Divorce proceedings due to abandonment are one of the special divorce reasons regulated in Article 164 of the Turkish Civil Code. Divorce due to abandonment is not only a special reason for divorce, but also an absolute reason for divorce. This means that if there is a reason for the abandonment, it will also be decided regardless of the effect of shaking the marriage union from its foundation. Since it is certain that the material event will shake the marriage union from its foundation and the parties will not be able to maintain the marriage union for the reasons of absolute divorce, it will also not be investigated whether this situation makes the marriage unbearable.
WHAT ARE THE CONDITIONS FOR FILING A DIVORCE DUE TO ABANDONMENT?
In order to be able to file for divorce based on the reason for the abandonment, it is necessary to fulfill the conditions contained in Article 164 of the Turkish Civil Code. These terms;
SEPARATION OF ONE OF THE SPOUSES FROM THE COMMON LIFE, LEAVING THE COMMON DWELLING:
In order to be able to talk about abandonment, it is necessary that one of the spouses leaves the common dwelling, leaves his joint life with his other spouse and ends it for no justifiable reason. In Article 164 of the Turkish Civil Code, “If one of the spouses leaves the other for the purpose of not fulfilling their obligations arising from the marriage union or does not return to the common residence for no justifiable reason …”, a divorce case may be filed for abandonment. Therefore, in order for a divorce to be filed after the abandonment has occurred, it is imperative that the non-return be made on the basis of an unjustified reason. For example, if a person does not return to a communal residence for necessary reasons, such as military service or a criminal conviction, a divorce case may not be filed due to abandonment.
ABANDONMENT OCCURS FOR THE PURPOSE OF NON-FULFILLMENT OF OBLIGATIONS ARISING FROM THE MARRIAGE UNION:
In Article 164 of the Turkish civil code “in order to fulfil the obligations arising out of the marriage if one spouse by the other abandoned…” in the form of marriage for the actual left to be the subject of divorce in order to fulfil obligations arising from the Union of which should be determined. Therefore, abandonment actions that were not done for this purpose, TMK m. it does not constitute a reason for divorce based on 164. If the leaving spouse has left the house for a justifiable reason during the separation, a divorce case cannot be filed on the basis of this reason.
THE FACT THAT IT TOOK AT LEAST 6 YEARS TO LIVE APART DUE TO ABANDONMENT:
If one of the spouses leaves the joint life for the purpose of not fulfilling the obligations arising from the marriage union or does not return without a justified reason, the other spouse will not be able to file for divorce due to abandonment immediately after the separation. In order to be able to request a divorce based on this reason, it is necessary that the separation has lasted at least 6 months after the act of abandonment. Upon the return of the spouse who left within 6 months after the act of abandonment, the other spouse will not have the right to file for divorce based on the reason for the abandonment. If the leaving spouse repeats the act of abandonment, the 6-month period recognized by law will begin again. However, the important point here is that abandonment actions will occur if they are continuous. If the spouse who has left is constantly doing the actions of leaving and returning and is preventing the expiration of the 6-month period in this way, this state should be considered as an abuse of the right and it should be recognized that the 6-month period is taking place in this way.
THE WARNING CONDITION HAS BEEN FULFILLED:
Article 164/2 of the Turkish Civil Code states: “At the request of the spouse entitled to the case, the judge or notary shall warn the spouse who has left the case that he should return to the common residence within two months and the consequences that will arise if he does not return, at the warning that he will make without examining the merits. This warning is made by announcement when necessary. However, a notice cannot be requested unless the fourth month of the specified period for filing for divorce has expired, and a case cannot be filed unless two months have elapsed after the notice.” the warnings and periods required to be made in the provision have been determined. Accordingly, the warning can be made from the fourth month of abandonment. A warning may be requested after the fourth month of the six-month period set for filing for divorce due to abandonment has expired. In this way, four months of the six-month period should be completed before the warning and two months should be completed after the warning. A warning can be sent by a judge or a notary.
TWO MONTHS HAVE PASSED SINCE THE WARNING:
After being notified at the end of the four-month period recognized in the law, a two-month period must have elapsed to file for divorce based on the reason for the abandonment. In this regard, a divorce cannot be filed for abandonment without waiting for a two-month period after the warning. To explain by example, even if a warning is given after 1 year has passed since the spouse has left the shared residence, two months must elapse after the warning in order to be able to file for divorce based on the reason for the abandonment.
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