The ground for divorce commonly known as irreconcilable differences arises where the disagreements between the spouses have shaken the marriage to its foundations and common life can no longer be sustained. Article 166 of the Turkish Civil Code No. 4721 governs this situation under the heading "irretrievable breakdown of the marriage union" and accepts it as a general ground for divorce.
The essential allegation that must be brought before the court is that the marriage has been eroded to a degree that makes it unsustainable and has become intolerable for at least one of the spouses. Whether or not the respondent spouse is at fault is not decisive at this point; what is required is a finding by the court that the marriage union has been damaged beyond repair.
The party bringing the action bears the burden of proving the ground for divorce relied upon. The court reaches its conclusion by assessing together the witness statements, messages and correspondence, audio recordings, images and the other evidence submitted to the file. In this briefing note we address the statutory elements of the action, the procedure and the legal consequences of divorce, from a practical standpoint.
When Is the Marriage Union Deemed to Have Broken Down Irretrievably?
This concept heads the general grounds for divorce governed by Article 166 of the Turkish Civil Code No. 4721:
Turkish Civil Code No. 4721, Art. 166(1)
"Where the marriage union has broken down to such an extent that the spouses cannot be expected to continue their common life, either spouse may bring an action for divorce."
Where the discord between the spouses has rendered common life intolerable and the marriage has ceased to be sustainable, either party may apply to the court seeking divorce. What is required here is the existence of an incompatibility, disagreement or conflict so deep that the continuation of the marriage cannot be expected of the spouses. In reaching its decision the court weighs together the parties’ statements, the evidence submitted to the file and the extent to which the union has broken down.
Statutory Elements of the Action
Whether an action for divorce based on the irretrievable breakdown of the marriage union can be upheld depends on the fulfilment of the following conditions required by statute:
The Union Must Have Broken Down Irretrievably
The legislature has not listed one by one the cases in which the union is to be regarded as having broken down irretrievably; it has left that assessment to the discretion of the judge. The judge examines the circumstances of the case before them and decides whether the continuation of the marriage is possible.
The Intolerability Requirement
It is sufficient that common life has become intolerable for the claimant spouse alone; it is not required that the same situation exist for both spouses at once. In other words, if one of the spouses regards the continuation of the marriage as no longer possible and is able to establish that picture by evidence, the court may grant a divorce.
The Claimant Must Not Be More Gravely at Fault Than the Respondent
This ground for divorce is not based on fault; a spouse who is at fault therefore also has the capacity to bring the action. What is decisive here is that the claimant should not be more gravely at fault than the respondent.
Where the respondent spouse is less at fault than the claimant, they may object to the request for divorce. Faced with such an objection, the court decides by assessing whether the marriage union has genuinely become unsustainable.
That said, where the objection amounts to an abuse of right, or where no interest worthy of protection remains for the respondent spouse and the children, the court may grant a divorce notwithstanding the objection. This prevents a marriage from being needlessly maintained solely on the ground that the respondent is less at fault.
Conduct Leading to Irretrievable Breakdown
The Turkish Civil Code No. 4721 does not directly regulate the causes that lead to the irretrievable breakdown of the marriage union. The following may be given as examples of the forms of conduct assessed within this scope in practice:
- Conduct involving physical violence: One spouse slapping or beating the other falls within this group.
- Conduct involving emotional violence: A state of constant argument, one spouse keeping their distance from the other within the marriage, failing to devote time to them, deceiving them in financial or emotional matters, insulting them and continually humiliating them are assessed under this heading.
- Conduct involving economic violence: One spouse preventing the other from working, or restricting their financial means, constitutes economic violence.
- Conduct involving social violence: Interference with, and the exertion of pressure regarding, the spouse’s social life, circle of friends or choice of clothing, as well as going through the spouse’s telephone or social media accounts, are examples of such conduct.
- Conduct involving sexual violence: The inability of the spouses to satisfy one another sexually, or the complete cessation of sexual relations, may be counted within this scope.
- Conduct involving visual violence: One spouse making posts demeaning the other on social media accounts or within their circle, and making threats that sexually explicit photographs belonging to the other spouse will be shared, are conduct of this kind.
Choosing between the General Ground for Divorce and the Special Grounds
The facts assessed within the scope of irreconcilable differences include adultery by a spouse, impotence, insult, the sharing of private life with third parties, the beating of a spouse and the neglect of the home and the children. Some of these facts are separately governed in the Turkish Civil Code No. 4721 as special grounds for divorce.
That said, a spouse who wishes to divorce is under no obligation to rely on a special ground for divorce; they may equally bring an action relying on the general ground of the irretrievable breakdown of the marriage union. The fact that an event falls within the scope of a special ground for divorce does not mean that the action must necessarily be founded on that ground. Indeed, persons who do not wish their private life to be debated before the court most often prefer the general ground.
This preference has a practical justification: where special grounds for divorce are relied upon, those grounds must also be separately proved, and the process may become more damaging for the parties and for any children. For that reason, actions based on irreconcilable differences are more common where evidence is difficult to adduce or where the disclosure of private life is not desired.
Procedure
Who May Be Claimant and Respondent?
Either spouse may bring an action for divorce on the ground of irreconcilable differences. The right of action is not conditional upon fault; even a spouse who is at fault may bring an action asserting that the marriage union has broken down irretrievably.
By contrast, where the more gravely faulty spouse brings the action, a right of objection arises for the other spouse. In assessing such an objection the court has regard to the following matters:
- Whether the marriage has broken down to an extent that makes it unsustainable;
- Whether the respondent spouse’s objection amounts to an abuse of right;
- Whether any interest worthy of protection remains for the respondent and for any children.
If the court forms the view that the marriage union is no longer capable of being preserved, it may grant a divorce notwithstanding the respondent’s objection.
The Applicable Procedural Rules
Turkish law provides for two different sets of procedural rules, the written procedure and the simplified procedure. An action based on the irretrievable breakdown of the marriage union is, pursuant to Article 166 of the Turkish Civil Code No. 4721, in the nature of a contested divorce action. In contested divorce actions the written procedure applies.
Assessment of Evidence and Means of Proof
In these actions it is necessary to prove both the fact that renders the marriage union intolerable and that the marriage has become unsustainable for the spouse bringing the action. The parties may establish their allegations by the following evidence:
- Witness statements (family members, friends and similar persons who have witnessed what has passed between the spouses)
- Police records, medical reports of assault and reports of psychological support
- Messages, audio recordings, photographs and videos
The court examines the parties’ allegations through the evidence thus submitted to the file and reaches a conclusion within the framework of its discretionary power.
Court with Subject-Matter and Territorial Jurisdiction
Court with subject-matter jurisdiction: Pursuant to Article 4 of Act No. 4787 on the Establishment, Duties and Procedure of Family Courts, the Family Courts have subject-matter jurisdiction over actions arising from family law. In places where no family court has been established, such actions are heard by the civil court of first instance sitting as a family court.
Court with territorial jurisdiction: Pursuant to Article 168 of the Turkish Civil Code No. 4721, the court with territorial jurisdiction is that of the place of residence of one of the spouses or of the place where they last resided together for six months before the action.
Interim Measures Available During the Action
While the proceedings are pending, the court may order interim measures so that the spouses and the children do not suffer harm. These measures may be grouped under the following headings:
- Measures concerning accommodation: When the action is brought, a dispute may arise as to who is to remain in the common home. The judge, on the application of the parties or of their own motion, decides on the use of the common home by assessing the economic and social position of the spouses on a basis of equity.
- Measures concerning maintenance: The court may, having examined the parties’ economic position, award interim maintenance in favour of the spouse in the weaker position. Interim maintenance may also be awarded in favour of the spouse who is at fault.
- Measures for the protection of common property: Throughout the process, the measures necessary for the administration and protection of the spouses’ common assets may be taken.
- Measures concerning the children: The court may, having regard to the child’s age, education and state of health and to the parents’ living conditions, make an order for interim custody as to which parent the child is to stay with during the proceedings. It may also order that personal contact be established so that the bond between the child and the parent is not damaged.
These interim measures remain in force for the duration of the action and may be replaced by the final judgment once the divorce decision becomes final.
Protection Order
Where one spouse is subjected to physical, psychological or economic violence by the other and has, on that ground, brought an action based on the irretrievable breakdown of the marriage union, they may request a protection order under Act No. 6284 on the Protection of the Family and the Prevention of Violence against Women.
With a view to protecting the spouse subjected to violence, the judge may order the following measures:
- Prohibition of contact: The spouse who has committed violence or made threats may be prohibited from reaching the victim spouse by telephone, message, e-mail or other means of communication.
- Removal order: It may be ordered that the spouse who has committed violence be removed from the home and, further, that they keep away from the other spouse’s workplace or from places they frequent.
- Confidentiality or police protection: Where considered necessary, it may be requested that the victim spouse’s identity and address details be kept confidential or that police protection be provided to them.
These measures are directed at securing the safety of the victim spouse for the duration of the action. In urgent cases protection measures may also be taken by the law enforcement authorities without awaiting a court decision and are maintained upon the judge’s approval. Criminal sanctions arise in respect of spouses who act in breach of protection measures.
The Legal Consequences of Divorce
A divorce based on the irretrievable breakdown of the marriage union gives rise to a series of legal consequences both for the spouses and for the children. Those consequences are set out in detail under the following headings.
The Surname of the Divorced Woman
Pursuant to Article 173 of the Turkish Civil Code No. 4721, a divorced woman retains the personal status acquired through the marriage but as a rule resumes the surname she bore before the marriage. That change occurs automatically once the divorce decision becomes final, and no separate application by the woman is required; the family court notifies the decision to the civil registry office and thereby secures the reversion of the surname to its former form.
In certain special cases it is possible for the woman to continue bearing her former husband’s surname. For this, the woman must establish two matters before the court:
- That using the former husband’s surname affords her a significant interest;
- That such use will cause no harm of any kind to the former husband.
If the court concludes that these conditions are met, it may permit the woman to continue using her former husband’s surname.
Maintenance
In an action based on the irretrievable breakdown of the marriage union the court may award different types of maintenance both while the proceedings are pending and after the divorce has become final.
Interim maintenance (while the action is pending): This is maintenance awarded on a provisional basis for the spouse or children who may fall into economic hardship while the proceedings continue. Once the divorce becomes final, interim maintenance awarded in favour of a spouse comes to an end; however, where the economic insufficiency persists, it may be converted into poverty alimony. Interim maintenance awarded for the children may continue after the divorce as child support.
Poverty alimony (after the divorce): Pursuant to Article 175 of the Turkish Civil Code No. 4721, this is maintenance paid by one spouse, permanently or for a specified period, to the spouse who will fall into economic hardship because of the divorce. For it to be awarded, the marriage must have come to an end and the financial position of the spouse liable for maintenance must permit it. The right to claim belongs to the spouse whose financial position will deteriorate. It should be emphasised that the party who will fall into poverty must not have been found more at fault than the other. Poverty alimony is of indefinite duration; it comes to an end, however, if the spouse receiving it remarries, lives as though married, if one of the parties dies, or if the spouse receiving it becomes able to provide for themselves.
Child support (for the care of the children): Where a divorce is granted, the care obligation of the spouse who does not obtain custody towards the joint children continues, and child support may therefore be awarded in order to meet the child’s care, education and health expenses. This maintenance continues until the child attains majority; its amount is determined by assessing together the economic position of the parents and the needs of the child.
Pecuniary and Non-Pecuniary Damages
A spouse who suffers financial loss by reason of the divorce, or whose future economic position is placed at risk, may claim pecuniary damages, provided that they are not at fault or are less at fault and that they suffer harm from the divorce. The financial means of the spouse to be held liable in damages must also permit it. In determining the amount of damages the court has regard to the parties’ level of income, their living standards and the degree of the harm suffered.
Non-pecuniary damages, for their part, may be claimed by a spouse whose personality rights have been gravely damaged by the other spouse’s faulty conduct during the divorce process or throughout the marriage. The court determines an amount consistent with equity, having regard to the gravity of the mental suffering and distress experienced by the spouse making the claim.
Determining Custody and the Arrangements for Contact with the Child
Since the spouses will live apart after the divorce, the court determines which parent the joint child is to stay with, how the child’s care is to be provided and how the parent who does not obtain custody is to have contact with the child.
- Determination of custody: The court takes the best interests of the child as its basis; it assesses the parents’ living conditions, their economic position and the attention they show the child, and orders to whom custody is to be given.
- Arrangements for personal contact: So that the bond between the child and the parent who does not obtain custody is not weakened, the court grants a right of contact on specified days and at specified times.
- Variation of custody: Where the parent to whom custody has been given fails to take sufficient care of the child, cares for the child badly or is violent towards them, the other parent may apply to the court and request the variation of custody.
The court determines the duration and the conditions of contact for the parent who does not obtain custody, having regard to the child’s age, education and emotional needs.
Division of Property in the Divorce Action
When the family court grants a divorce, the same judgment contains no ruling on the division of property between the spouses. For the division to take place, a separate action for the division of property must be brought once the divorce decision has become final.
In that action, how the assets are to be divided is determined on the basis of the matrimonial property regime applicable between the spouses. An action for the division of property cannot be brought together with the divorce action; it may be raised only once the divorce decision has become final.
Independent Legal Assessment
In actions based on the irretrievable breakdown of the marriage union the real contest is most often waged not over the divorce itself but over the allocation of fault. That is because the ruling the court will make on such heads as damages, poverty alimony and custody depends directly on the assessment of fault. For that reason the statement of claim must set out not only the request for divorce but also the facts establishing fault, in an orderly manner and in chronological sequence.
The rules on proof, for their part, call for particular care. Submitting to the file recordings obtained by unlawful means may weaken the claimant’s position rather than strengthen it. In a concrete dispute the following heads should be addressed as a matter of priority:
- Making the choice between the general ground for divorce and a special ground for divorce with regard to the possibilities of proof and the balance of privacy
- Tying the facts establishing fault to specific dates and events in the statement of claim
- Taking care that the evidence has been obtained by lawful means and that the list of witnesses is submitted in full from the outset
- Raising the requests for interim maintenance, interim custody and use of the home together when the action is commenced
- Where violence is alleged, requesting without delay the protection measures under Act No. 6284
- Making the preparations for the liquidation of the matrimonial property regime before the divorce becomes final
Independent Legal provides advisory services and conducts litigation throughout contested divorce proceedings, from the preparation of the action to the appellate stage and the liquidation of the matrimonial property regime after divorce.