The adoption of a way of life that is irreconcilable with society’s settled understanding of honour, decency and morality, where that way of life ceases to be a passing deviation and becomes settled, is characterised in our law as leading a dishonourable life. Article 163 of the Turkish Civil Code No. 4721 treats one spouse turning to such a way of life as a just ground of divorce for the other spouse.
The situations assessed under this heading in practice are varied: running a brothel, becoming addicted to gambling, or forming intimacies with third parties that fall short of adultery but cross the boundary of marital privacy are only a few of them. The mere fact that the conduct in question is continuous is not, however, enough to bring the provision into play. The legislator has required a second threshold as well, stipulating that maintaining the shared life must have reached the point where it can no longer be expected of the other spouse. Put differently, the way of life must have made it impossible to continue the marriage within reasonable bounds.
Where both conditions are satisfied together, the aggrieved spouse may apply to the family court without facing any time limit. In this briefing note we examine, from a practical standpoint, the legal framework of the concept, the elements required for the action, the rules of proof, the aspects of damages and alimony, the effect on custody, and the court before which the proceedings are to be conducted.
The Legal Framework of the Concept
Leading a dishonourable life may be defined as a person entering into a way of life that runs counter to the moral and ethical standards prevailing in society and making that way of life settled. At the centre of the concept lies the existence of conduct that conflicts with the understanding of honour and decency.
For this circumstance to serve as the basis of a divorce, the occurrence of a single act is not regarded as sufficient. Two qualities are required: the conduct must have acquired a continuity such that it amounts to a way of life, and it must render the marriage intolerable for the other spouse.
The boundaries of the concept are not drawn in precise lines in the legislation. The judge exercises discretion by assessing together the particular circumstances of the case, the value judgments prevailing in society at the time and the settled case law. The fact that the understanding of honour may change over time and may differ from one society to another also makes this flexibility necessary. Whether a given way of life is to be regarded as dishonourable is therefore addressed separately in each dispute.
Conduct Treated as Falling Within This Scope in Practice
Which acts fall within the scope of the provision is determined according to the features of the particular case in the light of the Turkish Civil Code No. 4721 and the decisions of the Court of Cassation. Nevertheless, certain patterns of conduct are for the most part assessed under this heading in judicial practice:
- A passion for gambling, or an addiction to alcohol amounting to habitual drunkenness
- Using narcotic substances or deriving income from trading in them
- Engaging in prostitution, that is to say working as a prostitute
- Running a house of assignation or taking part in any activity that procures prostitution
- Conducting an extramarital relationship with a third person or persons over a defined period of time
- Taking part in a same-sex relationship
- Engaging in human trafficking
- Making a habit of conduct amounting to indecent exposure
- Begging despite being under no financial hardship
This enumeration is not an absolute and objective list of criteria. Whether a way of life is to be accepted as dishonourable ultimately depends on the judge’s assessment within the framework of the circumstances of the case file.
Conditions Required for Bringing the Action
Article 163 of the Turkish Civil Code No. 4721 affords the aggrieved spouse the opportunity to bring an action without any time limit where one of the spouses leads a dishonourable life and, for that reason, living together with that spouse can no longer be expected of the other:
Turkish Civil Code No. 4721, Art. 163
“If one of the spouses commits a degrading offence or leads a dishonourable life, and for these reasons living together with that spouse cannot be expected of the other spouse, the latter may bring an action for divorce at any time.”
For the provision to be applied, the following elements must be present together.
The Way of Life Must Display Continuity
Because the expression chosen in the text of the Act is “leading a life”, a single isolated act is not regarded as sufficient as a ground of divorce. What is required is that the conduct has become part of the person’s ordering of life.
Sitting down at a gambling table on one occasion, or committing a single act contrary to morality, does not provide a basis for this Article. For the action to succeed, the conduct in question must have been repeated and turned into a way of life.
The Way of Life Must Continue While the Marriage Subsists
The bringing of an action under the Article depends on this way of life continuing within the marital union as well. Two points must be underlined here. First, the acts must be spread over a defined period of time. Second, even where the way of life began before the marriage, it may constitute a ground of divorce if it continues throughout the marriage.
By contrast, a period lived before the marriage and brought to an end with the marriage cannot be relied on as a basis for this provision. If the spouse has abandoned their pre-marital way of life and has not maintained that conduct within the union, divorce cannot be sought on the ground of leading a dishonourable life.
The Element of Fault
Acceptance of the claim requires that the spouse leading the dishonourable life be found at fault in that conduct.
No fault can be spoken of in the case of a spouse who has been drawn into a particular way of life against their will, or who has been forced into such a life under threat.
A person who has been driven to use narcotics by force or by threat, or who has been forced into prostitution against their will, is not regarded as at fault in this context; fault therefore cannot be attributed to them in the divorce action by reliance on this Article.
The Common Life Becoming Intolerable
The legislator also separately requires the condition of intolerability in these actions. Being with the spouse who leads a dishonourable life must render life unbearable for the other spouse. If the conduct does not take the maintenance of the marital union to the point of impossibility, the Article cannot be brought into play.
Indeed, a spouse’s use of narcotics does not of itself automatically produce a divorce. A decree of divorce may be granted once it is established that the situation has rendered the shared life unbearable for the other spouse.
Whether intolerability has materialised is likewise left to the judge’s discretion according to the circumstances of the case file.
On the other hand, where a party has endured the spouse’s way of life for a long time and then brings an action on that very ground, this may give rise to debate in terms of the rule of good faith. For example:
- Reliance on this ground by spouses who share the same way of life against one another may not be regarded as worthy of legal protection.
- In a marriage in which both parties are addicted to narcotics, one spouse seeking divorce by invoking the other’s addiction is irreconcilable with the rules of good faith and honest dealing.
The Rules of Proof
In divorce actions founded on this ground, the burden of proving the allegation lies with the claimant spouse. For a claim based on Turkish Civil Code Art. 163 to succeed, the claimant must establish the facts asserted by means of legally admissible evidence. If the allegation cannot be proved, the action is dismissed.
The Burden of Proof
The spouse who alleges that a dishonourable life is being led must show by concrete evidence that this way of life has continuity, that it continued throughout the marriage and that it has rendered the marital union intolerable. The burden of proof rests on the claimant party who advances the allegation. The principal items of evidence resorted to in practice are as follows:
- Witness statements given before the court by persons with knowledge of the events
- Photographs and video recordings, together with transcripts of messages and correspondence between the parties
- Posts on social media accounts and similar digital data
- Records drawn up by the police and findings made by administrative authorities
- Criminal proceedings brought against the spouse and convictions handed down
The claimant spouse is expected to support the allegation by submitting one or more of these items of evidence to the case file.
The Judge’s Discretion in the Face of the Parties’ Statements
The judge assesses the evidence submitted freely and gives judgment in accordance with their conscientious conviction. Even an admission by the spouse alleged to be leading a dishonourable life does not directly oblige the court to grant a divorce.
What the court must do is examine whether the conditions in the Article have genuinely materialised and reach a conscientious conviction founded on the evidence. In order to prevent the parties from abusing this provision in order to arrive at a divorce, the decision is founded not on statements alone but on an objective weighing of all the evidence in the case file.
Pecuniary and Non-Pecuniary Damages
In divorce actions founded on this ground, it is open to the aggrieved spouse to claim pecuniary and non-pecuniary damages. Under Article 174 of the Turkish Civil Code No. 4721, damages may be awarded having regard to the economic losses and the non-pecuniary harm suffered by the aggrieved spouse.
Pecuniary Damages
The function of pecuniary damages is to prevent the aggrieved spouse from suffering economic loss as a result of the divorce. If the conduct of the spouse leading a dishonourable life has caused a financial loss to the other spouse, the court may award damages having regard to equity.
By way of example, if the aggrieved spouse has lost their employment because of this way of life, has been adversely affected psychologically, or has lost standing among those around them, the amount of pecuniary damages awarded may be higher.
Non-Pecuniary Damages
Non-pecuniary damages, for their part, seek to make good the psychological devastation, the loss of reputation and the attack on the personal rights suffered by the aggrieved spouse. Under Article 174(2) of the Turkish Civil Code No. 4721, a spouse whose personal rights have been impaired by reason of the leading of a dishonourable life may claim non-pecuniary damages.
This head of claim is directed at making good, at least in part, the psychological harm suffered by the aggrieved spouse; it is not punitive in character as regards the spouse at fault. In determining the amount, the courts have regard together to the gravity of the tort, the social and economic positions of the parties and the degree of harm suffered.
Alimony Claims
Alimony claims are assessed on the basis of the parties’ economic circumstances and the distribution of fault. Since the spouse leading a dishonourable life is as a rule regarded as being at greater fault, an award of alimony in favour of the aggrieved spouse may arise.
Poverty Alimony: Under Article 175 of the Turkish Civil Code No. 4721, the spouse who will fall into economic difficulty because of the divorce may claim poverty alimony, provided that they are without fault or are at less fault than the other. Within that framework:
- The spouse leading a dishonourable life, being in the position of greater fault, has no right to claim poverty alimony.
- In fixing the amount, the court takes into account the parties’ level of income, the economic losses suffered by the aggrieved spouse and the standard of living after the divorce.
The Determination of Custody
In actions of this kind, custody of the child in the divorce proceedings is addressed around the principle of the best interests of the child. Under Article 182 of the Turkish Civil Code No. 4721, the court determines which parent is the more suitable in terms of the child’s physical, psychological and social development.
How a Dishonourable Life Bears on Custody
In deciding the question of custody, the court weighs the following points:
- Whether the way of life in question has any direct or indirect effect on the child
- Whether the child’s safety is placed at risk by that parent’s conduct
- Which parent’s side would be more suitable for the child in terms of physical and psychological development
- The extent to which what has passed between the mother and the father has left its mark on the child
For example, if a parent is addicted to narcotics, engages in prostitution, or lives in an environment that threatens the child’s safety, the court may grant custody to the other parent in order to remove the child from that environment.
Is Custody Lost Automatically?
There is no question of the parent leading a dishonourable life automatically forfeiting the right of custody. The court assesses the situation by the criterion of the best interests of the child.
Circumstances that increase the likelihood of custody being granted to the other parent:
- A finding that the child has suffered physical or psychological harm because of the parent’s way of life
- The harm having been caused to the child directly by that parent
- The parent’s daily ordering of life adversely affecting the environment in which the child is raised
Circumstances that make it possible for custody not to be lost altogether:
- An inability to establish any direct harm to the child arising from the way of life maintained
- A finding during the proceedings that the parent plays a constructive role as regards the child
- A favourable outcome in the report prepared by a pedagogue or social worker
The Courts with Subject-Matter and Territorial Jurisdiction
In these actions, subject-matter and territorial jurisdiction are determined within the framework of Article 168 of the Turkish Civil Code No. 4721.
Subject-matter jurisdiction: The judicial body with subject-matter jurisdiction to conduct the proceedings is the Family Court. If no separate family court has been established in the place where the action is to be brought, the Civil Court of First Instance hears the case in its capacity as a family court.
Territorial jurisdiction: Under Turkish Civil Code Art. 168, the action may be brought in either of the following two places:
- The family court of the place where the spouses last lived together and where that cohabitation lasted at least six months
- The family court of the place where either of the parties has their place of residence (domicile)
The spouse bringing the action is free to choose whichever of these two options they prefer.
The Time Limit for Bringing the Action
Article 163 of the Turkish Civil Code No. 4721 lays down no time limit whatsoever for actions founded on this ground. Two matters should nevertheless not be overlooked:
- Continuing the marriage in such circumstances may be interpreted as the spouse having accepted or forgiven the situation.
- A failure to bring an action for a considerable time after learning of the situation may be assessed as an adverse factor in the eyes of the court.
For that reason it is important, in order to prevent any loss of rights, that a spouse contemplating an action should act within a reasonable period of time. For detailed information on the general conduct of the process, our note entitled How Is a Divorce Action Brought? may also be consulted.
The Independent Legal Assessment
Although leading a dishonourable life appears on paper to be a plain ground resting on a single Article, in practice it is among the most demanding of divorce files. The difficulty stems less from the legal characterisation than from the evidential picture: what the claimant must prove is not a single event but an ordering of life spread over time. Where continuity cannot be established, the file often moves off the ground of Turkish Civil Code Art. 163 and shifts to the general ground of the irretrievable breakdown of the marital union; that shift in turn directly affects the distribution of fault and the outcomes on damages and alimony.
The manner in which digital evidence is gathered has also become increasingly decisive. The entry into the case file of recordings obtained by unlawful means may produce the opposite of the result the claimant expects. It is therefore preferable that the evidential strategy be devised before the action is brought.
The headings that should be given priority in a given dispute are as follows:
- Testing at the outset whether the conduct complained of satisfies the element of continuity
- Identifying dated evidence showing that the way of life continued within the marriage as well
- Founding the condition of intolerability in a way that does not conflict with the claimant’s own conduct
- Checking in advance whether the evidence has been obtained by lawful means
- Calculating how the balance of fault will bear on the claims for damages and poverty alimony
- Framing the custody claim, in files involving children, with the possibility of an expert report in mind
Independent Legal provides advisory and litigation services across the whole of the process in disputes arising from family law, from the preparation of evidence through to the stages following judgment.