The Turkish Civil Code does not define divorce. For divorce to be valid, a marriage that has been legally established must be terminated by a court decision based on the reasons and conditions stipulated in the law while the spouses are alive. In the legal system, grounds for divorce are divided into specific and general grounds for divorce. According to their effects and consequences, grounds for divorce are divided into relative and absolute grounds for divorce.
1-SPECIAL GROUNDS FOR DIVORCE
According to the Turkish Civil Code No. 4721, the special grounds for divorce are:
Adultery (TMK 161)
Attempting to take one’s own life (m.162)
Extremely bad or humiliating behaviour (m.162)
Criminal activity (Article 163)
Living an immoral life (Article 163)
Abandonment (Article 164)
Mental illness (Article 165)
Special grounds are limited in number. No situation that does not meet the events and conditions specified in the law can be considered a special ground for divorce.
ADULTERY
‘If one spouse commits adultery, the other spouse may file for divorce’ (Article 161). Pursuant to the second paragraph of the article, the right to file for divorce expires six months after the spouse entitled to file learns of the grounds for divorce, and in any case, five years after the act of adultery. According to the third paragraph, the ‘forgiving party’ has no right to file for divorce. The definition of adultery, which is one of the absolute grounds for divorce, is not provided in the law. While adultery was a complaint-based offence under the previous criminal code, and even the adultery of a woman was distinguished from that of a man, it was decriminalised in the 2005 amendment to the criminal code as a result of the codification efforts undertaken after the 2000s. Therefore, as there is no regulation on this matter in the current laws, it would be appropriate to refer to the application of the Penal Code prior to 2005 to define adultery. Looking at the literature of the period and the practice of the Court of Cassation, for the crime to be committed, the sexual intercourse must have taken place in the normal way, i.e., in a manner that could lead to pregnancy. Underlying this is the preservation of lineage, i.e., the family bond, and at its core, the existence of property and inheritance relations, which can be summarised as the approach of ‘my property shall remain with my lineage.’ Therefore, it can be said that the principle of patria potestas (paternal authority) in Roman law lies at the heart of adultery being considered a crime. Although there is an intention today to consider even aspects of sexual relations that do not involve actual intercourse as adultery, based on moral concerns, for technical reasons, as explained above, for adultery to be proven, intercourse must occur between persons of the opposite sex in the normal manner and under the conditions of actual intercourse.
B. Attempting to Take a Life, Very Bad or Honour-Damaging Behaviour
‘Either spouse may file for divorce on the grounds that the other spouse has attempted to take their life, behaved very badly towards them, or engaged in severely humiliating behaviour.’ (Article 162) The lawsuit must be filed within 6 months of learning of this behaviour and within 5 years of the cause arising. This period is subject to a statute of limitations and is considered ex officio by the judge.
Spouses are obliged to work together to ensure the happiness of the marriage (Article 185). It is clear that attempts on life, cruel behaviour, or behaviour that is deeply humiliating are incompatible with the obligation to ensure happiness. Undoubtedly, the spouse subjected to such behaviour has the option to file for divorce on the grounds that the marriage has been fundamentally shaken, based on the general grounds for divorce (Article 166). However, if such behaviour is systematic, it would be appropriate to file a lawsuit in accordance with Article 162, taking advantage of the fact that it constitutes an absolute ground for divorce.
The forgiving party does not have the right to file this lawsuit. However, in most cases, withdrawing the complaint in a criminal investigation concerning this behaviour, which also constitutes a crime, is not binding in terms of divorce proceedings.
C. Committing a Crime and Leading a Dishonourable Life
“If one spouse commits a humiliating crime or leads a dishonourable life, and for these reasons it cannot be expected that the other spouse should continue to live with them, that spouse may always file for divorce.”
Committing a crime and leading an immoral life are relative grounds for divorce and are therefore discretionary grounds for divorce. In other words, in addition to committing a crime and leading an immoral life, attention must be paid to this from the perspective of the law of evidence. In this case, if the marriage has been fundamentally shaken to a degree that cannot be expected from the spouses, the court may decide to grant a divorce.
D. Abandonment
“If one spouse abandons the other with the intention of not fulfilling their obligations arising from the marriage, or does not return to the shared residence without a valid reason, and the separation has lasted at least six months and continues, and a warning issued by the judge upon request has been unsuccessful, the abandoned spouse may file for divorce. (Article 164) Pursuant to the second sentence, ‘A spouse who forces the other to leave the shared residence or prevents the other from returning to the shared residence without a valid reason shall also be deemed to have abandoned the other.’
The second paragraph of the article stipulates that the warning to be sent by the judge shall instruct the abandoning spouse to return to the shared residence within two months. No jurisdiction is required for the notice. In other words, it is possible to file a request with any court.
If a case based on a notice of abandonment is accepted, the defendant will not be awarded compensation or alimony due to the nature of the case. However, once a notice of abandonment has been sent, it is not possible to accept a case filed on the grounds that the marriage has been fundamentally shaken, as it would now be insincere. Therefore, as there are strict conditions for the acceptance of a case based on abandonment, the case must be filed accordingly. This is because the case will be dismissed if the call to return home is insincere or if the addressee has a valid reason for not returning home.
Any money sent to the abandoned spouse must be sent as a payment at the residence. The notice may also be served by public announcement if necessary. The four-month period stipulated by law for the notice begins from the date of abandonment or from the date of waiver of the divorce case. If an alimony case has been filed, the period begins from that date or from the date of finalisation due to waiver.
E. Mental Illness
Mental illness is a relative ground for divorce, requiring not only that one spouse be mentally ill but also that the shared life has become unbearable for the other spouse due to this illness. The third condition is the official determination by a healthcare institution that there is no prospect of recovery. This case may be filed alongside adultery. However, when the case is accepted, no material or moral compensation is awarded because the behaviour is not voluntary. On the other hand, if the conditions exist, the alimony obligation continues. If the case is filed by a guardian, permission must be obtained from the guardianship authority.
2-GENERAL GROUNDS FOR DIVORCE
Regulated in Article 166 of the Turkish Civil Code No. 4721.
Disruption of the marital union (Article 166, Paragraphs I-II)
Divorce by mutual consent (Article 166, Paragraph III)
Divorce due to actual separation (Article 166, Paragraph IV)
A. Fundamental Disruption of the Marital Union
“Marriage establishes a marital union between spouses. Spouses are obliged to jointly ensure the happiness of this union and to jointly care for, educate and supervise their children. Spouses must live together, remain faithful to each other and assist each other.” (Article 185) Furthermore, spouses shall choose their residence together, manage the union together, and contribute to the union’s expenses with their labour and assets in proportion to their means. (TMK Art. 186)
All divorce cases explained thus far, except those involving mental illness, are the result of behaviour contrary to the obligations set forth in the above articles. The fundamental breakdown of the marital union is limited to cases where the possibility of these obligations alone producing results is in doubt or where many of the above obligations are present simultaneously, and it must also be proven that the behaviour contrary to the obligation in question has fundamentally broken down the marital union. Indeed, according to Article 166(I-II) of the Turkish Civil Code, “If the marriage union is fundamentally shaken to the extent that it is unreasonable to expect the spouses to continue their life together, either spouse may file for divorce.
In the cases specified in the above paragraph, if the plaintiff is more at fault, the defendant has the right to object to the lawsuit. However, if this objection constitutes an abuse of rights and there is no longer any benefit worth protecting for the defendant and the children in continuing the marriage, a decision to grant a divorce may be made.”
As can be seen, in order for a divorce decision to be made based on this article, the judge must be convinced that the marital union has been fundamentally shaken to such an extent that it is unreasonable to expect the spouses to continue their life together. Undoubtedly, the fundamental breakdown of the marriage is a relative ground for divorce. Although the first paragraph refers to fault, the second paragraph allows the spouse with the greater fault to file a lawsuit under certain conditions. In other words, if the spouse with the greater fault proves that the other spouse is at least somewhat at fault and the other spouse’s objection to the lawsuit constitutes an abuse of rights, and if there is no longer any benefit worth protecting in continuing the marriage for the defendant and the children, a divorce shall be granted. However, in this case, even if the spouse who obtained the divorce despite being seriously at fault did not file a lawsuit against the defendant who was less at fault, if requested, a decision will be made on material compensation and, if personal rights have been violated, moral compensation.
B. Divorce by Mutual Consent
“If the marriage has lasted at least one year, the marriage union shall be deemed to have been fundamentally shaken if both spouses apply together or if one spouse accepts the other’s claim. In this case, in order for a divorce decision to be made, it is necessary for the judge to hear the parties in person, to be satisfied that their intentions have been freely expressed, and to find the arrangement accepted by the parties regarding the financial consequences of the divorce and the situation of the children to be appropriate. The judge may make any changes deemed necessary to this agreement, taking into account the interests of the parties and the children. If the parties accept these changes, the divorce is granted. In this case, the provision that the parties’ declarations are not binding on the judge does not apply. (Article 166/3) Pursuant to this article, a court decision is again required for divorce.
The parties may withdraw from the protocol they prepare for divorce by mutual consent before the hearing, after the hearing, or even after the decision until it becomes final. It is necessary for the parties to be heard by the judge in person to determine whether their intentions have been freely expressed. In practice, although sometimes unnecessary, if the parties withdraw from the divorce by mutual consent, it is possible to continue the case by submitting a new petition, subject to the limitations of Article 166 of the Turkish Civil Code.
C. Divorce Due to Actual Separation
According to Article 166(IV) of the Turkish Civil Code, ‘If a case filed on any of the grounds for divorce is dismissed and three years have passed since the date on which this decision became final, and if, for whatever reason, the joint life has not been re-established, the marriage union shall be deemed to have been fundamentally shaken, and a decision to divorce shall be made at the request of one of the spouses.’
For a divorce to be granted on the grounds of de facto separation:
-There must be a dismissed divorce case.
-The joint life must not have been re-established after the dismissal decision became final.
-Three years must have passed after the dismissal decision became final. In the event of divorce due to de facto separation, the party who filed the dismissed divorce case shall be ordered to pay material compensation.
3-ABSOLUTE GROUNDS FOR DIVORCE
According to the consequences stipulated in the Turkish Civil Code No. 4721, the absolute grounds for divorce are as follows.
-Adultery (Article 161)
-Attempt on life (Article 162)
-Extremely bad or humiliating behaviour (Article 162)
-Abandonment (Article 164)
-Divorce by mutual consent (Article 166, Paragraph III)
-Divorce due to actual separation (Article 166, Paragraph IV)
In cases of absolute grounds for divorce, if the existence of the material event cited as grounds for divorce (adultery, crime, etc.) is proven, a divorce decree is issued in the case filed by the blameless spouse, regardless of the impact of this event on the marriage. In other words, no consideration is given to whether the marriage has been fundamentally shaken. In cases of absolute grounds for divorce, it is now presumed that the material event has fundamentally undermined the marriage.
IV-RELATIVE GROUNDS FOR DIVORCE
According to the consequences stipulated in the Turkish Civil Code No. 4721, the relative grounds for divorce are as follows:
-Committing a crime (Article 163)
-Living an immoral life (Article 163)
-Mental illness (Article 165)
– Serious disruption of the marital union (Art. 166 f.I-II)
Relative grounds for divorce are discretionary grounds for divorce. In other words, if the relative grounds for divorce exist and the marital union has been disrupted to an extent that cannot be expected from the spouses, the court may decide to grant a divorce.