REQUIRED CONDITIONS TO FILE A FILE FOR DIVORCE ON THE REASON OF ABANDONMENT
Abandonment is the separation of a spouse from the common life and is one of the absolute grounds for divorce. Since abandonment is one of the absolute grounds for divorce, the judge does not need to investigate whether the joint life has become unbearable for the other spouse due to abandonment. Divorce case due to abandonment is stated in Article 164 of the Turkish Civil Code (“TMK”): “If one of the spouses abandons the other for the purpose of not fulfilling their obligations arising from the marriage union or does not return to the common residence without a justified reason, the separation has lasted at least six months and this situation continues and the warning made by the judge upon request is inconclusive; the abandoned spouse may file a divorce case. 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 has also abandoned.” “Upon the request of the spouse who has the right to file a lawsuit, the judge warns the abandoning spouse that he/she must return to the shared residence within two months and the consequences that will occur if he/she does not return. However, a warning cannot be requested unless the fourth month of the certain period for filing a divorce case expires and a lawsuit cannot be filed until two months have passed after the warning.” organized as follows.
In order for the court to decide on divorce due to abandonment, the following conditions must be met:
Required Conditions to File a Divorce Case Due to Abandonment:
One of the spouses ends their joint life in order not to fulfill their obligations arising from the marriage union:
This condition is fulfilled if one of the spouses leaves the joint life with the purpose of not fulfilling the responsibilities imposed on them by the marriage, or does not return home without a justified reason, even if they did not leave the house for this purpose. Since abandonment is a reason for divorce based on fault, it is not possible to file a lawsuit for divorce due to abandonment for a justified reason, for example, a spouse who goes abroad for work or a spouse who goes to the military. The spouse’s goal should be to leave the other spouse. However, this condition is also fulfilled if the spouse who leaves the house not for abandonment but for another reason does not return home later without a justified reason.
The abandonment must have lasted at least six months:
If one of the spouses abandons the other for the purpose of ending their joint life and not fulfilling their obligations arising from the marriage union, or does not return to the common residence without a justified reason, the abandoned spouse cannot immediately file for divorce. In order for a divorce case to be filed, the separation must have lasted and continues for at least six months. However, returning home during a six-month period just to shorten the time does not cut the time, but sincere returns home do. If the same spouse leaves the shared residence again after a while, a new six-month period begins to run from this date.
A warning has been sent:
In order for a divorce to be decided due to abandonment, the spouse who left the house must have been warned by the judge or notary at the end of the fourth month following the abandonment, to return home within two months, and the spouse who left the house must not have returned home despite this warning. However, if the warning sent by the judge does not specify a time period for the spouse who left the house to return home, the warning will not produce any results. If the address of the abandoned spouse is not known, the warning can be made through an announcement.
Objections regarding the warning are examined together with the divorce case. Objections such as whether the necessary conditions for a warning are present or not may be raised during the divorce case. In this way, the spouse who leaves the house must prove that he is right not to leave but not to return, otherwise a divorce may be decided.
If the above conditions are met, the right to file for divorce due to abandonment arises. The judge investigates ex officio whether the conditions are present. If the conditions are met, he decides to divorce.