Divorce is not defined in the Turkish Civil Code. For divorce, a validly established marriage must be terminated by a court decision based on the reasons and conditions stipulated in the law in the health of the spouses. In the systematics of the law, the reasons for divorce are divided into two as special and general reasons for divorce. According to their effects and results, the reasons for divorce are divided into two as relative and absolute reasons for divorce.
1- SPECIAL GROUNDS FOR DIVORCE
Special grounds for divorce according to the TMK numbered 4721;
Adultery (TMK 161)
Castration (Art.162)
Very bad or degrading behaviour (Art.162)
Committing a crime (Art.163)
Leading a life without dignity (Art.163)
Abandonment (Art.164)
Mental illness (Art.165)
Special grounds are regulated in a limited number. Any situation that does not comply with the events and conditions specified in the law is not considered as a special reason for divorce.
A.ADULTERY
‘If one of the spouses commits adultery, the other spouse may file for divorce’ Article 161. Pursuant to the second paragraph of the Article, the right to file a lawsuit shall lapse after 6 months from the date the spouse who is entitled to file a lawsuit learns the reason for divorce and in any case after 5 years have elapsed since the act of adultery. According to paragraph 3, the ‘forgiving party’ has no right of action. Adultery, which is one of the absolute grounds for divorce, is not defined in the law. While adultery was a crime subject to complaint in the previous penal code period, and even separated as adultery of the woman and adultery of the man, it was decriminalised in the amendment of the penal code that entered into force in 2005 as a result of the legalisation movements made after the two thousand years. Therefore, since there is no regulation on this issue in the current laws, it would be appropriate to refer to the application of the penal code before 2005 in order to define adultery. When the literature of the period and the practice of the Court of Cassation are examined, it is sought for the realisation of the offence that the sexual intercourse should have taken place in the usual way, that is, in a way to enable pregnancy. On the basis of this, it will be seen that an approach that can be summarised as ‘Let my property be left to my progeny’ is adopted. Therefore, it can be said that the principle of patria potestas (paternal sovereignty) in Roman law is at the deepest level in the criminalisation of adultery. Today, although there is an intention to consider the dimensions of sexual intercourse that do not reach actual intercourse as adultery due to moral concerns, for the reason we have explained, technically, in order to prove adultery, the conditions of ordinary and actual intercourse between the opposite sexes must be fulfilled.
B. Attempt on Life, Grossly Abusive or Degrading Behaviour
‘Each spouse may file for divorce on the grounds of an attempt on his/her life or grossly abusive or degrading behaviour by the other spouse.’ (Art.162) The lawsuit must be filed within 6 months starting from the date of learning of this behaviour and within 5 years after the birth of this reason. This period is forfeited and observed by the judge ex officio.
The spouses are obliged to ensure the happiness of the marriage union (art.185). It is obvious that attempt on life, unpleasant or degrading behaviour is incompatible with the obligation to ensure happiness. Undoubtedly, the spouse who is subjected to these behaviours has the possibility to file for divorce based on the general grounds for divorce (Art. 166), claiming that the marriage union has been shaken from its foundations. However, if these behaviours are systematic, it would be appropriate to file a lawsuit pursuant to Article 162 by taking advantage of the absolute ground for divorce.
The forgiving party has no right to file this lawsuit. However, in the criminal investigation on this behaviour, which often constitutes a crime, the waiver of the complaint is not binding for the divorce case.
C. Committing a Crime and Leading a Life without Dignity
‘If one of the spouses commits a humiliating crime or leads a life without dignity and the other spouse is not expected to live with him/her due to these reasons, this spouse can always file for divorce.’
Committing a crime and leading a dishonourable life are relative grounds for divorce and therefore are discretionary grounds for divorce. In other words, in addition to committing a crime and leading a dishonourable life, it is necessary to pay attention to this in terms of the law of proof. In this case, if the marriage union has been shaken from its foundations to a level that cannot be expected from the spouses, the court may decide for divorce.
D. Abandonment
‘If one of the spouses abandons the other with the intention of not fulfilling the obligations arising from the union of marriage or does not return to the common residence without a justified reason, if the separation has lasted for at least 6 months and this situation continues and the warning made by the judge upon request is ineffective; the abandoned spouse may file for divorce.’ (Art.164) According to the second sentence ‘The spouse who forces the other to leave the common residence or prevents the other from returning to the common residence without a justified reason is also deemed to have abandoned.’
In the second paragraph of the Article, it is regulated that the notice to be sent by the judge shall warn the abandoning spouse to return to the common residence within two months. No authorisation is sought in the notice. In other words, it is possible to make a request from any court.
If the lawsuits based on the notice of abandonment are accepted, the defendant is not entitled to compensation and alimony due to the nature of the case. However, it is not possible to accept a lawsuit based on the grounds that the marriage union is shaken from its foundations after the notice of abandonment is sent, as it will no longer be insincere. For this reason, since there are severe conditions for the acceptance of the lawsuit based on abandonment, it should be done accordingly when filing a lawsuit. Because if the call to return home is not sincere or if the addressee has a justified reason for not returning home, the lawsuit will be rejected.
The money to be sent to the abandoner must be sent in payment at the residence. If necessary, the notice may also be made by way of announcement. The 4-month period stipulated in the law for the notice starts from the date of abandonment or waiver of the divorce case. If an alimony case has been filed, the period starts from that date or from the date of finalisation due to waiver.
E. Mental Illness
Mental illness is a relative ground for divorce and one of the spouses must be mentally ill and the common life must become unbearable for the other spouse due to this illness. The third condition is the determination by official health institution reports that the disease is not likely to go away. This case can be filed together with adultery. However, when the lawsuit is accepted, since the behaviour is not voluntary, material and moral compensation is not awarded. On the other hand, if there are conditions, the alimony obligation continues. If the case is filed by the guardian, permission must be obtained from the guardianship authority.
2-GENERAL SEASONS FOR DIVORCE
It is regulated in Article 166 of the Turkish Civil Code No. 4721.
Breaking of the marriage union (Art.166 f.I-II)
Divorce by agreement (Art.166 f.III)
Divorce on the grounds of active separation (Art.166 f.IV)
A. Breaking of the marriage union
“Marriage establishes a marriage union between the spouses. The spouses are obliged to ensure the happiness of this union and to take care of the care, education and supervision of the children together. The spouses are obliged to live together, to be faithful to each other and to help each other.” (Art.185) In addition, the spouses shall choose the residence together, manage the union together and participate in the expenses of the union with their labour and assets in proportion to their power. (Art.186 of the Civil Code)
All of the divorce cases explained so far, except for mental illness, are the consequences of violating the obligations stated in the above articles. On the other hand, the shaking of the marriage union from its foundations is exclusive to the cases where the possibility of these obligations to bring results alone is in doubt or the combination of many of the above-mentioned obligations, and it must be proved that the behaviour contrary to the said obligation has shaken the marriage union from its foundations. As a matter of fact, according to Article 166 f.I-II of the TCC, “If the marriage union is shaken to such an extent that they cannot be expected to maintain a common life, each of the spouses may file for divorce.
In the cases specified in the paragraph above, if the fault of the plaintiff is more serious, the defendant has the right to object to the lawsuit filed. However, if this objection is in the nature of abuse of right and there is no benefit worth protecting for the defendant and children in the continuation of the marriage union, divorce may be granted.”
As can be seen, in order to decide for divorce on the basis of this article, the judge must be convinced that the marriage union has been shaken to such an extent that the spouses cannot be expected to maintain a common life. Undoubtedly, the fundamental breakdown of the marriage union is a relative ground for divorce. Although fault is mentioned in the first paragraph, the second paragraph allows the spouse whose fault is more severe to file a lawsuit under certain conditions. In other words, if the spouse whose fault is more severe proves that the other party is at least slightly at fault and the objection of the other party to the lawsuit is in the nature of abuse of right, divorce is granted if there is no benefit worth protecting for the defendant and children in the continuation of the marriage union. However, in this case, not in favour of the spouse who obtained a divorce although he/she is seriously negligent, but in favour of the defendant who is less negligent, even if he/she has not filed a counterclaim, financial compensation and moral compensation if his/her personal rights are damaged.
B. Uncontested Divorce
“If the marriage has lasted for at least one year, if the spouses apply together or if one spouse accepts the other spouse’s lawsuit, the marriage union is deemed to be shaken from its foundations. In order for a divorce to be granted in this case, the judge must listen to the parties in person and be convinced that their wills are freely expressed and find the arrangement to be accepted by the parties regarding the financial consequences of the divorce and the status of the children appropriate. The judge may make the changes he/she deems necessary in this agreement by taking into consideration the interests of the parties and the children. If these amendments are accepted by the parties, divorce shall be granted. In this case, the provision that the admissions of the parties shall not bind the judge shall not be applied.” (Article 166/3) Pursuant to this article, divorce is still subject to a judge’s decision.
It is possible for the parties to withdraw from the protocol to be prepared for uncontested divorce before the hearing, after the hearing or even after the decision until the decision is finalised. The hearing of the parties by the judge in person is necessary for the determination of whether their wills are freely expressed or not. In practice, it is possible to continue the case by filing a new petition, provided that it is limited to Article 166 of the Civil Code, in case of renunciation of the uncontested divorce.
C. Divorce on the grounds of de facto separation
According to Article 166 IV of the Civil Code, ‘In the event that the lawsuit filed for any of the grounds for divorce is decided to be rejected and three years have passed starting from the date of finalisation of this decision, if the common life has not been re-established for whatever reason, the marriage union is deemed to be shaken from its foundations and divorce is decided upon the request of one of the spouses.’
In order to decide for divorce based on de facto separation;
-There must be a rejected divorce case.
-Common life should not be established after the finalisation of the rejection decision,
-Three years should have passed after the finalisation of the rejection decision. In case of divorce due to de facto separation, financial compensation shall be awarded against the party who filed the rejected divorce case.
3-EXCLUSIVE REASONS FOR DIVORCE
The absolute reasons for divorce according to the consequences of the TMK numbered 4721 are as follows.
– Adultery (Art.161)
– Castration (Art.162)
– Gross misconduct or dishonourable behaviour (Art.162)
– Abandonment (Art.164)
– Uncontested divorce (Art.166 f.III)
– Divorce on the grounds of active separation (Art.166 f.IV)
In absolute grounds for divorce, if the existence of the material event (adultery, crime, etc.) shown as a reason for divorce is proved, the divorce decision is given regardless of the effect of this event on the marriage union in the lawsuit filed by the male or female faultless spouse. In other words, it is not considered whether the union of marriage is shaken from its foundation or not. In absolute grounds for divorce, it is a presumption that the material event has shaken the union of marriage from its foundation.
IV- RELATIVE GROUNDS FOR DIVORCE
The relative grounds for divorce according to the consequences of the TMK numbered 4721 are as follows;
-Committing a crime (Art.163)
-Living an undignified life (Art.163)
-Mental illness (Art.165)
-Dissolution of the marriage union (Art.166 f.I-II)
Relative ground for divorce is a discretionary ground for divorce. In other words, if there is a relative ground for divorce, the court may decide for divorce if the marital union is shaken from its foundations to a level that cannot be expected from the spouses.