Desertion is the departure of one of the spouses from the common residence of their own volition and in a manner intended to be permanent, while the union of marriage subsists.
Marriage is not merely an emotional bond but a legal relationship imposing reciprocal rights and obligations on the parties. First among those obligations stands the duty of the spouses to live together. From time to time one of the spouses may leave the common residence in a manner that damages the foundation of the union of marriage. For the spouse left behind, that situation is a fact giving rise to legal consequences beyond an emotional rupture.
Article 185 of the Turkish Civil Code No. 4721 expressly establishes that the spouses are obliged to live together and to assist one another. For that reason the conduct of a spouse who deserts the common residence voluntarily and permanently is regarded in Turkish law as a specific and absolute ground for divorce. Even so, not every departure may be made the subject of an action directly. It is required that the deserting spouse be at fault, that the separation has lasted at least six months, and that a legally valid notice to return has been served. Unless these elements come together, an action for divorce founded on the ground of desertion cannot be brought.
The Concept of Desertion
Desertion denotes the departure of one of the spouses from the common residence, of that spouse’s own volition and in a manner showing continuity, while the marriage subsists. Within the framework of the union of marriage, the spouses are obliged to live together. A breach of that obligation without a justified ground may lay the basis for a divorce claim founded on the ground of desertion.
Turkish Civil Code No. 4721, Art. 164 – Desertion
"Where one of the spouses deserts the other with the intention of not performing the obligations arising from the union of marriage, or does not return to the common residence without a justified ground, and the separation has lasted at least six months and that situation continues, and the notice served by the judge or the notary upon request has remained without result, the deserted spouse may bring an action for divorce. A spouse who compels the other to desert the common residence, or who prevents the other from returning to the common residence without a justified ground, is likewise deemed to have deserted."
The remainder of the provision governs the procedure for the notice and the time limits. Upon the request of the spouse entitled to bring the action, the judge or the notary, by a notice served without entering into the merits of the matter, informs the deserting spouse that they must return to the common residence within two months and of the consequences they will face if they do not return. Where necessary, that notice may be served by way of public announcement. Nevertheless, a request for a notice cannot be made before the fourth month of the period prescribed for the divorce action has elapsed; nor can the action be brought until two months have passed since the notice.
Conditions of the Divorce Action Founded on Desertion
For the action to be brought, it is not sufficient on its own that one of the spouses has deserted the common residence. Under Art. 164 of the Turkish Civil Code No. 4721 the following conditions must be met together.
Desertion of the Common Residence
One of the most fundamental requirements of marriage is that the spouses live under the same roof. The statute treats the concept of desertion as the departure of one of the spouses from the common residence and the continuity of that separation.
For the action to be brought, it is required that the deserting spouse has left the residence and has not returned. Even so, not every separation is in law of the nature of desertion. Departure from the common residence is not deemed to be desertion in the following cases:
- Where the separation rests on the common will of the spouses: Temporary separations experienced by mutual agreement for reasons connected with work, health or family are not assessed within this scope.
- Where the departure rests on a justified ground: The conduct of a spouse who leaves the home because of violence, threats or psychological pressure cannot in law be characterised as desertion.
- Where the return is obstructed: Where the spouse who continues to live in the common residence prevents the other from returning home without a justified ground, that spouse is regarded as the deserting spouse even though it was not they who left the home.
Accordingly, one of the basic conditions of the action founded on desertion is that a spouse has left the common residence by their own unilateral will and has not returned without showing a reasonable ground. For detail on the concept of the common residence, the study entitled What Is the Family Residence? How Is an Annotation on the Family Residence Registered? may be consulted.
The Deserting Spouse Being at Fault
Whether the action may be brought depends on the deserting spouse being at fault. Fault arises where the spouse leaves the common residence of their own will and without a justified ground, or does not return. In law, desertion means that the spouse has breached the duty to live together required by the union of marriage.
The departure of the deserting spouse must be voluntary and must show continuity. In some cases, by contrast, the separation stems not from the spouse’s own choice but from external factors or from necessity. In such situations desertion is not assessed as fault.
The Separation Lasting at Least Six Months
The state of desertion must have continued without interruption for at least 6 months. That period is calculated retrospectively by reference to the date on which the spouse left the common residence, and must have expired at the moment the action is brought.
The Commencement and Calculation of the Period
- The period begins to run from the day on which the spouse actually left the common residence.
- Whether the action may be brought depends on the deserting spouse not having returned home for 6 months without a justified ground.
- If the spouse returns within that period with a genuine will to continue the union of marriage and common life continues for a time, the period of desertion begins to run afresh.
- Returns lacking sincerity, by contrast, are deemed an abuse of right; in that case the period is accepted as not having been interrupted.
Non-interruption of the Period and Abuse of Right
In some files the deserting spouse may return home briefly and for appearances only, with the aim of forestalling the bringing of the action. The courts characterise conduct of this kind as an abuse of right. For example:
- If the spouse’s will to return to the common residence is not genuine and sincere, the court regards this as a formality and does not deem the period interrupted.
- The conduct of a spouse who returns home solely in order to interrupt the period but leaves again shortly afterwards does not produce the result of interrupting the desertion; the six-month period continues to run from where it left off.
Where the spouse genuinely returns with the intention of reconciliation and endeavours to continue the union of marriage as it should be, and then leaves for a second time, the period of desertion begins afresh from the date of that second departure.
Service of the Notice to Return Home
The expiry of the period is not sufficient for the action to be brought. It is also mandatory that the deserting spouse be warned and invited to return to the common residence. The notice to return home is in the nature of a procedural requirement; under Art. 164 of the Turkish Civil Code No. 4721, desertion actions brought without a notice having been served are dismissed on procedural grounds.
- The notice must be served through a notary or through the court.
- If the address of the deserting spouse is known, the notice is sent to that address by way of service.
- Where the address is not known, the notice may be served by way of public announcement.
Whether the notice can produce effect depends on certain legal conditions. The criteria required are examined below.
The Statutory Requirements of the Notice
- The notice must be served through a competent authority: A valid notice may be served only through a notary or a court; notifications made by a lawyer or in person produce no legal effect.
- The period allowed must be at least 2 months: Under the case law of the Court of Cassation, notices allowing a period shorter than 60 days are invalid. The spouse to whom the notice is addressed must in fact be afforded the opportunity to return home within that period.
- The text of the notice must be clear and leave no room for doubt: The text must state that the spouse is to return home in order to continue the union of marriage; it must also express clearly that an action for divorce will be brought if there is no return.
- The notice must be served in accordance with the proper procedure: If the spouse has a known address, the notice must be delivered to that address through a notary or the court; if the address is not known, recourse must be had to publication in a newspaper.
The Residence to Which the Spouse Is Invited Being Suitable
For the notice to be regarded as valid, the residence to which the spouse is invited must be of a nature suitable for common life.
- The invitation must be made to a suitable residence in which common life can be sustained.
- A spouse staying with their own family or with third parties must be invited to an independent residence.
- The deserted spouse may make the invitation to an independent residence determined by the court, or chosen by that spouse, within the framework of Art. 188 of the Turkish Civil Code No. 4721.
The Court of Cassation does not accept as valid notices made to residences that are not of an independent character. Accordingly:
- An invitation made to a home shared with the mother and father renders the notice invalid.
- Where the conditions necessary for the spouse to sustain life in that residence have not been provided, the notice may be deemed void.
- Notices of a nature that render the return in fact impossible are not regarded as valid by the courts.
The Notice Being Sincere and Justified
Compliance of the notice with procedure is not sufficient on its own; it must at the same time rest on a sincere intention and be justified. The principal cases in which the notice is deemed invalid are as follows:
- A notice served by a person who has used violence against their spouse is not valid.
- An invitation made to a residence in which an environment threatening the safety of the deserting spouse prevails is not accepted in law.
- Where there is conduct rendering the spouse’s return in fact impossible (changing the lock, threats and the like), the notice remains void.
According to the practice of the Court of Cassation, the deserted spouse is deemed to have forgiven the other party’s previous faults at the moment the notice is served. For that reason, once the notice has been sent, it is not possible to bring an action for divorce relying on the deserting spouse’s faults preceding the notice.
The Notice Remaining Without Result
Where the spouse, despite the notice, does not return to the common residence without showing a justified ground, the deserted spouse may apply to the Family Court and bring an action for divorce. The court examines whether the notice was drawn up in accordance with the proper procedure and whether the deserting spouse has a justified ground. Where it is established that the conditions are met, the court is bound to grant the divorce.
The Burden of Proof
A spouse who brings an action relying on the ground of desertion is obliged to prove that the desertion took place and that the conditions of the action are satisfied. Since this ground is specific and absolute in nature, both the fact of desertion and the conditions required must be established by the evidence submitted to the court.
Evidence That May Be Relied On
The following evidence may be drawn upon in discharging the burden of proof:
- The notice sent through a notary or the court: The existence of a notice served on the deserting spouse in accordance with the proper procedure is the most decisive evidence on the file.
- Witness statements: Persons who confirm that the desertion took place and that the spouse did not return may be heard in court. Where neighbours, family members or mutual friends have witnessed the events, their statements carry evidential value.
- Official records showing that the spouse has not returned to the common residence: A certificate of residence or official declarations showing that the spouse lives at another address may be used in proving that there has been no return. The spouse having settled in another city or country is likewise strong material supporting the desertion.
- Correspondence, messages and emails: Written communication between the parties is capable of showing that the spouse has refused to return or is in a separation showing continuity. Messages in which the spouse expressly states that they will not return may in particular be submitted to the file.
- Security and camera records: Records establishing that the spouse has not entered or left the common residence for a long time may constitute a strong basis in terms of proof.
The Weight of Witness Statements
In these actions witness statements are an important source of evidence for the court.
- The witnesses must have witnessed the events directly.
- They must be able to confirm that the spouse left the common residence, has not returned for a long time, or did not come home despite the notice.
- Third parties such as neighbours, relatives, mutual friends or the building manager may give statements supporting the desertion.
By assessing the witnesses’ statements, the court establishes whether the desertion actually occurred and whether the notice remained without result.
The Courts with Subject-Matter and Territorial Jurisdiction
Subject-matter jurisdiction: The forum with subject-matter jurisdiction in divorce actions founded on the ground of desertion is the Family Court. If there is no family court in the place where the action is to be brought, the Civil Court of First Instance hears the file in the capacity of a family court.
Territorial jurisdiction: Under Article 168 of the Turkish Civil Code No. 4721, the action may be brought before the following courts:
- The Family Court of the place where the spouses last resided together for more than 6 months before the action was brought
- The Family Court of the place where one of the spouses has their place of residence
For detailed information on the general conduct of divorce proceedings, the study entitled How Is a Divorce Action Brought? may be consulted.
The Independent Legal Assessment
In actions founded on the ground of desertion, the great majority of files that are lost stem not from the merits of the events but from a defect in the notice procedure. A notice requested before the fourth month has expired, a text allowing a period shorter than sixty days, an invitation made to a residence that is not independent, or an action brought before the two-month waiting period has been completed, results in dismissal without the merits being entered into at all. Setting out the calendar from the outset is therefore a task of higher priority than the content of the pleading.
Secondly, the forgiving effect of the notice is often overlooked. The disappearance, upon service of the notice, of the possibility of relying on previous faults creates a serious problem of strategy for a party planning to advance the grounds of desertion and of the irretrievable breakdown of the union of marriage together. Which ground is to be relied on must be decided before the notice stage.
The headings that should be brought to the fore in a concrete dispute are as follows:
- Establishing the commencement date of the separation and the six-month period on a documentary basis
- Taking care that the request for the notice is made after the fourth month, and the action brought two months after the notice
- Establishing in advance that the residence to which the spouse is invited satisfies the criteria of independence and suitability
- Ensuring that the text of the notice expressly contains both the call to return and the warning of an action
- Where returns for appearances only have occurred in the meantime, gathering evidence to support their insincerity
- Selecting the grounds of the action correctly from the outset, in the face of the forgiving effect of the notice
Independent Legal provides advisory services and conducts litigation at every stage in family law disputes, from the structuring of the notice process to the conclusion of the proceedings.