The Turkish Civil Code No. 4721 regulates certain grave acts that bring the marital union to an end as specific grounds for divorce. The gravest of these is an attempt by one spouse, intentionally and culpably, upon the life of the other. Where such an act exists, no further justification for divorce is required. Since the spouse who commits the act is deemed to be gravely at fault, in addition to causing the irretrievable breakdown of the marital union that spouse may also be held liable for pecuniary and non-pecuniary damages.
The wording of the statute uses the expression "attempt upon life"; yet, in terms of the value protected, the technically accurate term is "attempt upon a person’s life". While "life" points to an abstract concept, "a person’s life" corresponds to the physical existence of the individual; an attempt to kill someone is an assault directed straight at that existence. Nevertheless, adhering to the letter of the provision in force, we use the term "attempt upon life" in this note.
What Is Divorce on the Ground of Attempt upon Life?
Article 162 of the Turkish Civil Code No. 4721 treats an attempt by one spouse upon the life of the other as a ground for divorce in its own right. An attempt upon life covers every kind of act undertaken by one spouse with the aim of killing the other. It is not necessary for the act to take the form of a direct physical assault; it may also be committed by indirect means. One spouse attempting to poison the other, drawing the other into a fatal accident, or deliberately refraining from assistance while the other is in mortal danger may be assessed within this scope.
Since this ground is among the specific grounds for divorce, where the act is proved the judge is obliged to grant the divorce. In other words, whether the incident has caused the irretrievable breakdown of the marital union is not separately discussed; the existence of the act is sufficient in itself.
Conditions Required for Bringing the Action
The bringing of an action within the scope of Article 162 of the Turkish Civil Code No. 4721 depends on the fulfilment of certain conditions together. We examine these conditions below under separate headings.
An Attempt by One Spouse upon the Life of the Other
The attempt upon life must be an act in the nature of an attempted killing. The intent need not necessarily manifest itself in a direct physical assault; indirect conduct may also fall within this scope. By way of example:
- Causing the death of a spouse by refraining from assistance in a situation involving mortal danger,
- Driving a spouse to suicide or encouraging them in that direction,
- Directly attempting to kill a spouse.
The Act Must Have Been Committed Intentionally
An attempt upon life must be the product of conscious and deliberate conduct. The act is required to pursue the aim of harming the life of the spouse and to involve grave fault. Harm arising from an accident, or situations stemming from mere negligence, cannot be characterised as an attempt upon life.
Compliance with the Six-Month and Five-Year Periods
Pursuant to Article 162 of the Turkish Civil Code No. 4721, the right of action must be exercised within 6 months from the date on which the victim spouse learns of the situation. Beyond this period, the action may be brought within a maximum of 5 years from the occurrence of the incident.
Both periods are in the nature of a preclusive period and are taken into account by the court of its own motion. Accordingly, a divorce action brought after the expiry of the period is dismissed even if the opposing party raises no objection to that effect.
The Act Must Not Have Been Forgiven
In order to rely on this ground, the victim spouse must not have forgiven the other party. If an intention to forgive has been expressed after the incident, or the marriage has been continued in its ordinary course, no action may be brought on the basis of the same act.
Forgiveness may be declared expressly in words, but it may also be inferred from conduct. In practice the following situations are regarded as indications of forgiveness:
- The spouses continuing to live together and to maintain the marital relationship after the incident,
- The victim spouse sending the other party renewed messages of affection and trust,
- The victim spouse stating orally or in writing that they have forgiven the other.
Conduct of this nature extinguishes the right to bring an action on the ground of an attempt upon life. Conversely, if no forgiveness has taken place and the continuation of the marriage stems from necessity, that situation is assessed separately by the court.
Burden of Proof and Available Evidence
In a divorce action brought on the ground of an attempt upon life, the spouse advancing the allegation must establish it by concrete evidence. Since this ground, regulated in Art. 162 of the Turkish Civil Code No. 4721, is one of the specific grounds for divorce, where the act is proved the judge becomes obliged to grant a divorce.
The principal items of evidence that may be used in the proceedings are as follows:
- Statements of persons who witnessed the incident or have knowledge of it
- Forensic medical reports establishing matters such as battery, poisoning or assault
- Investigation records drawn up by the police and the public prosecutor’s office
- A conviction handed down in criminal proceedings brought on account of the attempt upon life; such a decision carries strong evidential value
- Telephone conversations, message exchanges and security camera footage
- Audio and video recordings; their admissibility before the court depends on their having been obtained lawfully
An attempt upon life is not confined to direct physical assault; indirect conduct may also be assessed within this scope. For instance, one spouse encouraging the other to commit suicide, making an attempt to poison them, or deliberately failing to assist them at a moment of mortal danger are examples of such acts. In weighing the evidence, the court takes all the circumstances of the incident into account together.
Assessment of Evidence in Court of Cassation Practice
Decisions of the Court of Cassation emphasise that the examination of evidence must be conducted meticulously in divorce actions founded on an allegation of an attempt upon life. The principal approaches adopted by the higher court are as follows:
- Psychological pressure and threats may also be assessed within this scope: Constantly threatening a spouse with death, or driving them to suicide, may under the case law be regarded as an attempt upon life.
- A final criminal conviction is taken into account in the divorce file: Where a final criminal decision exists to the effect that a spouse has attempted upon the other’s life, that decision is accepted as strong evidence in the divorce action. Conversely, an acquittal in the criminal proceedings does not conclusively lead to the result that there has been no attempt upon life.
- Witness accounts are considered in the context of the past relationship: The setting in which the incident occurred and the previous relationship of the spouses are assessed together; if one of the parties has resorted to violence or made threats during the marriage, that history is also taken into account.
- All the circumstances of the incident are examined even in the absence of a direct assault: Leaving a spouse injured or ill and abandoning them without assistance may be characterised as an attempt upon life even where it has not resulted in death.
In line with settled case law, the evidence in such actions is expected to be both strong and lawfully obtained. The legal validity of the evidence submitted may directly determine the course of the proceedings.
Pecuniary and Non-Pecuniary Damages in the Action
In a divorce action brought on the ground of an attempt upon life, having regard to the severe harm suffered by the spouse whose life was attacked, a right arises to claim pecuniary and non-pecuniary damages. Pursuant to Article 174 of the Turkish Civil Code No. 4721, a spouse who has suffered loss on account of the events leading to the divorce may advance these claims.
Since an attempt upon life establishes the grave fault of one of the spouses, the likelihood of damages being awarded in favour of the victim spouse is high.
Pecuniary Damages Where There Is an Attempt upon Life
Pecuniary damages are claimed with a view to compensating the loss of a spouse who has suffered economic detriment as a result of the divorce. Since an attempt upon life is regarded as one of the gravest instances of fault in divorce actions, higher sums may be awarded in favour of the victim spouse.
In determining the amount, the court has regard to the following criteria:
- The effects of the attempt upon life on the health and working life of the victim spouse,
- The changes occurring in the victim spouse’s standard of living after the divorce,
- The financial circumstances of the parties,
- The economic loss suffered by the victim spouse; for example, loss of income or the deprivation of the economic support provided within the marriage.
For example, if the attempt upon life has impaired the physical or mental health of the victim spouse so as to render them unable to work, the court may increase the amount of damages in view of that situation.
The function of pecuniary damages is to prevent the victim spouse from falling into an economically weak position after the divorce. For this reason the courts make their assessment within the framework of the principle of equity and determine an appropriate sum.
Non-Pecuniary Damages Where There Is an Attempt upon Life
Non-pecuniary damages may be claimed in order to make good, to a degree, the psychological trauma and fear experienced by the victim spouse, the humiliating consequences and the harm suffered within society. As an attempt upon life is one of the gravest assaults that may be directed against the marital union, such claims are seen to be accepted by the courts.
Article 174(2) of the Turkish Civil Code No. 4721 affords a spouse whose personality rights have been infringed the possibility of claiming non-pecuniary damages. In fixing the amount, the court assesses the following elements:
- Consequences suffered by the victim spouse such as fear, psychological pressure and depression,
- The manner in which the act was carried out; for example, an attempted killing taking place in front of everyone, or the incident becoming known to the victim’s family and social circle,
- The violence, threats and other traumatic events experienced during the marriage,
- The repercussions of the incident on the victim spouse’s standing in society,
- The psychological effects the act has left on the victim spouse.
By way of example:
- If one of the spouses has attacked the other with a lethal instrument such as a knife or a firearm and attempted to kill them, and the victim spouse has subsequently suffered serious trauma, the amount of non-pecuniary damages may be increased.
- Constant death threats and the exertion of psychological pressure, where established by documents, may justify an award of substantial non-pecuniary damages.
The purpose of non-pecuniary damages is partially to compensate the moral devastation experienced by the victim spouse; they do not serve a punitive function as regards the spouse at fault. Even so, it is essential that the sum determined accord with equity.
Custody Where There Is an Attempt upon Life
In divorce actions brought on the ground of an attempt upon life, custody of the children is determined by the court by reference to the criterion of the best interests of the child. Pursuant to the Turkish Civil Code No. 4721, in deciding with which parent custody is to remain, the physical, psychological and social development of the child are considered together.
An attempt upon life is fault of such gravity that it may directly affect the right of custody. For this reason the parent who commits such an act may fall into a disadvantageous position as regards custody.
The Effect of the Act on the Custody Decision
In deciding on custody the court takes the following matters into consideration:
- With which parent the physical and psychological health of the child will be better protected,
- Whether the acts of violence were also directed at the child and the extent to which the child has been affected by these events,
- Whether the spouse who attempted upon the other’s life poses a threat to the safety of the child.
Does the Spouse Who Attempted upon Life Lose Custody?
- In reaching its decision the court may have recourse to a report from a pedagogue or a social worker.
- Whether the violence was directed solely at the spouse is examined separately; if the child has also been affected directly or indirectly, the parent who committed the act may be deprived of custody.
- If there is a possibility that the spouse who attempted upon the other’s life will harm the physical or psychological health of the child, it is highly likely that custody will be granted to the other spouse.
An attempt upon life does not invariably result in the loss of custody. However, if it creates an environment that will adversely affect the child’s mental health and endangers the child’s safety, the court may decline to leave custody with that parent.
Alimony Where There Is an Attempt upon Life
Under the Turkish Civil Code No. 4721, alimony is regulated with a view to enabling a spouse who falls into economic difficulty after the divorce to sustain their livelihood. In actions brought on the ground of an attempt upon life, the question of alimony is assessed on the basis of the ground for the divorce and the parties’ respective fault.
- Payments such as poverty alimony or child support may be awarded in favour of the victim spouse.
- Since the spouse who attempted upon the other’s life is deemed to be gravely at fault in the divorce, that spouse’s claim for poverty alimony is dismissed by the court.
Division of Property Where There Is an Attempt upon Life
In divorce actions brought on the ground of an attempt upon life, the division of property is as a rule conducted in accordance with the general provisions on the matrimonial property regime. That said, the Turkish Civil Code No. 4721 makes special provision for instances of grave fault such as an attempt upon life. In the division of property acquired during the marriage, the share to be received by the spouse who attempted upon the other’s life may, as equity requires, be reduced or removed altogether.
The fundamental principle of the division of property is that the spouses share equally the property they have acquired during the marriage. However, culpable conduct of the gravity of an attempt upon life may disturb that equality. Having regard to the rights of the victim spouse, the court may reduce or entirely remove the share of the spouse at fault in the division.
Reduction of the Participation Claim of the Spouse at Fault
Article 236 of the Turkish Civil Code No. 4721 confers on the judge the power to reduce or entirely remove the participation claim which a gravely culpable spouse would obtain from the division of property.
Turkish Civil Code No. 4721, Art. 236
"In the event of divorce on the ground of an attempt upon a person’s life (upon life), the judge may decide that the share of the culpable spouse in the residual value be reduced in accordance with equity or removed."
This provision was introduced in order to prevent the victim spouse from suffering economic detriment a second time.
Courts with Subject-Matter and Territorial Jurisdiction
As regards subject-matter jurisdiction, the judicial forum competent to hear divorce actions brought on the ground of an attempt upon life is the Family Court. If no Family Court has been established in the place where the action is to be brought, such actions are heard by the Civil Court of First Instance sitting as a Family Court.
As regards territorial jurisdiction, pursuant to Article 168 of the Turkish Civil Code No. 4721 the action may be brought in the following places:
- The Family Court of the place where the spouses last resided together for more than 6 months before the divorce action,
- The Family Court of the place of domicile of either spouse.
Independent Legal Assessment
Since an attempt upon life is among the absolute grounds of divorce law, once proved it leaves the judge no margin of discretion. The real difficulty in practice, by contrast, lies in establishing that the act was committed with the intent to kill. Whether allegations of grievous bodily harm, threats or violence reach the level of an attempt upon life is most often assessed together with the contents of the criminal file; for this reason it is of great importance that the two sets of proceedings be conducted in a coordinated manner.
Nor should it be overlooked that the process is not confined to the divorce judgment alone. Since the outcomes relating to damages, custody, alimony and the participation claim all rest on the same finding of fault, the claims must be structured coherently from the outset. In a given file the following matters in particular should be given priority:
- Establishing by documentary evidence the moment at which the six-month and five-year preclusive periods began to run
- Preparing, against an allegation of forgiveness, evidence showing that living together stemmed from necessity
- Bringing the criminal investigation file into the divorce proceedings and monitoring whether the decision has become final
- Advancing the claims for pecuniary and non-pecuniary damages expressly and with stated amounts in the statement of claim
- Establishing the extent to which the child has been affected by means of expert reports and shaping the custody claim accordingly
- Separately advancing a claim for the reduction or removal of the participation claim under Art. 236 of the Turkish Civil Code No. 4721
Independent Legal provides advisory and litigation services throughout the entire process, from determining the litigation strategy to pursuing claims for damages and under the matrimonial property regime, in divorce disputes arising from family law that are founded on grave fault.