GROUNDS FOR DIVORCE UNDER TURKISH LAW

Divorce is the termination of the union of marriage by a court decision based on the reasons listed in the Civil Code. In Turkish law, divorce cases and grounds for divorce are regulated in the Turkish Civil Code No. 4721.

Special grounds for divorce are regulated between Articles 161 and 165 of the Turkish Civil Code. The special grounds for divorce are adultery (Art. 161), attempt on life, bad or degrading behavior (Art. 162), committing a crime or leading a life without dignity (Art. 163), abandonment (Art. 164) and mental illness (Art. 165).

General grounds for divorce are included in Article 166 of the TCC. Irretrievable breakdown of the marital union, agreement of the spouses and de facto separation are the general grounds for divorce.

SPECIAL GROUNDS FOR DIVORCE

1-) Adultery

It is regulated in Article 161 of the Turkish Civil Code.

“According to Article 161: If one spouse commits adultery, the other spouse may file for divorce.

The right to sue shall expire six months after the spouse who has the right to sue learns the ground for divorce and in any case five years after the act of adultery.

The forgiving party has no right to sue.”

As it is understood from the law, the right to sue in a divorce case filed on the grounds of adultery is lost after six months from the date of learning the reason for divorce and in any case after five years have passed since the act of adultery. In such divorce cases, the other spouse may claim non-pecuniary damages from the adulterous spouse according to the general principles of compensation law.

Adultery, which constitutes a violation of the spouses’ obligation of loyalty, is regulated as an absolute ground for divorce among the special grounds for divorce in our law. The acceptance of adultery as an absolute ground for divorce means that if the existence of adultery is determined by the judge, the divorce is granted without investigating whether the marriage has been irretrievably broken. In other words, in case of adultery, it is accepted that the marriage union has been shaken from its foundations; no further proof is required.

2-) Attempt on Life, Grossly Disgraceful or Degrading Behavior

It is regulated in Article 162 of the Turkish Civil Code.

“According to Article 162 – Each spouse may file for divorce on the grounds of an attempt on his/her life by the other spouse or on the grounds of ill-treatment or grossly degrading behavior.

The right to sue shall expire six months after the spouse who has the right to sue learns the ground for divorce and in any case five years after the act of adultery.

The forgiving party has no right to sue.”

In order to determine that the attempt on life has taken place, the intent to kill in the act committed is sufficient. It is not important whether the means used are suitable for killing or not. In addition, if one of the spouses encourages the other to commit suicide, does not prevent it knowingly and willingly, or consciously does not intervene and remains a bystander when there is a danger of death, intent to kill will also be in question.

Death threats are not considered as attempt on life in this context. It is sufficient that the action taken is intentional. Reckless behavior is not accepted as intent. If there is an intent against the relatives of the spouse at this point, it will not be evaluated within the scope of Article 162 of the TMK and a divorce case cannot be filed due to attempt on life.

All kinds of behaviors such as one of the spouses forcing the other to have abnormal sexual intercourse, starving, damaging the body integrity and health, beating are within the scope of very bad behavior. It is sufficient to cause suffering to the spouse and cause his/her health to deteriorate. The occurrence of such an act is sufficient to cause divorce.

As for the degrading behavior; the daily discussions of the spouses or ordinary discussions that occur in the natural flow of the marital relationship do not fall within the scope of degrading behavior and disrespectful behavior is not sufficient. Furthermore, this degrading behavior must be of such an intensity and nature that it hurts and violates the honor and dignity of the exposed spouse. For example, a spouse saying to his/her spouse “you do not understand, you do not know, you are uncultured”, saying “are you a human being, are you a man”, saying that he/she does not look beautiful in photographs, saying “I married you for your salary, not because I love you”, cussing to other spouse’s religion and god, saying “God damn you”, insulting with words such as “go back to your ex-wife so she can cheat on you (with graphic wording) again”, imputing adultery constitute severely degrading behavior for the other spouse. As the forgiveness of the spouse may drop the right to file a lawsuit, if the lawsuit is not filed within a period of 6 months from the date of learning of the act and 5 years from the date of the act, a divorce case cannot be filed due to degrading behavior.

3-) Committing a Crime and Leading a Dishonorable Life

It is regulated in Article 163 of the Turkish Civil Code.

“According to Article 163: If one of the spouses commits a humiliating crime or leads an undignified life and it cannot be expected from the other spouse to live with him/her due to these reasons, this spouse can always file for divorce.”

As it is clearly seen from the article of the law, not any crime but especially humiliating crime is mentioned. Here, how the crime committed is perceived in the eyes of the society is taken into consideration. For example, crimes such as theft, fraudulent bankruptcy, fraud, rape are considered as humiliating crimes. Committing these crimes once is enough to constitute a basis for divorce.

Leading a dishonorable life, on the other hand, is possible through continuous situations, not through momentary situations or a single act. Examples of such situations include drunkenness, gambling and working as a prostitute. The spouse must be living in a way that is considered undignified in the eyes of society.

In order to file for divorce on the grounds of committing a humiliating crime or leading a dishonorable life, it is not enough to prove the alleged acts. In addition, these reasons should make living together with the other spouse unbearable for the spouse filing for divorce. Despite the existence of the aforementioned situations, if these acts do not create a problem between the parties or if it cannot be established that they create a problem, a divorce case cannot be filed on the basis of these grounds. As it can be understood from here, these reasons are not absolute but relative grounds for divorce.

4-) Abandonment

It is regulated in Article 164 of the Turkish Civil Code.

“According to Article 164: If one of the spouses leaves the other with the intention of not fulfilling the obligations arising from the marital union or does not return to the common residence without a justifiable reason, if the separation has lasted for at least six months and this situation continues and the notice made by the judge or notary upon request is ineffective; the abandoned spouse may file for divorce. 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 shall also be deemed to have abandoned the other spouse.

Upon the request of the spouse who has the right to file a lawsuit, the judge or the notary public, without examining the merits, warns the abandoned spouse that he/she must return to the common residence within two months and the consequences that will arise if he/she does not return. This notice is made through announcement if necessary. However, the warning cannot be requested until the fourth month of the specified period for filing a divorce lawsuit has expired and the lawsuit cannot be filed until two months have passed after the warning.”

First of all, the abandonment must be for the purpose of not fulfilling the obligations arising from the marriage union. In other words, it should not be based on a just cause. For example, a divorce case based on abandonment cannot be filed against the spouse who is absent from the common residence due to fulfilling his/her military service. However, if the spouse who left the common residence based on a justifiable reason does not return to the residence despite the elimination of the justifiable reason, the fact of abandonment is still considered to have occurred.

In case the spouse is forced to leave the common residence, the spouse who forced the spouse will be deemed to have abandoned. In this case, the right to file for divorce based on abandonment is granted to the spouse who is forced to leave.

In order to file a divorce case based on abandonment, our law requires the spouse to be invited to the common residence by a notice. Four months must have passed since the abandonment for the notice to be served. It is very important that the notice is duly sent as it is considered as a condition of the lawsuit.

In divorce cases filed based on the grounds of abandonment, there is no period of limitation.

5-) Mental Illness

It is regulated in Article 165 of the Turkish Civil Code.

“According to Article 165; – If one of the spouses is mentally ill and the common life becomes unbearable for the other spouse because of this, this spouse may file for divorce, provided that it is determined by an official medical board report that the illness cannot be cured.”

In order for a divorce to be decided on the grounds of mental illness, the mental illness must occur after the marriage, make the common life unbearable for the other spouse, and it must be determined by an official medical board report that the illness cannot be cured. For example, psychological treatment of one of the spouses alone is not accepted as a reason for divorce for the other spouse.

In divorce cases filed based on the grounds of mental illness, there is no period of limitation.

GENERAL GROUNDS FOR DIVORCE

General grounds for divorce is regulated in Article 165 of the Turkish Civil Code.

According to Article 166: If the marriage union has been shaken to such an extent that they cannot be expected to maintain a common life, either spouse may file for divorce.

In the cases referred to in the paragraph above, if the fault of the claimant 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.

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 is deemed to have been irretrievably broken. In order to grant a divorce in this case, the judge must listen to the parties in person and be convinced that their wills are freely expressed and approve the arrangement to be accepted by the parties regarding the financial consequences of the divorce and the status of the children. The judge may make the changes deemed necessary in this agreement by taking into consideration the interests of the parties and the children. If these changes are accepted by the parties, decision of divorce shall be issued. In this case, the provision that the admissions of the parties shall not bind the judge shall not apply.

In the event that the lawsuit filed on any of the grounds for divorce is decided to be rejected and one year passes starting from the date of the finalization of this decision, if the common life could not be re-established for any reason whatsoever, the marital union is deemed to be irretrievably broken and a divorce is decided upon the request of one of the spouses. As can be seen, uncontested divorce and the inability to re-establish a common life are also regulated for the general grounds for divorce, which regulate the situation that the marriage union has been shaken from its foundations. If the divorce case cannot be filed on the basis of one of the special grounds for divorce, but if the parties cannot be expected to continue the marriage union, a lawsuit can be filed on the basis of general grounds.

As can be seen, the law stipulates that in the event of an uncontested divorce and the failure to re-establish a common life, the marital union shall be deemed to be fundamentally shaken. Faultful acts other than these cases and special grounds for divorce may be considered as grounds for irretrievable breakdown of the marital union.

1-) Irretrievable Breakdown Of The Marital Union

A spouse who thinks that the marriage has become unbearable may file for divorce by claiming that the marriage has been fundamentally shaken.

It should be noted that the most important difference that distinguishes special grounds for divorce from general grounds for divorce is that the existence of a special ground for divorce is sufficient for a divorce decision. In other words, if there is a special ground for divorce, the claimant does not have to prove that the other party is at fault in the occurrence of this ground. The only issue that needs to be proved is the existence of a special ground for divorce. On the other hand, for example, if a divorce case is filed based on the fact that the marital union has been shaken from its foundations and severe incompatibility, if the party filing the case cannot prove the fault of the other party, he/she will not be able to prove the incompatibility..

In cases in which both spouses are equally at fault, the parties will be granted a divorce. However, in this case, the parties will not be liable for compensation to each other. The lawsuit filed by the spouse who is completely at fault will be rejected if the other party does not accept the divorce, as it would be unlawful for a person to obtain rights based on his or her own fault and actions.

It is not possible to list the reasons that may break the marital union or make the marriage unbearable for the spouses one by one. As a matter of fact, there are court decisions that set forth various reasons that shake the marital union from its foundations and make it unbearable.

Examples of these reasons include; one spouse having different addictions that make the marriage unbearable, one spouse not providing the necessary financial and moral support to the other spouse, one spouse refraining from sexual intercourse with the other spouse, excessive jealousy, physical, psychological or economic violence, having an emotional relationship with someone else, slander, insulting remarks, depriving the spouse of the necessary support during illness or difficult times, or many other similar reasons.

As the acts that may break the unity of marriage irretrievable may also fall within the scope of one of the special grounds for divorce, depending on the circumstances and severity of the situation, they may also occur in compensable ways that do not require the termination of the marriage.

2-) Consensual Divorce

Consensual divorce has been added to our law as a reflection of the freedom of will. If the spouses decide to divorce among themselves and apply to the court for this to have legal consequences, the marital union is considered to be broken irretrieavably and the discretion of the judge narrows at this point. No fault is required in divorce cases with agreement. Each of the spouses can file an uncontested divorce case with or without fault.

In order for the court to decide according to the consensual divorce procedure, the agreement of the parties must contain certain conditions.

First of all, the spouses who are parties in consensual divorce cases must have a real will in this regard. In addition to this, the parties must file the consensual divorce case together or even if they do not file the case together, the other party must join the case filed by one of them. Considering the date of filing the lawsuit, at least one year must have passed from the date of the establishment of the marriage contract until the lawsuit is filed. In cases where it is understood that one year has not expired, the case may continue as a contested divorce case. Another condition of a consensual divorce case is that the parties must be heard by the judge in person. A decision on the consensual divorce case will not be reached unless the judge hears the parties at the same time and in person. . Another condition that causes the most disagreements in practice is the agreement of the parties on the financial consequences of the divorce and the custody of the children, alimony and the establishment of a personal relationship with the child. For this condition, it is not enough for the spouses to agree, the agreement between them must also be acceptable and enforceable by the judge. The judge evaluates whether the terms of the agreement are in accordance with the law, the interests of the joint child, if any, and public order.

3-) Failure to Re-establish Common Life

Failure to re-establish a common life is also called “de facto separation”. In case of de facto separation, the marriage union is considered to be fundamentally shaken. In order for this ground to be acceptable, there must be a divorce case filed by the spouses based on other grounds for divorce, the rejection of this case must be finalized and a period of 1 year must have passed since the finalization. This period, which was previously regulated as 3 years, was reduced to 1 year with the amendment made on 14/11/2024 with the Law No. 7532. If, despite the fulfillment of these conditions, the spouses are still unable to actually come together, the judge decrees the divorce of the couple with the acceptance that the marital union is irretrievably broken.

In cases based on this reason, the fault status in the previously rejected case is not important, and the reason for the failure to establish a common life is not effective in terms of the acceptance of the case. What is important is the finalization of the rejection decision in the previous case and the fact that one year has passed since then and that the common life has not been re-established within this period.

Not every actual reunion means that the common life is re-established. For example, if the parties come together for the children, for the needs of the children, to visit the children, to leave the children with the other spouse, to negotiate a divorce, to discuss a matter or to come together compulsorily, it cannot be said that a common life has been established.

GROUNDS FOR DIVORCE UNDER TURKISH LAW