The survival of the relationship between spouses rests on mutual respect and trust. Where serious attacks destroy that foundation, continuing a shared life often becomes impossible. Article 162 of the Turkish Civil Code No. 4721 regulates gravely degrading conduct as an absolute ground for divorce. Because it is an absolute ground, the claimant spouse is not additionally required to prove that the marital union has broken down; since the legislator accepts that conduct of this kind has already made the union intolerable, the judge does not treat the sustainability of the union as a separate matter for examination.
For the action to succeed, the spouse at fault must have directed a serious attack against the other spouse’s personality rights, standing or dignity. The wording of the statute does not enumerate one by one which acts fall within this scope. That gap makes it necessary to address each dispute within its own circumstances; the court assesses, on the basis of the events as a whole, the extent to which the specific conduct has damaged the spouse’s dignity.
The Concept of Degrading Conduct
Degrading conduct denotes serious attacks directed by one spouse against the honour and dignity of the other. Such attacks need not take a verbal form; written statements and physical acts are assessed within the same scope. Using expressions containing insults and abuse, uttering words that humiliate the spouse, sharing demeaning content through social media accounts, or making dignity-damaging statements by means such as letters and e-mails all fall under this heading.
Insults and Unfounded Accusations Against Honour and Dignity
Slanders targeting the spouse’s dignity also fall within this concept. Where one spouse falsely accuses the other of theft, of dishonourable conduct or of leading an immoral life, this is characterised as gravely degrading conduct.
In a decision of the Court of Cassation to this effect, it was concluded that a party who expelled his wife from the home on the allegation that she “was not a virgin” had displayed gravely degrading conduct and was seriously at fault in the divorce. Imputations and humiliating attitudes of this nature are acts that shake the marital union at its foundation and provide a basis for divorce.
Infidelity During the Proceedings
A further point that merits attention is that adultery and conduct approaching adultery may likewise be assessed within the scope of this provision. The Court of Cassation has treated the attitude of a spouse who engaged in sexual relations with another person while the divorce proceedings were still pending as degrading conduct within the meaning of Article 162 of the Turkish Civil Code No. 4721.
The scope is not confined to adultery. Conduct that creates the impression of infidelity may also come under this heading. A spouse appearing on intimate terms with another person, having photographs taken in a close embrace, or engaging in acts involving intimacy may be relied upon as a ground for the action, since such behaviour is of a nature to damage the other spouse’s dignity even if it does not extend to sexual intercourse.
In files of this kind the aggrieved spouse may claim non-pecuniary damages and may ask the court to establish that the other party is seriously at fault.
Conditions of the Action
Article 162 of the Turkish Civil Code No. 4721 permits a divorce action to be brought where one spouse has engaged in gravely degrading conduct towards the other. The acceptance of the claim, however, depends on the following conditions being met together.
The Attack Exceeding the Threshold of Gravity
The first condition sought is that the conduct be of a nature to cause serious harm to the other spouse’s honour, dignity and personality rights. These attacks, which may appear in the form of words, writing or acts, may be made directly or may equally be directed by indirect means. Typical manifestations encountered in practice include humiliating the spouse in public, swearing at the spouse and using demeaning expressions. Making insulting posts through letters or social media, directing unfounded accusations of infidelity at the spouse, and damaging the spouse’s dignity by means of physical violence or threats are assessed within the same framework.
The existence of conduct of this gravity is among the fundamental conditions for the action to be heard.
The Conduct Being Carried Out Intentionally
The second condition is that the act be committed deliberately and intentionally. Expressions that do not carry an intention to target the other spouse’s honour and dignity, or that arise from a misunderstanding, may not be regarded as suitable to found this ground.
A word spoken in jest, or an expression uttered uncontrollably in a moment of anger, is not in every case accepted as degrading conduct. The court assesses events of this nature not on the basis of isolated sentences but within the entirety of the parties’ relationship.
Compliance with the Preclusive Periods
Article 162 of the Turkish Civil Code No. 4721 subjects the right of action to two separate periods. The aggrieved spouse must bring the action within 6 months of the date on which the conduct became known. In addition, recourse to the courts may be had within a maximum of 5 years from the date on which the event occurred.
These periods are preclusive in nature and are taken into account by the court of its own motion. Where the periods are missed, the right of action lapses and the claim is dismissed on grounds of time.
The Conduct Not Having Been Forgiven
If the aggrieved spouse has forgiven the other party’s degrading conduct, an action may no longer be brought on the basis of that event. An intention to forgive may be expressed by an explicit declaration or may equally arise by implication. Continuing the marital union without interruption after an insult or humiliation, showing the spouse affection and closeness in a manner indicating acceptance of the conduct, or displaying attitudes amounting to forgiveness instead of taking the matter to court are among the behaviours regarded in practice as indicators of forgiveness.
If the court concludes from the file that the aggrieved spouse has forgiven, it may dismiss the divorce claim.
Proof and Means of Evidence
Different types of evidence may be relied upon in proving an allegation of degrading conduct.
Documentary evidence. WhatsApp messages, SMS messages and e-mails; social media posts that demean, mock or insult the spouse; and letters and notes containing humiliating expressions belong to this group. For example, where one spouse issues insults over WhatsApp in terms such as “You are good for nothing, you are a disgrace, no one is left who would look at your face”, this is assessed as strong evidence in the proceedings.
Witness statements. Persons who personally witnessed the conduct may give statements before the court. Those holding the status of witness may be family members, but equally friends, neighbours or people from the work environment. The account of a person who observed an insult or humiliation occurring within the family setting or among friends may be decisive in confirming the allegation.
Audio and video recordings. Recordings obtained lawfully may be used to establish insults or demeaning words. By contrast, recordings that infringe the privacy of private life may be regarded as unlawfully obtained evidence and may not be taken into account by the court. While an audio recording showing that the spouse issued insults in public or in a private setting may carry evidential value, covert recordings made without the other party’s consent may not pass this scrutiny.
Medical and expert reports. Where the conduct has reached the level of psychological pressure, a report obtained by the aggrieved spouse from a psychiatrist or psychologist may be submitted to the file. Where physical violence is in issue, hospital reports are also used as evidence. A report obtained from a psychiatric clinic by a spouse who has been continuously humiliated and insulted, on account of the trauma suffered, will be taken into consideration in the court’s assessment.
Pecuniary and Non-Pecuniary Damages
In actions founded on this ground the aggrieved spouse has the right to claim pecuniary and non-pecuniary damages. Article 174 of the Turkish Civil Code No. 4721 affords this possibility of claim to the party who has suffered loss because of the events leading to the divorce. Since degrading conduct is regarded as an indicator of serious fault, the likelihood of the aggrieved spouse obtaining damages is high.
Pecuniary Damages
Pecuniary damages are intended to compensate the losses of the spouse who suffers economic detriment as a result of the divorce. Since the conduct in question constitutes serious fault shaking the marital union at its foundation, a higher sum may be awarded in favour of the aggrieved spouse.
In assessing the amount, the court has regard to the following criteria:
- The economic loss suffered by the aggrieved spouse following the divorce; loss of income and deprivation of the financial support provided within the marriage
- The financial means of the parties
- The changes occurring in the aggrieved spouse’s standard of living upon the divorce
- The effects of the conduct on the aggrieved spouse’s working life and mental health
Indeed, if the aggrieved spouse has become unable to work because of what has occurred, has been adversely affected psychologically or has lost professional standing, this picture may be assessed by the court and reflected in the amount of damages.
The function of pecuniary damages is to prevent the aggrieved spouse from falling into an economically weak position after the divorce. Courts therefore carry out an assessment within the framework of the principle of equity and award the sum they consider appropriate.
Non-Pecuniary Damages
Non-pecuniary damages are directed at compensating the psychological devastation suffered by the aggrieved spouse and the damage caused to that spouse’s standing in society and personality rights. Their basis is Article 174(2) of the Turkish Civil Code No. 4721; a spouse whose personality rights have been attacked may bring a claim relying on this provision.
Among the elements the court takes into account in determining the amount are the psychological effects the conduct has had on the aggrieved spouse, the impact of the events on that spouse’s social standing, and the setting and manner in which the attack took place. Whether the insults were public, or whether the spouse was humiliated before a group, is separately assessed in this context. Humiliation and psychological pressure repeated throughout the marriage, and the depression and loss of self-confidence they cause, are also brought into the balance.
Examples of situations capable of founding a claim for non-pecuniary damages include the following: the spouse being insulted, made the subject of mockery or humiliated in front of a group; the spouse’s standing being damaged by slander; the spouse being subjected to serious insults through social media or written means of communication; and the spouse being made the target of demeaning remarks in front of family or close acquaintances.
The aim of these damages is to remedy to some extent the emotional devastation suffered by the aggrieved spouse; they do not carry a punitive character as regards the spouse at fault. Courts assess an amount consistent with equity.
Effects on Custody
In divorce actions founded on this ground, custody is determined having regard to the best interests of the child. Under the Turkish Civil Code No. 4721, the physical, psychological and social development of the child is taken as the basis when deciding which parent is to retain custody.
Since a spouse who engages in degrading conduct is regarded as seriously at fault, this may have an adverse effect as regards a custody claim. A parent who poses a risk to the child’s safety, health and development is less likely to obtain custody.
The Criteria the Court Considers
The following matters are assessed when a custody decision is made:
- Whether the conduct has affected the child directly or indirectly
- Whether the parent concerned poses a threat to the child’s safety
- The extent to which the child has been affected by what has taken place between the parents
- With which parent the child’s physical and mental health will be better protected
The psychological development of a child growing up in an environment where one parent continuously insults, demeans or humiliates the other may be adversely affected. In order to ensure that the child is raised in a healthier environment, the court may leave custody with the other parent.
Is Custody Lost in Every Case?
Degrading conduct does not automatically result in the loss of custody rights; the court weighs this fact within the framework of the principle of the best interests of the child.
The likelihood of custody being left with the other parent increases where the conduct has also been directed at the child, where the child has been adversely affected by it directly or indirectly, where the parent concerned applies psychological pressure or ill-treatment to the child, and where what has occurred disrupts domestic peace and hinders the child’s development.
By contrast, if the conduct was directed only at the spouse and has caused no harm to the child, the court may still leave custody with that same parent. It is also possible to draw on the reports of educational psychologists or social workers in reaching a decision. Since the attitude of a parent who continuously insults the spouse and humiliates that spouse in front of the child may damage the child’s psychological development, the question of the court not granting custody to that person arises.
Maintenance Claims
Maintenance is a payment ordered by the court so that a spouse who falls into economic difficulty after the divorce can support himself or herself. In actions founded on degrading conduct, this matter is decided by assessing the parties’ degree of fault together with their economic needs.
A spouse who engages in the conduct in question is regarded as seriously at fault in the divorce. Since a seriously at-fault spouse has no right to claim poverty alimony, the court dismisses a claim to that effect.
The position of the aggrieved spouse is different; where the conditions are met, poverty alimony may be awarded in that spouse’s favour, or child support may be awarded in respect of the children.
Courts with Subject-Matter and Territorial Jurisdiction
As regards subject-matter jurisdiction, these actions are heard before the Family Court. If there is no family court in the place where the action is to be brought, the dispute is decided by the Civil Court of First Instance sitting as a family court.
Territorial jurisdiction is determined in accordance with Article 168 of the Turkish Civil Code No. 4721. The action may be brought before the family court of the place of residence of either spouse, or equally before the family court of the place where the spouses last lived together for longer than six months before the action was brought.
Independent Legal Assessment
The most contested aspect of this ground of action in practice is how the criterion of “gravely” is to be applied to the specific case. Not every tension or every harsh word between spouses crosses this threshold; courts assess not an isolated outburst but the nature of the conduct, the frequency of its repetition and the setting in which it took place, taken together. For this reason the facts must be set out in the statement of claim in concrete terms, with dates and details of the setting, rather than through abstract characterisations.
The second critical point is the management of the periods. Because the six-month limit running from becoming aware and the five-year limit running from the date of the event are considered by the court of its own motion, even a file that is strong on the merits may come to nothing on procedural grounds. In a specific dispute, we recommend that the following matters be addressed as a priority:
- Establishing the date of each event to be relied upon and calculating the two periods separately
- Verifying, before submission to the file, whether the evidence has been obtained lawfully
- Reviewing retrospectively any conduct capable of being interpreted as forgiveness
- Constructing correspondence and witness evidence together so as to support the existence of intent
- Advancing the claim, where necessary, in the alternative on the ground of irretrievable breakdown of the marital union
- Founding the custody claim on the effects of the conduct as they bear upon the child
Independent Legal provides services in divorce actions and the related disputes over damages, custody and maintenance, planning the process from beginning to end and conducting the litigation.