Divorce based on desertion is one of the specific grounds for divorce. For parties to file a divorce lawsuit based on desertion, the desertion must have lasted for at least 6 months. Desertion is regulated under Article 164 of our Civil Code No. 4721:
“Article 164: If one of the spouses leaves the other in order not to fulfill the obligations arising from the marriage union or does not return to the joint residence without a justified reason, provided that the separation has lasted for at least six months and this situation continues, and the legal notice made by the judge or the notary upon request remains inconclusive, the deserted spouse may file for divorce. The spouse who forces the other to leave the joint residence or prevents them from returning to the joint residence without a justified reason is also deemed to have deserted. Upon the request of the spouse entitled to sue, the judge or the notary, in the legal notice to be made without examining the merits, warns the deserting spouse that they must return to the joint residence within two months and about the consequences that will arise if they do not return. This legal notice is made through publication if necessary. However, the request for a legal notice cannot be made unless the fourth month of the specified period for filing a divorce lawsuit has ended, and a lawsuit cannot be filed unless two months have passed after the legal notice.”
As seen, the first condition for filing a divorce lawsuit based on desertion is that the separation must have lasted for at least 6 months. Another condition is that the spouse entitled to sue must send a legal notice containing a warning that the other spouse must return to the joint residence within two months.
As stated in the article of the Law, a spouse who forces the other spouse to leave the joint residence or prevents them from returning to the joint residence without a justified reason is also deemed to have deserted. In this case, the party at fault will be the spouse who forced the departure.
As stated in the decision of the 2nd Civil Chamber of the Court of Cassation dated 15.06.2005, Basis No. 2005/9041 and Decision No. 2005/9271:
“According to the witness statements heard in the alimony case, the husband, who is the plaintiff in the divorce case, kicked the woman out of the house and forced her to desert. A spouse who forces their spouse to leave the joint residence or prevents them from returning to the joint residence without a justified reason is also deemed to have deserted. In this respect, the conditions of Article 164 of the Turkish Civil Code have not been met. While the plaintiff’s lawsuit based on desertion should have been rejected, rendering a decision in the manner written was contrary to procedure and the law and required a reversal.”
As seen, the deserting spouse, who is the party at fault, does not have the right to sue.
This view was reiterated in the decree of the 2nd Civil Chamber of the Court of Cassation dated 04.12.2013, Basis No. 2013/14751, Decision No. 2013/28533:
“In the defendant woman’s reply to the legal notice, it is seen that she objected to the notice by stating that her husband applied violence, kicked her out of the house, and went to the village taking the children. In this case, the legal notice sent by the plaintiff husband does not bear legal consequences, and a divorce lawsuit based on such a notice cannot be accepted. For this reason, the appeal objections regarding the divorce lawsuit were not found justified; the judgment, which is correct in terms of its result, was deemed appropriate to be affirmed by changing its reasoning (Code of Civil Procedure Art. 438/last).”
Furthermore, the General Assembly of Civil Chambers of the Court of Cassation holds the same view. In the decree of the General Assembly of Civil Chambers dated 04.11.2009, Basis No. 2009/2-402, Decision No. 2009/484:
“The lawsuit concerns a request for divorce due to desertion based on Article 164 of the Turkish Civil Code No. 4721.
The defendant woman filed an alimony case on 09.03.2005 before the current lawsuit was filed; the court decided on 09.02.2006 to partially accept the case on the grounds that the plaintiff husband was at fault for forcing the defendant woman to avoid living together without a justified reason in the joint marriage, and therefore the defendant woman was justified in living separately…
…The dispute brought before the General Assembly of Civil Chambers through resistance is concentrated on the points of whether the fact of desertion has occurred in the legal sense in the concrete case; whether the deserted spouse is actually the plaintiff or the defendant, and accordingly, whether the plaintiff has the status of a party in terms of being able to file the divorce lawsuit based on desertion.
…It should be emphasized importantly that the concept of ‘deserting spouse’ here does not only include the spouse who leaves the other in order not to fulfill the obligations arising from the marriage union or who does not return to the joint residence without a justified reason; pursuant to the explicit provision of the law, this concept also covers the spouse who is deemed to have deserted by forcing the other spouse to desert or not to return.
Therefore, not only the spouse whose partner left them to avoid marital obligations, but also the spouse who was forced to leave or prevented from returning is included in the concept of the ‘deserted spouse.’
…Consequently, it emerges that the spouse who forces the other to desert or prevents them from returning home does not have the right to file a divorce lawsuit based on desertion. It is understood that this result is also in accordance with the purpose of the law.
…In this case, it is necessary to understand the expression ‘spouse entitled to sue’ in the article as the ‘deserted spouse’ and to accept that this spouse has the right to sue.
…In light of these explanations, when the concrete case is evaluated; according to the statements of the witnesses shown by the defendant woman and the scope of the file, it is established that the plaintiff spouse forced the defendant spouse to leave the joint residence and also prevented her from returning home by changing the key to the joint residence.
…The judgment had to be affirmed with a ‘modified reasoning’ stating that the lawsuit should be rejected due to the plaintiff spouse’s lack of ‘status of a party.”