The Turkish Civil Code No. 4721 does not treat alcohol dependency as a ground for divorce in its own right. When the damage that dependency causes within the marital relationship is taken into account, however, the situation may be regarded as a ground for divorce within the framework of the "irretrievable breakdown of the marital union" (Turkish Civil Code No. 4721, Art. 166). Violence, degrading conduct, indifference towards family members and failure to discharge obligations, where these arise alongside the dependency, are among the facts the courts may assess as grounds for divorce.
In this briefing note we examine the effects of dependency on the marital union, the criteria under which it is treated in law as a ground for divorce, the evidence that is of use at the stage of proof, and the approach the judicial authorities adopt in files of this kind.
Divorce Action Based on Alcohol Dependency
Alcohol dependency is foremost among the factors capable of shaking the marital union to its foundations. According to the settled practice of the Court of Cassation, dependency may be advanced as the basis of a divorce claim. The point that must not be overlooked here is this: what is decisive is not the consumption of alcohol itself, but the fact that consumption has turned into dependency and thereby rendered common life intolerable.
Article 166 of the Turkish Civil Code No. 4721 provides that an action may be brought where the marital union has broken down irretrievably. Neglect by the dependent spouse of their duties within the family, the display of aggressive attitudes, indifference towards family members or the causing of financial hardship are assessed within the scope of this provision and may be accepted as grounds for divorce. The courts do not, however, base their decisions on the bare allegation that "my spouse drinks"; they examine as a whole the concrete effects the dependency has had on the marriage.
The burden falling on the claimant spouse in actions of this kind is to establish that the situation has rendered the marriage unsustainable. Witness statements, hospital and medical reports, records drawn up by law enforcement or psychological assessment documents may be submitted to the file in order to show how the dependency has been reflected in the marital relationship.
Where these conditions are satisfied, the judge may grant a divorce on the ground that the marital union has broken down irretrievably. For the general framework of the subject, our study entitled Divorce Action on the Ground of Severe Incompatibility (Irretrievable Breakdown of the Marital Union) may also be consulted.
Legal Basis
Under Turkish Civil Code No. 4721, Art. 166, a divorce action may be brought where the marital union has become intolerable for one of the spouses. Where alcohol dependency makes the continuation of the union impossible, it is assessed within the scope of this provision.
The criterion that stands out in the case law of the Court of Cassation is the extent to which the dependency has damaged the marital relationship. Where uninterrupted alcohol consumption is combined with domestic violence, financial straits, indifference and irresponsibility, the likelihood that the court will decide in favour of divorce is strengthened.
The dependent spouse’s unwillingness to undergo treatment, or the situation becoming unsuited to the continuation of family life, makes it possible for the legal basis to be established on firmer ground.
For this reason, the claimant spouse is expected to establish with concrete evidence that the other party’s conduct is not merely an ordinary habit and that it has rendered the marriage unsustainable.
Attribution of Fault
In divorce proceedings, the determination of fault directly affects all of the headings of damages, alimony and custody. A spouse who renders common life unsustainable by reason of alcohol dependency is, in practice, most often accepted as being at greater fault or wholly at fault.
Resort by the dependent spouse to violence within the family, the causing of financial hardship and the failure to discharge their obligations produce an adverse result in the assessment of fault. The spouse found to be at fault may be required to pay pecuniary and non-pecuniary damages to the other party, and liability for alimony may likewise arise. The judge decides whether or not to award alimony by assessing together the parties’ income position and the apportionment of fault.
Dependency is also a criterion of weight as regards custody. If it is established that the dependent spouse is not in a position to undertake the care and supervision of the children, custody may be left to the other party. The courts, taking the best interests of the child as their basis, examine the parent’s capacity to discharge their responsibilities. For this reason, in divorce files heard on the ground of alcohol dependency, custody is as a rule entrusted to the spouse who is not dependent.
Conditions Required for the Action to Succeed
Alcohol dependency is a serious factor that damages the atmosphere of trust, respect and peace between the spouses. Within the framework of Turkish Civil Code No. 4721, Art. 166, an action may be brought where dependency has shaken the marital union to its foundations. A decree of divorce is nevertheless conditional upon the fulfilment of certain requirements. Foremost among these are that the dependency has acquired continuity and that it has produced serious adverse consequences for the marriage.
Alcohol Consumption Acquiring Continuity and Becoming a Habit
For dependency to be treated as a ground for divorce, occasional consumption is not sufficient; the alcohol must reach the level of dependency and disrupt the person’s ordinary way of life. In the practice of the Court of Cassation, a spouse’s drinking from time to time is not, on its own, regarded as a ground for divorce. Where, by contrast, the consumption of alcohol;
- has acquired continuity,
- prevents the person from carrying on daily life and discharging their obligations,
- is combined with an attitude of unwillingness to undergo treatment,
- threatens peace and safety within the home,
it is accepted as a strong indication that the marital union has broken down irretrievably. The fact that the situation has ceased to be temporary and has become chronic is therefore a decisive element in the proceedings.
Irretrievable Breakdown of the Marital Union
For a divorce decree to be granted, the Code requires that the marital union has become intolerable for at least one of the parties. Alcohol dependency may shake the union to its foundations and make it impossible for the spouses to live together. In making this assessment, the courts take the following facts into account:
- Whether violence, insult or indifference has occurred within the home because of the dependency,
- Whether the family has encountered financial difficulties on account of alcohol,
- Whether the dependent spouse has discharged their obligations towards the family members,
- Whether a loss of trust arising from alcohol has come about in the marital relationship.
In examining whether the union has become intolerable for one of the parties, evidence such as witness statements, hospital records, any history of alcohol treatment and records of domestic violence may be assessed. Evidence of this nature makes the harm the dependency has done to the marriage visible and prepares the ground for a divorce decree.
The Repercussions of Dependency on the Marriage
The effect of alcohol dependency is not confined to the dependent person alone; it adversely affects the life of everyone in the household. The consequences most frequently encountered in practice are as follows:
- Aggression and violence: Dependency may weaken a person’s self-control, which in turn may multiply incidents of physical or psychological violence directed at the spouse and the children.
- Financial hardship: The dependent spouse losing their job, neglecting their financial obligations or spending the family’s resources on alcohol destabilises the household budget.
- Indifference and irresponsibility: The dependent spouse may neglect their duties within the family and may adopt an attitude of indifference towards their children and their spouse.
- Disruption of domestic peace: Continual arguments, an atmosphere of mistrust and psychological pressure may turn the home into a place of unrest.
When the consequences listed above are assessed together, it becomes legally possible to accept that the marital union has broken down irretrievably by reason of alcohol dependency and to grant a divorce.
Proving the Dependency
In divorce proceedings, alcohol dependency must be proved by concrete evidence capable of being submitted to the court. According to the practice of the Court of Cassation, merely alleging the dependency produces no result; documents showing that the situation has shaken the marital union to its foundations are also expected to be brought into the file.
The evidence that may be relied upon for the purposes of proof may be listed as follows:
- Witness statements: Family members, neighbours, work colleagues or persons in the immediate circle may recount, through their testimony, how the dependency has been reflected in the marriage.
- Medical records: Hospital documents showing alcohol-related conditions, psychological assessment reports and, where dependency treatment has been undergone, the documentation relating to that process.
- Law enforcement records: Records concerning domestic violence, disorderly conduct arising from the dependency, or situations in which the security forces intervened, may be submitted to the file.
- Documents relating to occupational and social problems: Disciplinary sanctions imposed at the workplace, papers establishing that employment was lost because of alcohol, and records evidencing financial hardship.
- Correspondence and digital evidence: Messages, e-mails or social media posts reflecting the problems the dependency has created within the family may also carry evidential value.
This evidence, once brought into the file, establishes both the continuity of the dependency and its adverse effects on the marriage, and thereby eases the path towards a divorce decree.
The Effect of Alcohol Consumption on Custody
The fundamental principle taken as the basis on the question of custody in divorce actions is the best interests of the child. In determining custody, the court examines the extent to which the parents are able to discharge their obligations towards the child. Alcohol dependency is a criterion of considerable weight in this assessment and may adversely affect the dependent parent’s capacity to undertake the care of the child.
How Does Dependency Affect the Custody Decision?
The matters the court takes into account in determining custody are as follows:
- The level of consumption: It is investigated whether the consumption of alcohol has remained within the bounds of social drinking or has reached the dimension of dependency. Continual and excessive consumption may produce an adverse result as regards a custody claim.
- The safety of the child: It is examined whether the parent, while under the influence of alcohol, has endangered the physical and mental safety of the child.
- Capacity for care and supervision: Any inadequacy, caused by the dependency, in meeting the child’s basic needs such as nutrition, education and health may have a bearing on the decision.
- Expert and court-appointed expert assessments: Where required, the effect of the dependency on custody is measured by means of expert reports, psychological examinations and social services reports.
Can a Dependent Parent’s Custody Claim Be Refused?
Where it is established that the dependent parent would harm the child’s physical, mental or educational development, the court may leave custody to the other spouse. It is also possible for a limited right of personal relationship (supervised contact, or contact limited to a specified period) to be granted to the party who does not obtain custody. In exceptional cases where there is a possibility of harm to the child by reason of the dependency, the court also has the power to remove that parent’s right of contact altogether.
What Happens If the Dependency Continues After Custody Has Been Granted?
If the dependency of the parent who has been granted custody continues and this adversely affects the child’s health, education or general welfare, the other parent may apply to the court seeking a variation of custody. If the judge considers it necessary for the safety of the child, they may reassess custody and make a fresh arrangement.
In conclusion, alcohol dependency is one of the decisive factors in shaping the custody decision, and the assessment is conducted along the axis of the child’s safety, health and development.
Court with Subject-Matter and Territorial Jurisdiction
In divorce actions brought on the ground of alcohol dependency, subject-matter and territorial jurisdiction are determined within the framework of Article 168 of the Turkish Civil Code No. 4721.
As regards subject-matter jurisdiction, the judicial body competent to hear these actions is the family courts. Where no family court has been established in the place in which the action is to be brought, the civil court of first instance hears the file in its capacity as a family court.
As regards territorial jurisdiction, under Turkish Civil Code No. 4721, Art. 168, the action may be brought in one of two places:
- The family court at the domicile of either of the spouses,
- The family court at the place where the spouses last resided together for at least six months.
The spouse who is to bring the action may choose whichever of these two options they prefer.
Independent Legal’s Assessment
In divorce files based on alcohol dependency, the element that determines the course of the dispute is not so much the existence of the dependency as the concrete consequences it has had for the marital union. The point at which such actions tend to be weak in practice is the stage of proof: however strong the allegation, where it is not supported by evidence such as witnesses, medical records and law enforcement reports, the claim may go unanswered. Since the manner in which fault is apportioned affects all of the headings of damages, alimony and custody, it is important that the planning of evidence be carried out before the statement of claim is drafted.
The headings to be given priority at the outset of the process are as follows:
- Compiling in chronological form the documents showing that the dependency is continuous
- Where there is an allegation of domestic violence, raising protective measures before the action is brought
- Drawing up the list of witnesses on the basis of persons who directly observed the events
- Providing separate reasoning, in the custody claim, for the concrete facts relating to the best interests of the child
- Quantifying the claims for damages and alimony in a manner consistent with the apportionment of fault
- Making the choice of the court with territorial jurisdiction with regard to ease of access to the evidence and the witnesses
Independent Legal provides advisory services and conducts litigation in divorce actions based on the irretrievable breakdown of the marital union, in relation to the determination of fault and the pursuit of custody, alimony and damages claims.