Divorce Due To Abandonment: A Comprehensive Legal Guide

Introduction

Divorce is a complex legal process that becomes even more challenging when abandonment is involved. Under the Turkish Civil Code, divorce due to abandonment is a specific legal ground that requires strict formalities and conditions to be fulfilled. This guide provides a detailed overview of the legal framework, essential requirements, and steps involved in filing for divorce based on abandonment.

What is Divorce Due to Abandonment?

Divorce due to abandonment, as stipulated in Article 164 of the Turkish Civil Code, allows one spouse to file for divorce if the other spouse has left the marital home without a justified reason and refuses to return. The law imposes strict procedural requirements, ensuring that the abandonment is not only unjustified but also sustained over a specific period.

Legal Basis in Turkish Civil Code

Article 185 of the Turkish Civil Code states:
"Spouses have to live together, be loyal to each other, and help each other."

If one spouse fails to adhere to this obligation and abandons the marital home for reasons that cannot be justified, the other spouse may file for divorce based on abandonment. This legal ground is both absolute and fault-based, requiring adherence to specific procedural steps.

Conditions for Divorce Due to Abandonment

To successfully file for divorce due to abandonment, the following conditions must be met:

1. Ending the Marital Life (Material Element)

One spouse must have left the marital home, ceasing to fulfill their obligations arising from the marriage. This includes the duty to live together, provide emotional support, and contribute to the family's well-being.

• What qualifies as abandonment?
  • The spouse intentionally leaves the marital home to avoid marital responsibilities.
  • The spouse refuses to return to the marital home without a valid reason.

Important Note: Separation due to justified reasons such as work, illness, or safety concerns does not constitute abandonment under the law.

2. Failure to Fulfill Marital Obligations (Moral Element)

The spouse's act of leaving the marital home must be intentional and aimed at evading marital responsibilities. This includes:

• Failing to contribute to the well-being of the family.
• Refusing to maintain the emotional and financial obligations of marriage.

3. Lack of Justification (Unjustified Abandonment)

For abandonment to serve as a legal ground for divorce, it must be unjustified. Common justifications that negate this ground include:

• Domestic violence or abuse.
• Unsafe living conditions in the marital home.
• Situations endangering the spouse's personal or financial security.

If the abandoning spouse can prove they left the home for valid reasons, the divorce claim based on abandonment will be dismissed.

4. Time Requirement (Six-Month Rule)

The abandonment must persist for at least six months. If the abandoning spouse returns to the marital home within this period, the conditions for filing a divorce case based on abandonment are not met.

5. Notification Requirement (Warning Notice)

The law requires that the abandoning spouse be sent a formal warning notice (terk ihtarı) before a divorce case can be initiated. This warning must:

• Be issued by the court or a notary.
• Inform the spouse about the obligation to return to the marital home within two months.
• Clearly state that failure to return will result in the initiation of divorce proceedings.

The Process of Filing for Divorce Due to Abandonment

The process of filing for divorce based on abandonment involves several procedural steps:

Step 1: Sending a Warning Notice

The abandoned spouse must formally notify the abandoning spouse to return to the marital home. This notice must be:

• Issued by a court or a notary.
• Delivered to the abandoning spouse through proper legal channels.
• Include details about the consequences of failing to return.

Step 2: Observing the Waiting Period

After sending the warning notice, the abandoning spouse is given two months to return to the marital home. If they fail to do so, the abandoned spouse is entitled to file for divorce.

Step 3: Filing the Divorce Case

Once the conditions are met, the abandoned spouse can file a divorce petition at the family court. The petition must include:

• Evidence of the abandonment.
• A copy of the warning notice.
• Proof that the abandoning spouse did not return within the specified period.

Legal Consequences of Divorce Due to Abandonment

Divorce based on abandonment has several legal consequences, including:

1. Division of Assets

The court may divide marital assets based on the circumstances of the case and the spouses' contributions during the marriage.

2. Alimony

The abandoned spouse may request spousal support or alimony, depending on their financial situation and the degree of fault attributed to the abandoning spouse.

3. Custody of Children

The court will prioritize the children's best interests when deciding custody arrangements. The abandoning spouse's actions may negatively impact their custody rights.

Common Misconceptions About Divorce Due to Abandonment

1. "Short-Term Absences Constitute Abandonment"

False. The abandonment must last for at least six months to qualify as a legal ground for divorce.

2. "A Warning Notice is Optional"

False. Issuing a warning notice is a mandatory step in the process. Without it, the court will dismiss the case.

3. "Returning Temporarily Stops the Process"

Partially True. If the abandoning spouse returns to the marital home and fulfills marital obligations, the conditions for filing a divorce case are nullified.

Why Legal Representation is Crucial

Divorce cases, particularly those involving abandonment, require strict adherence to procedural rules. Attempting to navigate this process without professional legal assistance can lead to delays or dismissal of the case.

An experienced family law attorney can:

• Ensure compliance with legal requirements.
• Collect and present evidence effectively.
• Advocate for your rights in court.

Conclusion

Divorce due to abandonment is a complex legal issue that requires careful navigation of the Turkish Civil Code's provisions. From fulfilling strict procedural requirements to gathering evidence, each step must be handled with precision.