Divorce Based on Mental Illness (Art. 165 of the TCC)
Article 165 of the Turkish Civil Code (TCC) regulates divorce lawsuits based on mental illness: “If one of the spouses is mentally ill and as a result, common life becomes unbearable for the other spouse, this spouse may file for divorce, provided that it is determined by an official medical board report that the illness is incurable.”
Legal Requirements:
Nature of the Illness: The law specifically cites mental illness (akıl hastalığı). Other severe or incurable physical diseases (e.g., epilepsy, leprosy, syphilis, plague, AIDS) do not constitute a ground for divorce under this specific article.
Incurability: It must be officially documented by a medical board report that there is no possibility of recovery. If there is a chance of healing, the judge must dismiss the case.
Unbearability: Even if the illness is proven, the plaintiff must demonstrate that the common life has become unbearable (ortak hayatın çekilmez hale gelmesi) due to this condition.
Timing: If the mental illness existed before the marriage and was of a nature to prevent marriage, the marriage may be subject to absolute nullity (mutlak butlan). For Article 165 to apply, the illness must generally emerge or be diagnosed after the marriage.
JUDGMENT OF THE COURT OF CASSATION
2nd Civil Chamber | Basis: 2004/4941 | Decision: 2004/7899 | Date: 15.06.2004
Legal Analysis: “…It is understood that the defendant suffers from ‘temporal lobe epilepsy.’ The existence of this disease in one of the spouses is not a cause for divorce in and of itself. There is no evidence that the defendant avoided treatment; furthermore, the medical report determined that the defendant possesses the mental capacity to maintain a marriage. Apart from the defendant having epilepsy, no other concrete incidents have been presented that would shake the foundation of the marriage union or make the continuation of common life impossible. Therefore, the case should have been dismissed; rendering a decision for divorce was not found to be correct.”