounds for divorce are also based. The decision of the Court of Cassation on this matter is presented below.
T.R. COURT OF CASSATION 2. Civil Chamber E. 2014/10558 K. 2015/2590 T. 24.2.2015
SUMMARY: The combined action of the defendant-counter plaintiff husband is based on the legal grounds for adultery regulated in Article 161 of the Turkish Civil Code. In accordance with Article 166 of the Turkish Civil Code, there is no case based on the grounds of breakdown of marriage. It is not possible to decide based on the general ground for divorce in a divorce case filed solely based on the specific ground for divorce. Because the judge is bound by the demand results of the parties. The evidence of the defendant-counter plaintiff male spouse should be evaluated within the framework of the lawsuit based on the cause of adultery and a decision should be made in accordance with the result.
When a divorce or separation suit is filed, the judge has to take the necessary temporary measures, in particular(ex officio), for the shelter of spouses, their livelihood, the management of the property, and the care and protection of children. In that case; Pursuant to articles 185/3 and 186/3 of the Turkish Civil Code, taking into account the economic and social conditions of the parties, an appropriate temporary alimony for the benefit of the plaintiff-defendant female spouse should be ruled.
The wife's claim for financial compensation relates to the price she allegedly sent the husband to buy a house.
On the other hand, the wife requested that the decision be made in the petition to determine that she is not indebted because of the bills signed through blackmail and threats. This request of the wife, which is a negative determination, is subject to proportional legal fee.
6. Breakdown of marriage
“Article 166- If of marriage has been broken down its foundation on a level that it can not be expected from spouses to keep leading joint life, either of spouses may file petition for divorce..
In cases mentioned in the paragraph above, if the fault of plaintiff is heavier, defendant has the right to raise objection to that lawsuit. Nevertheless, if that objection has the characteristics of abuse of a right and if there has not been any use in continuation of of marriage in respect of defendant and children, it may be decided to divorcement.
If the marriage lasted for at least one year, if the spouses apply together or one spouse accepts the other's case, the foundation of the breakdown of marriage is considered. In this case, in order for a divorce decision to be made, the judge must listen to the parties in person and conclude that their wills have been freely disclosed, and approve the regulation to be accepted by the parties regarding the financial consequences of divorce and the situation of children. The judge may make the changes she deems necessary in this agreement, taking into account the interests of the parties and children If these changes are accepted by the parties, divorce is decided. In this case, the provision that the parties' confessions will not bind the judge is not applied.
In the event that a decision is made to deny the case filed for any of the reasons for divorce and three years have elapsed starting from the date of finalization of this decision, if the joint life has not been established again for whatever reason, the marriage is considered to be fundamentally broken and a divorce is decided upon the request of one of the spouses.
The Court of Cassation decisions regarding divorce due to the breakdown of marriage are presented below.
In the verdict of the 2nd Civil Chamber of the Court of Cassation, 2016/7682 Basis, Decision number 2017/13334 and dated 27.11.2017:
“The divorce case filed by the plaintiff man was accepted by the court on the grounds that the parties were equally faulty; However, it is understood by the court that the plaintiff man does not say his mother-in-law responsible for the miscarriages attributed to the defendant woman as a fault, and that the witness statement regarding this is based on sensation.It is also understood that the defendant woman's request for independent housing, which she has put forward to agree with her husband, CANNOT be attributed to the woman as a fault. Another flawed act of the defendant requiring divorce was NOT PROVEN. While the case should be dismissed according to the actual situation, the decision to divorce on insufficient grounds by making a mistake in the appreciation of the evidence is against the procedure and the law and REQUIRED TO Reverse.” İfadelerine yer verilmiştir. “ Expressions are stated as seen.
In the verdict of the 2nd Civil Chamber of the Court of Cassation, 2016/7249 Basis, Decision number 2017/12684 and dated 14.11.2017:
“From the trials and the collected evidence, it is understood that the defendant man did not take care of his wife and children adequately, behaved irresponsibly, was negligent in fulfilling the duties of the and was therefore faulty. In that case, there is a conflict between the parties that will undermine the common life and will not allow the continuation of the . In the face of the flow of events, the plaintiff is right to sue. Since it is no longer legally possible to force the spouses to live together under these conditions, the rejection of the case on insufficient grounds was NOT CORRECT. ”
In the verdict of the 2nd Civil Chamber of the Court of Cassation, 2016/7105, Decision number 2017/12589 and dated 13.11.2017:
“Although the court has accepted that the plaintiff-counter-defendant man is more seriously faulty in the events that have broken the foundation of the marriage and the plaintiff-counter-defendant man has been dismissed, the divorce has been decided upon the acceptance of the woman's case; From the trial and the collected evidence, it is understood that the defendant-counter-plaintiff woman also insulted her husband by saying "You are not my equal, I married to become a citizen with you, snot ..., you can not be a father" and insulted her husband and, according to the witness's statement, battered her husband. According to this situation, the plaintiff-counter defendant is also right to file a lawsuit. So, instead of deciding to divorce with the acceptance of the man's case, the rejection of the case is not correct, it REQUIRED TO Reverse.”
In the verdict of the 2nd Civil Chamber of the Court of Cassation no 2016/338, Decision number 2017/5636 and dated 09.05.2017:
“It is understood from the investigation and the collected evidence that the defendant man did not work regularly and did not fulfill the duties of the . In this case, there is a conflict between the parties that will undermine the common life and not allow the continuation of the . In the face of the flow of events, the plaintiff is right to sue. Since it is no longer legally possible to force the spouses to live together under these conditions, the rejection of the case on insufficient grounds was NOT CORRECT.”
After the divorce case is finalized, it is not possible for the woman to get married immediately. The requirement to wait for 300 days is stipulated by law. However, it is possible to get married again if she proves that she is not pregnant by filing a lawsuit. Again, if she gives birth within a 300-day period, her period of waiting will end.