Marriages commence amidst grand hopes and celebratory fervor. Nevertheless, they occasionally deviate from their intended course. In this case, spouses may decide to end their marriage. The number of divorce cases increase day by day in Turkey. This article aims to provide information regarding the questions that we encounter quite frequently within the scope of divorce cases in practice.
What is Divorce?
Divorce, at its core, is the legal termination of a marriage. The marriage ends with the finalization of the decision issued at the end of the divorce lawsuit initiated by one or both spouses at the Family Court during their health.
According to our law, divorce proceedings can be filed in two ways. The first is an uncontested divorce action and the second is a contentious divorce action.
What is an Uncontested (Agreed) Divorce?
When the spouses mutually agree on the consequences of the divorce and decide to end their marriage, the uncontested divorce action applies. The parties initiating this legal procedure must have reached a consensus on alimony, custody and – if there is a demand – all compensatory aspects encompassed within the divorce action (subsidiaries of the divorce). There is no obligation for the spouses to have reached a common settlement regarding the division of the property acquired during the marriage (division of property regime). In practice, the spouses usually set out the issues regarding the division of the property regime in the uncontested divorce protocol.
To initiate an uncontested divorce action, the following conditions must be fulfilled:
- The marriage duration should be a minimum of 1 year,
- Both spouses must jointly apply to the court, or one spouse should accept the lawsuit initiated by the other,
- An uncontested divorce protocol, addressing mutually agreed-upon issues, must be signed by both parties,
- Both spouses must be present at the hearing.
Either party holds the right to unilaterally renounce the uncontested divorce protocol until the finalization of the decision granted within the uncontested divorce action.
What is a Contested Divorce?
In cases where one spouse opposes the divorce or an agreement on the legal consequences of the divorce cannot be reached, a contested divorce action must be initiated for the dissolution of the marriage. Contested divorce cases are far more prolonged proceedings compared to uncontested divorce cases. The marriage continues throughout the duration of these proceedings.
Unlike uncontested divorce actions, the spouses can file a contested divorce action at any time.
Contested divorce actions can be based on either general grounds or specific grounds as determined by the law. We would like to emphasize that it is not possible to file a contested divorce action except for the cases stipulated in the law. These grounds are explained in the following.
What is a General Ground for Divorce?
The general ground for divorce is the irremediable breakdown of the marriage. The breakdown of the marriage signifies the dispute or conflict between the spouses that has made it difficult or even impossible for the spouses to carry on their marriage. Essentially, the issues between spouses must be so severe that at least one of them finds it unfeasible to continue a shared life. Situations such as severe dissension and character incompatibility between the spouses can be cited as an example of the breakdown of the marriage.
Another reason for divorce based on the breakdown of the marriage is the failure of establishing a common life (failure to maintain marriage).
In the event a divorce action initiated by the spouses is rejected for any reason and the decision was finalized, there exists a 3-year prohibition on initiating a new divorce action as a general rule. One of the spouses should initiate a new divorce action after 3 years due to the inability to establish a common life, it is acknowledged that an irreparable breakdown of the marriage is evident, thus leading to the grant of divorce.
What are the Special Grounds for Divorce?
- Adultery
Adultery occurs when one spouse willingly and knowingly engages in sexual intercourse outside of the marriage.
In divorce proceedings related to adultery, the case can be accepted upon a single instance of proven adultery. It's important to note that even if the spouses live separately due to the separation decision, since the marriage is still legally valid, the sexual activity by one party constitutes adultery.
The burden of proof in adultery rests on the spouse who claims the allegation of adultery. If adultery is proved, the judge must decide on divorce. Crucially, evidence presented to substantiate the claim must be obtained through legal means. One commonly encountered question pertains to proving adultery through hiring a detective. In our law, detective work is not legal. For this reason, evidence obtained in this manner is not valid. In this case, the evidence in question will be deemed invalid and unlawfully and using such evidence can lead to legal consequences for the spouse who used it.
A divorce action on grounds of adultery must be initiated within 6 months and in any case within 5 years following the discovery of the adultery.
It is not possible for the party who has pardoned the adultery to file a divorce on this ground. The act of continuing the marriage by the non-adulterous spouse after the learning of the adultery is generally considered forgiveness. However, if the adultery causes in severe dissensions despite the forgiveness, the parties can always initiate a divorce on the grounds of the irremediable breakdown of the marriage.
- Attempt on Life, Cruel, Inhuman or Degrading Treatment or Behavior
If any of these three circumstances are proven, the judge is compelled to rule in favor of divorce.
In order to claim an attempt on life, one of the spouses must have tried to murder the other spouse (attempt) or directed/assisted the other spouse to commit suicide.
Physical attack on the body integrity and well-being of the other spouse by one of the spouses is considered as cruel and inhuman treatment. These acts need not be continuous, even a one-time attack is sufficient for the existence of a cruel treatment. Additionally, such actions must be intentional (knowingly and willingly) on the part of the spouse. The Court of Cassation considers physical violence as a form of cruel and inhuman treatment.
Degrading behavior, on the other hand, is considered as an unfair attack on the honor of the other spouse by one of the spouses. Acts such as insult and humiliation are considered as examples of this behavior.
The affected spouse must initiate a lawsuit within 6 months from learning of this circumstances, and in any case, within 5 years from the occurrence. If the affected spouse forgives these actions, the right to file a lawsuit based on these grounds will no longer exist. However, as stated above, the right to file a lawsuit based on general grounds is always maintained.
- Committing a Defamatory Offence and Leading a Life Without Dignity
In divorce cases based on these two grounds, the judge makes decision after evaluating the evidence presented. In other words, the judge is not obliged to rule for divorce if it is proved as in the special cases mentioned above.
Regarding the defamatory offence, a common misconception in practice is to assess it based on the sentence imposed for the offence. However, in divorce cases, the primary consideration is whether the offense is deemed humiliating within the context of societal norms. Examples of such offences include bribery, extortion, and rape. Lastly, we would like to remind that the defamatory offence must have occurred after the marriage.
According to the criteria of the Court of Cassation, leading a life without dignity is defined as behaviors that are degrading, have a negative impact on those who see them and are not welcomed by everyone. The Court of Cassation accepts drinking alcohol at the level of inebriety, gambling, and being addicted to drugs within this scope. At this point, it should be noted that in order to refer to leading a life without dignity, the individual must have adopted and continued this lifestyle.
- Abandonment
Abandonment occurs when one spouse has effectively terminated the shared life, signifying a deliberate departure from the marital residence. In order to file a divorce action based on abandonment, certain preconditions are required. These are:
- The abandoning spouse must vacate the common residence with the intention of evading marital responsibilities.
- The abandonment must last for at least 6 months without interruption. Brief, insincere visits followed by departure do not qualify as interruptions.
- The other spouse must issue a genuine and sincere call for the abandoning spouse to return home. This call must offer a period of at least 2 months for the return. This call must be genuine and sincere.
Unlike other grounds for divorce, the waiting period of 3 years does not apply to divorce cases based on abandonment. Therefore, if all the criteria of abandonment are present, the parties are eligible to file for divorce before the expiration of 3 years.
- Mental Illness
If one spouse suffers an incurable mental illness throughout the marriage, and this condition has made the marriage intolerable for the other spouse, the other spouse may file for divorce based on this ground. Some conditions are required to file for divorce based on mental illness. These are:
- The existence of a mental illness during the marriage,
- An official medical board report confirming the disease cannot be cured,
- The common life becoming unbearable for the other spouse due to the illness.
The judge will determine whether the related mental illness will be a ground for divorce or not. While making this assessment, the judge will evaluate whether the common life has become unbearable for the other spouse.
Where Can Divorce Action Be Filed?
Divorce actions can be initiated at the Family Court in the place of residence of either spouses or at the Family Court in the place where the spouses have been living together for the last 6 months before the lawsuit. In places where there is no Family Court, the competent court is the Civil Court of First Instance.
If the parties are divorcing through an uncontested divorce, they may authorize the Family Court in another place other than the above-mentioned jurisdictions.
How The Divorce Will Be Filed If One of The Spouses Is Not a Turkish Citizen?
In cases where one spouse has a different nationality, the applicable law for divorce is determined by the jurisdiction where the spouses resided together during their marriage. If no common jurisdiction exists, Turkish law is applicable.
When a person married to a foreign national seeks divorced, this procedure will be followed as explained above and there is no obstacle for filing a divorce action in Turkey.
However, if a Turkish citizen divorces their foreign national spouse abroad, the divorce decision will not automatically take effect in Turkey. To enforce the relevant decision in Turkey, a recognition and enforcement action must be initiated. Otherwise, the marriage between the parties will continue under Turkish law.
Conclusion
Divorce proceedings are perhaps one of the most unpleasant legal processes. It is a psychologically challenging process since, not only the legal procedures are involved, but also the personal lives of the individuals are in question. Especially in contested divorce cases, these processes can reach an extremely injurious point for both parties. In addition to the psychological burden created by the process, due to the long duration of the proceedings in our country, the parties have to deal with years-long judicial procedures and have to continue to fulfil the obligations of the marriage throughout this whole process.
We believe that it is much more efficient for both parties to end this process by agreement in terms of both the shortness of the process and the continuation of the respect of the parties for each other in the later periods of their lives.While there's no requirement for legal representation in divorce lawsuits, especially in contested actions, divorce procedures differ significantly from other private law cases. Decisions in these cases will affect the future lives of the parties, especially in cases where the parties have a common child and alimony claims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
