Turkey: Grounds For Divorce In Turkey And In Romania; A Comparative Study

Last Updated: 25 March 2015
Article by Sofian Bianca

1. Introduction

Although not all of them are stipulated by the laws, grounds for divorce are multiplying at many jurisdictions given the fact that divorces are becoming more common in educated societies. The legislations of different countries tried to reflect these common grounds in a compact manner, although, most of the time, they are not stipulated in an exhaustive one, leaving judges leverage.

2. Main Grounds for Divorce in Turkey

In Turkey, Articles 161 to 166 of the Turkish Civil Law note that there are two (2) main types of divorce grounds: special and general.

The special ones are divided into six (6) categories:

  1. adultery,
  2. deliberate attempt to kill, maltreatment or severe humiliation,
  3. committing a crime and unreasonable behavior,
  4. desertion,
  5. mental disease,
  6. irretrievable breakdown of marriage.

Whereas the general grounds are divided into three (3) categories:

  1. incompatibility,
  2. coming to a mutual agreement on divorce,
  3. living apart for three (3) years after an application for dissolution of marriage is denied by the courts.

3. Main Grounds for Divorce in Romania

On the other hand, in Romania the divorce grounds are provided in the Article 373 of the Civil Code as the following:

  1. the agreement between spouses, the request of both spouses or the request of one of the spouses if the other one agrees,
  2. when, because of serious grounds, relations between spouses are seriously injured and the continuance of the marriage is no longer possible,
  3. at the request of one of the spouses after a separation which lasted at least 2 years,
  4. at the request of the spouse whose health condition makes it impossible to continue the marriage.

4. Similar Grounds of Divorce in both Jurisdictions

4.1. Adultery

In Turkey, adultery is defined as voluntary sexual intercourse between one of the spouses and a third party. Article 161 of the Turkish Civil Law notes that if one of the spouses commits adultery, the other spouse will be entitled to file a lawsuit for dissolution of their marriage. The spouse has a period of six (6) months after the discovery of such reason, and within five (5) years following the date of the act of such adultery under any circumstances. If there is one of such adulteress act, the date in which it was committed will be taken into consideration form the commencement of the above mentioned legal periods for application. In case the adultery repeated within a period of time, the last one will be considered for the application process. If the other spouse forgives such adultery, his/her right to file such lawsuit will expire.

In the Romanian legislation, adultery has no terms and no boundaries, this is why, when it is committed, the judge, after analyzing the evidence, will use such ground for divorce based on his own discretion and review.

4.2. Desertion

Article 164 of the Turkish Civil Law notes that if one of the spouses deserts the other in order to refrain from his/her matrimonial obligations or due to an unjustified reason and fails to come back for minimum six (6) months, if the separation is still pending and if the legal notice sent by the court to the deserter spouse upon an application by the other spouse remains unanswered, the deserted spouse is entitled to file a lawsuit for divorce.

The term desertion is defined as the termination of union of the spouses. Accordingly the intent of the departing spouse has to be taken into account, whereas a spouse leaving the other spouse to serve mandatory military service, time of imprisonment, for healthcare reasons based on sickness, purposes of business trips or for other similar reasons shall not be deemed as desertion since there is no intent to desert the spouse by the other.

The deserted spouse is entitled to apply to the court for serving of a legal notice on the deserter spouse following as from the end of the fourth month, and therefore as from the beginning of the fifth month of the desertion. Furthermore, once such a legal notice is served, the deserted spouse shall not be able to file a divorce claim at the relevant court for two months from the date of the date of such notice. . The said legal notice will invite the deserter spouse to come back within two (2) months at the latest and notify the sanctions to be enforced if he/she fails to comply.

As mentioned above, the Romanian legislation does not provide a term for the unjustified leaving of the conjugal home, but according to the case precedent, it is consider that the desertion has to last a certain period of time in which the spouse who files the lawsuit must have a strong belief that the defendant left home and is not going to fulfill his marital duties anymore.

4.3. Attempt to Kill, Maltreatments & Sever Humiliation

Article 162 of the Turkish Civil Law orders that if any of the spouses deliberately attempts to kill the other, maltreats the other or severely humiliates the other, the other spouse will be entitled to file a lawsuit for dissolution of their marriage. The first of these legal grounds is defined as a malicious attempt by one of the spouses to kill the other. If one of the spouses acts in a way meaning to kill the other, such legal ground shall be deemed to have been fulfilled. The second of these legal grounds is maltreatment of one of the spouses by the other, which includes beating the other spouse in a ruthless way, locking him/her in a room, tying his/her feet or hands, or leaving him/her hungry. The third of these legal grounds is severe humiliation of one of the spouses by the other, defined as acting in a way of dishonoring the other spouse, including throwing the other out of the family house or insulting the other. Such actions can be declared in verbal or written form to the court.

In Romania, such ground for divorce is set forth within the term 'violence', and therefore it has a wider range of applicability, including any type of violence, even those mentioned by the Turkish law. The reason for which they are not exhaustively listed is to allow the law the flexibility to deem any acts that are not listed but are violent and harms a person physically and/or emotionally nonetheless, as violent and unlawful. Hence, the determination of the facts of the case and whether or not the acts constitute violent and unlawful behavior shall be at the sole discretion of the relevant Court.

4.4. Irretrievable Breakdown of Marriage

Article 165 of the Turkish Civil Law defines irretrievable breakdown of marriage as a general legal ground for divorce. If the marriage has broken down in an irretrievable way so that the spouses cannot be expected to continue their marriage, any of them will be entitled to file a lawsuit for divorce. In case of such lawsuit, if the petitioner's fault is more severe, the respondent will be entitled to object the lawsuit. If the right in question is misused, the judge might dissolve the marriage if it is not worth to be saved for the respondent and the children. If the marriage has lasted at least one (1) year and both partners apply in agreement for a divorce or one of them agrees the other partner's application for a divorce, it will be considered that the marriage irretrievably broke down.

This ground is mentioned in the first paragraph of the Romanian Civil Code provided as the agreement between spouses, the request of both spouses or the request of one of the spouses if the other one agrees. Therefore, there are no major differences regarding this, excepting that there is no term to file the lawsuit on such ground.

5. Different Grounds of Divorce in Both Legislations

As we can see, as a main difference between these two countries, the special grounds of Turkey are more or less included in the second ground of the Romanian Civil Code. This is because by 'serious grounds' it is understood as those powerful reasons that justify the dissolution of marriage through divorce, due to the fact that for the one who requests it, the marriage has become impossible to continue. Although the legal text does not particularly specify them, it is considered that the action for divorce is submitted when marriage lacks substantive elements under which has been born in the first place like mutual affection, friendship, moral and material support etc. One of the most important bases in order to determine its value is the legal practice, namely the jurisprudence. Therefore, during time, there have been outlined some of the most common reasons for divorce including:

  1. the unjustified leaving of the conjugal home imputed to the defendant,
  2. adultery,
  3. violence,
  4. physiological incompatibility,
  5. incurable disease of one of the spouses hidden to the other when signing the marriage act,
  6. unjustified absence of consent in sexual intercourse
  7. misconduct of one of the spouses manifested by physical violence or other type of violence.

5.1. Committing a Crime or Unreasonable Behavior

This reason has a certain correspondence with the violence provided in the Romanian law, but the difference is the fact that the significance of it results from the Article 163 of the Turkish Civil Law which defines it like "If one of the spouses commits a humiliating crime or unreasonable behavior and the other spouse can no longer be expected to continue to live together with the faulty spouse, the other spouse will be entitled to file a lawsuit for dissolution of their marriage". In addition, unlike the physical or psychological violence, those 2 actions refer to doings towards a third party and not the other spouse. The term "unreasonable behavior" is defined as a way of life disrespecting the morality, dignity and honor or self-respect principle of the society. However, such action will not be considered a legal ground for dissolution of marriage unless it has been committed while the parties are married.

The difference towards the Romanian law is that the violence is committed between spouses and not against a third party. The humiliating situation of one of the spouse caused by the severe acts of the other one it is not considered as a strong enough reason to file a lawsuit for divorce, given the fact that marriage is supposed to offer mutual understanding and support when needed. However, by parity of reasoning, it might have a correspondence with the last mentioned reason resulted from the legal practice. This is because by ,misconduct of one of the spouses manifested by physical violence or other type of violence' it is understood that any kind of unusual behavior will be considered as valuable as long as it denigrates the social and professional life of the other.

5.2. Mental Disease

Apparently, this can appear as a common reason except that, in the Romanian legislation, it is not necessary to be a mental disease but an incurable one and which has been hidden when the marriage took place. Also, in the fourth paragraph of the Romanian's Civil Code Article, we can see that the one who is demanding is actually the one suffering from the disease, due to the fact that his morality leads him to do so, this being a different reason from the one mentioned above. However, if he is not acting in such manner, the other spouse, if the marriage cannot continue because of the behavior resulted from this situation, can file the lawsuit according to the burden caused to him/her.

On the other side, Article 165 of the Turkish Civil Law notes that if one of the spouses suffers a mental disease, the marriage becomes intolerable to the other spouse due to such disease, and the medical committee of a public hospital issues a report to confirm that the said mental disease is incurable, the other spouse will be entitled to file a lawsuit for divorce. This does not mean that every mental disease will be considered a special legal ground for divorce, but only those such as schizophrenia or paranoia. Unlike the Romanian stipulation, the burden of proof for such intolerability remains with the suing party.

5.3 Physiological Incompatibility

As uncommon as it might seem, nowadays physiological incompatibility is becoming a frequent reason for which most married couples are divorcing. Nevertheless, then majority of the couples start their intimate life before marriage, unlike to how it used to be years ago, and for this reason does not seem to have solid bases to argue dissolution of marriage, although it is anticipated as a common ground in the Romanian legal practice.

5.4. Unjustified Absence of Consent in Sexual Intercourse

Since marriage took place or even before, it is assumed that spouses have mutual consent when it comes to their intimate relationship. However, sometimes it happens that one spouse refuses the other for various reasons such as fatigue, stress caused by their occupation, malaise and others. Still, if such refusal occurs without the existence of one of the above reasons, having no justification and persisting for a long time, legal practice considered this as one of the founded reasons for divorce. In some situations, this absence of consent might lead to rape which is considered to have happened even if the couple is married, being incriminated in the Article 218 of the Romanian Penal Code.

5.5 Separation Lasted for at Least Two (2) Years

Unlike the Turkish law which notes that living apart for three (3) years after an application for dissolution of marriage is denied by the courts' as a general ground for divorce, the Romanian Civil Code stipulates that it is needed that the spouses live together for two (2) years in order to file a lawsuit for divorce. This is because the court needs to assure that the couple has tried for a period of time to make their relationship work. In the Turkish system, the couple can file the lawsuit whenever they desire, but the court will accept their request only after a period of three (3) years since they have lived separately.

Concluding, although it is an undesirable ending of a marriage, divorce is seen increasingly often no matter the state, religion or circumstances, making divorce cases no longer being considered as a rarity. For this reason, as we have seen in the above mentioned grounds for divorce, legislations from all over the world tried to stipulate them in order to follow such solution only in particular situations, so that marriage cannot be disbanded easily, except the serious cases in which injury is encountered. With the hope that these cases will become more rare, people should try to offer mutual trust, understanding and support, which could easily decrease such unpleasant situations.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions