The marriage union imposes on the spouses the duty to live together, to show solidarity and to comply with their mutual obligations. In practice, however, the tension between the parties at times reaches such a point that living apart ceases to be a temporary state and turns into a settled arrangement. The legislature has not disregarded this situation; where an earlier action for divorce has been dismissed, the judgment of dismissal has become final and, a year having passed, the parties have been unable to come together again, it has accepted that the marriage union has broken down irretrievably.
In such a situation either spouse may apply to the court and seek the termination of the marriage on the ground of the failure to restore common life. The examination the judge will carry out concentrates on how long the separation has lasted and on whether the union has in fact continued.
In this briefing note we address the statutory basis of that ground for divorce, the conditions required, the conduct of the proceedings and the criteria the courts take as a basis in their assessment.
An Overview of the Concept of the Failure to Restore Common Life
The concept denotes the acquisition of a permanent character by the spouses’ living apart; it denotes that the continuation of the marriage can no longer be expected of the parties or has become impossible in fact.
The Turkish Civil Code No. 4721 (hereinafter referred to as the "Turkish Civil Code") counts this situation among the grounds for divorce. By that provision, where certain conditions come together, the spouses are afforded the possibility of bringing the marriage union to an end. The provision is located in the fourth paragraph of Article 166 of the Code, which bears the marginal heading "Irretrievable breakdown of the marriage union":
Turkish Civil Code No. 4721, Art. 166(4)
"Where it is decided that an action brought on any of the grounds for divorce be dismissed and one year has passed from the date on which that decision became final, if for whatever reason common life has not been restored, the marriage union shall be deemed to have broken down irretrievably and divorce shall be granted upon the request of one of the spouses."
How Is De Facto Separation Defined?
The Legal Framework of Actual Separation
The de facto separation referred to both in the definition above and in the text of the statute is known in legal scholarship as actual separation. The concept covers the situation in which, while the marriage subsists, the spouses cease to share the same home and begin to live at separate addresses, and render that arrangement permanent. Not every instance of living apart produces a divorce for the purposes of this provision, however; the statute requires certain further conditions before the ground in question can be relied upon.
Where those conditions are not met and yet the spouses have lived apart for years, there is a breach of the duty to live together; that situation may in turn form the subject matter of an action for divorce brought pursuant to Turkish Civil Code No. 4721, Art. 166(1).
The Criteria Required for Accepting That the Marriage Has Ended in Fact
Since we address the conditions of the action in detail in the section below, we confine ourselves here to drawing a general framework. Accordingly, the uninterrupted continuation of the separation, the absence of any expression of intention by the parties towards reunion and the dismissal of an action for divorce brought previously stand out as the decisive criteria in accepting that the marriage has in fact ended.
The Legal Nature of This Ground for Divorce and the Approach of the Court of Cassation
The provision of Turkish Civil Code No. 4721, Art. 166(4) treats the failure to re-establish the union for one year following the dismissal of an action for divorce as a ground for divorce in its own right. The premise behind the provision is clear: the disagreement between the spouses has acquired a permanent character and the marriage has in fact lost its function.
This approach has also found expression in the case law of the higher court.
In the decision of the 2nd Civil Chamber of the Court of Cassation, docket No. 2015/17786, decision No. 2016/9720, the fact that the spouses had not come together for three years following the dismissal of an action for divorce was treated as an indication that the marriage union had broken down irretrievably. (The text in force at the date of the decision provided for a period of three years; under the current provision the period required is one year.) The decision found that the action for divorce brought by the claimant husband before the family court had been dismissed, that the judgment had become final on 14.04.2011 and that common life had not been restored in the three-year period following that date.
In decision No. 2017/2797, given by the same Chamber in the file bearing docket No. 2015/22362, it was stated that where there is between the parties an action brought on one of the grounds for divorce and dismissed, and the fact of living apart is relied upon in the proceedings, the evidence must be assessed within the framework of the final paragraph of Article 166 of the Turkish Civil Code No. 4721 and judgment given according to the result thereby reached.
In short, the case law reads the parties’ failure to make any effort towards reunion during the period of separation as a sign that the marriage has become unsustainable, and requires that a divorce be granted where the conditions are present.
The Conditions of the Action
Proceeding from the text of the provision, it may be said that this ground for divorce is subject to four conditions: the existence of an action for divorce previously heard between the spouses; the expiry of a period of one year since the decision dismissing that action became final; the failure, for whatever reason, to restore the union throughout that period; and the bringing of an action by one of the spouses in reliance on that ground.
The Earlier Action for Divorce Must Have Ended in Dismissal
For Turkish Civil Code No. 4721, Art. 166(4) to be relied upon, there must exist between the parties an action brought on any ground for divorce and dismissed.
It is of no importance which ground was relied upon; any action for divorce dismissed by a judgment that has become final may be taken as the basis for this provision. That the decision of dismissal has become final is in the nature of a procedural requirement and must be taken into account by the judge of their own motion. (Court of Cassation, Assembly of Civil Chambers, docket No. 2017/2-1286, decision No. 2019/142)
The Legal Consequences of the Decision of Dismissal
That the earlier action was dismissed is the precondition for having recourse to this ground; it is not sufficient on its own, however, and the judgment of dismissal must also have become final. The dismissed action shows, on the one hand, that one of the spouses took the first step towards ending the marriage; on the other hand, the parties’ inability to re-establish the union after that decision indicates that the marriage union has in fact come to an end.
Actions Dismissed by Reason of Withdrawal
The basis of an action for divorce founded on de facto separation is constituted by the earlier action that was dismissed. The Court of Cassation takes the view that this condition is to be regarded as fulfilled where the action for divorce ended in withdrawal as well, since withdrawal is accepted as touching the substance of the right. The details of the matter are examined separately under the heading of withdrawal from an action.
The Expiry of One Year from the Decision of Dismissal Becoming Final
The Constitutional Court rightly annulled the rule providing for a waiting period of three years in respect of this ground for divorce, on the ground that it violated the right to respect for private life and family life. Following the annulment decision, by the legislative amendment published in the Official Gazette of 27.11.2024 the period of de facto separation was reduced from three years to one year.
Accordingly, although the repealed provision and a great many decisions of the Court of Cassation speak of a period of three years, in actions brought after that date it is sufficient that only one year has passed since the decision of dismissal became final.
The Starting Point of the One-Year Period
The statute requires that the spouses have remained apart for one year following the dismissal of the action for divorce. The period begins to run on the date on which the judgment of dismissal given in the first action became final and must have been completed at the moment the new action is brought. The decision of dismissal may be given by a Turkish court or may equally belong to a foreign court; in that case the one-year period is calculated from the date on which the judgment recognising the foreign decision in the Turkish courts became final.
The One-Year Period in Actions Ending in Withdrawal
In practice the parties bring an action for divorce and then withdraw from it at the first hearing, so as to set the waiting period running early. That is because the Court of Cassation treats a decision of dismissal given by reason of withdrawal as an "action ending in dismissal" within the meaning of Turkish Civil Code No. 4721, Art. 166(4). In calculating the one-year period, the formal finality of the withdrawal is not awaited; the period begins to run from the date on which the declaration of withdrawal reaches the court.
Calculation of the Period
Since this period constitutes a condition of existence tied to the accrual of the right, the judge must examine the matter of their own motion. The judge calculates the period by determining the date on which the decision of dismissal given in the earlier action for divorce became final.
The Union Must Not Have Been Restored During the Period
Establishing De Facto Separation
The existence of de facto separation is established by the following elements:
- The spouses not sharing the same home,
- No attempt whatever being made to continue the union,
- This picture being established by the court through an examination of witness statements, the correspondence between the parties and their way of life.
The Matters the Court Takes as a Basis in Its Assessment
It should first be noted that what is to be understood by the establishment of common life is the coming together of the spouses once more in such a way as to exercise the rights and assume the duties conferred by the general provisions on marriage.
As has also been adopted in the case law of the Court of Cassation, meetings required by the meeting of the children’s needs or by a justified reason such as a death or a wedding do not produce the result that common life has been restored for the purposes of Turkish Civil Code No. 4721, Art. 166(4). (Court of Cassation, Assembly of Civil Chambers, docket No. 2017/2-1286, decision No. 2019/142)
Indeed, the fact that one of the spouses went from time to time during the period of separation to where the other was in order to see their child does not mean that the union has been restored either. In the decision of the 2nd Civil Chamber of the Court of Cassation, docket No. 2012/20790, decision No. 2013/20394, the claimant’s going from time to time, after the judgment of dismissal had become final, to the place where the respondent was in order to see their child was not regarded as sufficient for accepting that the union had been restored.
Where the evidence establishes the separation, the fact that the parties stayed in separate rooms of the same home during that period likewise does not alter the result. In decision docket No. 2005/4782, decision No. 2005/5442 of the same Chamber it was found that throughout the de facto separation the spouses lived in different rooms of the same house, that the wife could not leave the house because she had nowhere to go, but that the parties had never come together; it was stated that this way of life could not be interpreted as meaning that common life had been restored, and that the dismissal of the action was therefore not correct where a divorce ought to have been granted.
As will be seen from the examples given, the courts assess, in the light of the evidence submitted to the file, whether the spouses have genuinely led a common life and whether any effort to that end has been made.
One of the Spouses Must Have Brought an Action for Divorce
The Right to Bring an Action
As governed by Turkish Civil Code No. 4721, Art. 166(4), where the conditions listed above are met either spouse may apply to the court and seek a divorce. In this respect it is of no importance on which side the claimant stood in the earlier action that was dismissed, or whether they are at fault in the ending of the marriage.
The judge hearing the action must without fail review the two matters that are in the nature of preconditions — the existence of an action for divorce previously brought and dismissed, and the expiry of one year since the decision of dismissal became final. A judge who, within the framework of the evidence submitted to the file, forms the view that all the conditions are met must grant a divorce.
The Burden of Proof in the Action
In proceedings heard pursuant to Turkish Civil Code No. 4721, Art. 166(4), once the judge has determined that the one-year period has expired, the burden of proof as to whether common life has been restored falls on the claimant party.
In the decision of the 2nd Civil Chamber of the Court of Cassation, docket No. 2008/12941, decision No. 2008/12538 it was likewise emphasised, with reference to Article 6 of the Turkish Civil Code No. 4721, that the burden of proving that the period laid down in the statute has passed since the date on which the judgment dismissing the action for divorce became final, and that common life has not been restored, belongs to the claimant husband.
At this point the claimant may make use of witness statements, message and e-mail records, the files relating to maintenance awarded, enforcement proceedings and criminal investigation files.
Where de facto separation has arisen in the marriage and that situation has lasted at least one year, the possibility arises of bringing an action for divorce founded on de facto separation. That said, it is advisable that the legal options and the possible outcomes be assessed in detail before recourse is had to litigation.
Independent Legal Assessment
Actions under Turkish Civil Code No. 4721, Art. 166(4) differ from other divorce actions in that the question of fault is not central. The focus of the proceedings is not why the marriage ended but whether the parties in fact came together in the period following the decision of dismissal becoming final. By contrast, an examination of fault continues to arise as regards claims for maintenance, damages and custody; for that reason it is not sufficient, when the statement of claim is being constructed, to focus solely on the condition as to time.
An error in the calculation of the period is one of the most frequent causes of the loss of rights in practice. A failure to establish the date of finality by documents, or a misreading of brief contacts occurring during the period of separation, may lead to the dismissal of the action without the merits being examined.
In constructing a road map in a concrete dispute the following heads should be addressed as a matter of priority:
- Submitting to the file from the outset the judgment in the earlier action for divorce bearing the annotation of finality
- Correctly determining the moment at which the period begins in files that ended in withdrawal
- Explaining the nature of the meetings that took place during the period of separation (personal contact with the child, a funeral, a wedding and the like)
- Grounding the assertion of living separately within the same home with the support of witnesses and documents
- Constructing the claims for maintenance, damages and custody together with the request for divorce
- Where a foreign court decision is relied upon, taking as a basis the date on which the judgment of recognition became final
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