Pehlivan & Güven Law FirmPublished:
Divorce is the legal procedure required to end a marriage. A marriage may be ended by the spouses through an uncontested (agreed) divorce, or, if the spouses cannot agree, through a contested divorce action.
Divorce may result from causes such as communication problems, diminishing respect, cultural incompatibilities, bad habits, disagreements over financial matters, or breach of the duty of fidelity that marriage imposes on the spouses. The law sets out the situations covering these causes as separate grounds.
Grounds for divorce:
Adultery is regulated as a ground for divorce in the Turkish Civil Code. The Code states that adultery is a ground for divorce but does not define it. In court decisions and legal doctrine, adultery is defined as "one of the spouses, while the marriage continues, voluntarily having sexual intercourse with a person of the opposite sex".
For adultery to constitute a ground for divorce, it is considered sufficient that one of the spouses has had sexual intercourse with a third person outside the marriage.
Adultery may be proven by any kind of evidence. Witness statements, photographs, message contents and audio recordings can be used as evidence in a divorce action based on adultery. However, this evidence must have been obtained lawfully. Recordings obtained by placing a listening device in the home the parties share, or audio recordings made by one party during a telephone conversation without the other's consent, do not qualify as evidence.
A divorce action on grounds of adultery cannot be filed in two situations. One of these is the expiry of the time limit; the other is where the adulterous spouse has been forgiven by the other spouse.
The spouse who learns of the adultery must file the divorce action before the time limit for the act of adultery expires. The time limit for filing an action on grounds of adultery starts from the date on which the spouse learns of the adultery. The spouse who learns of the adultery must file the divorce action based on adultery within six months. However, if the adulterous conduct is still continuing, the time limit will not apply. Once five years have passed since the adultery was discovered, it can no longer be relied upon.
Nor can an action be filed if the adultery has been forgiven. Continuing to live in the same home despite learning of the adultery does not necessarily mean forgiveness. The Court of Cassation has ruled that the fact that a spouse continues to live with the other spouse despite the latter's adultery should not be taken to mean that they have definitely forgiven their spouse.
Attempt on life, serious ill-treatment and degrading behaviour are also listed as grounds for divorce.
Attempt on life: any conduct by which one spouse makes an attempt on the other spouse's life. Conduct such as one spouse attempting to kill the other, encouraging suicide, or failing to take the measures necessary to prevent the other's death is considered to fall into this category.
Serious ill-treatment: any attack by one spouse on the physical integrity of the other spouse. Examples include one spouse beating or using physical violence against the other, or throwing them out of the house.
Degrading behaviour: conduct such as insulting or slandering.
In divorce actions based on attempt on life, serious ill-treatment or degrading behaviour, the right to sue lapses 6 months after the spouse learns of the ground for divorce and, in any event, after 5 years.
Leading a dishonourable life means adopting a lifestyle contrary to society's values and its notions of morality, honour and decency, and maintaining that lifestyle on a continuing basis.
Examples of conduct regarded as leading a dishonourable life include one spouse having an extramarital relationship with a third person or persons for some time, same-sex relationships, drug trafficking, alcohol and gambling addiction, working as a prostitute, and begging despite being financially well off.
One spouse committing a crime is also a ground for divorce. However, not every crime will justify a divorce judgment. If one spouse commits a degrading crime and, for that reason, the other spouse cannot be expected to continue the marriage, the other spouse may file for divorce. It is not required that the spouse who committed such a crime has been convicted or prosecuted.
Desertion is where one spouse, in order not to fulfil the obligations imposed by the marriage, voluntarily and permanently abandons the shared life and does not return to it without a justified reason. A divorce action on grounds of desertion cannot be filed against a spouse who left the family home for a justified reason.
A divorce action based on desertion depends on strict formal conditions being met. These are briefly explained below:
The first element of the first condition for divorce on grounds of desertion is that the spouses have a shared home. Next, one of the spouses must have left this shared home with the aim of ending the shared life. Either spouse leaving the shared home and starting to live with their own family or in another home amounts to desertion in the sense of abandoning the shared life. This desertion must continue for four months.
One spouse throwing the other out of the house or forcing them to leave the shared home does not count as desertion.
The second condition for filing a divorce action on grounds of "desertion" is that the other spouse serves a "warning to return home" on the spouse who left the shared home and has not returned for four months.
The warning to return home can be served by a judge's decision or through a notary. It warns the deserting spouse that they must return to the shared home within two months and informs them of the consequences of not returning.
A divorce action on grounds of desertion may be filed against a spouse who does not return to the shared home within two months of being served with the warning to return home.
In practice, divorce actions on grounds of desertion are not often brought in Turkish law, because they are subject to strict conditions. Most divorce actions filed on grounds of desertion are dismissed because the conditions for the action are not met.
If one spouse is mentally ill and, as a result, the shared life has become unbearable for the other spouse, a divorce action may be filed against the mentally ill spouse, provided that an official medical board report establishes that the illness cannot be cured.
For a divorce action based on mental illness to be filed, the mentally ill spouse's illness must be incurable.
Severe incompatibility is the general ground for divorce. It is the type of divorce action filed where continuing the marriage has become unbearable for one of the spouses, on the basis that the marriage has broken down fundamentally. Under the law, where continuing the shared life has become so unbearable that it cannot be expected of them, the spouses may request a divorce on this ground.
Degrading behaviour, addiction to alcohol and gambling, excessive debt, violence, and pressuring the spouse on matters such as traditions and religion can be given as examples of the fundamental breakdown of the marriage.
One spouse constantly humiliating the other in front of friends and family, the spouses disrespecting each other's values, insulting each other's parents, and infidelity are among the grounds for this type of divorce action.
The parties can agree between themselves on the financial consequences of the divorce and the custody of the children, draw up a "divorce protocol", submit it to the court, and be divorced quickly in a single hearing.
If the marriage has lasted at least one year, and the spouses apply together or one spouse accepts the action filed by the other, the marriage is deemed to have broken down fundamentally and an uncontested divorce may be granted.
For the judge to grant a divorce, the judge must hear the parties in person and be satisfied that they have expressed their will freely. Taking into account the interests of the parties and the children, the judge may make changes to the "divorce protocol" where they consider it necessary.
For a divorce to be granted on grounds of de facto separation, one of the spouses must previously have filed an action based on any ground for divorce, and that action must have been dismissed by the court with the dismissal becoming final. An action based on this article can be filed once three years have passed from the date on which that dismissal became final.
Article 166/IV of the Turkish Civil Code, which regulates divorce on grounds of de facto separation, was annulled by the Constitutional Court on 22.02.2024. As of 2024, no new provision has been introduced on this matter.
