The Turkish Civil Code does not count a fondness for games of chance as a self-standing ground for divorce. In the settled case law of the Court of Cassation, by contrast, gambling to an extent that leads to a breach of the duties required by the family union is accepted as a justification for divorce. Where one of the spouses becomes addicted to gambling, or even without reaching the level of addiction frequently plays betting games, horse races and the like, this may be assessed within the scope of the provision on the “irretrievable breakdown of the marital union” (Turkish Civil Code No. 4721 Art. 166) to the extent that it gives rise to severe incompatibility between the parties.
In most cases gambling turns into a habit that upsets the family’s financial balance. Since the resources devoted to the game come out of the household budget, it is even possible to speak of the gambling spouse exercising economic violence against the other spouse and the children. In that form, the addiction makes the continuation of the marital union more onerous in both pecuniary and non-pecuniary terms; where the other conditions are also met, it is accepted as a ground for divorce.
In this briefing note we examine the repercussions of gambling addiction on a marriage, the framework within which it is treated in law as a ground for divorce, and the criteria by which the courts decide disputes of this kind.
The Divorce Action Based on Gambling Addiction
A fondness for gambling is among the serious problems capable of causing an irretrievable breakdown of the marital union. In the settled practice of the Court of Cassation, this situation is regarded as a valid justification that may be relied on in an action for divorce. The request can nevertheless be granted only if two matters are established before the court: that the spouse’s gaming habit has reached the level of an addiction, and that this addiction leads to a breach of the obligations arising from the marriage.
The Legal Basis
The possibility of bringing an action for divorce in the event of an irretrievable breakdown of the marital union is regulated in Article 166 of the Turkish Civil Code No. 4721. Where gambling addiction leads the spouse to neglect the responsibilities he or she has assumed, to become indifferent within the family and to fall into financial hardship, it becomes a fact capable of being assessed under that provision.
Accordingly, for the court to decree a divorce pursuant to Turkish Civil Code No. 4721 Art. 166, it is required that the spouse addicted to gambling has at the same time breached the duties imposed by the marital union. As regards the general framework of the subject, our observations on the action for divorce on the ground of severe incompatibility are also instructive.
The Position of the Gambling Spouse as Regards Fault
The determination of fault in divorce proceedings directly affects all of the headings of damages, alimony and custody. A spouse who fails to perform the duties arising from the marriage because of gambling addiction is in most cases treated by the courts as being seriously at fault or wholly at fault.
Damage to the family budget, the household being driven into financial difficulty and the neglect of the responsibilities assumed are elements that markedly aggravate the degree of fault of the addicted spouse.
The Conditions Required for the Action to Be Allowed
A gambling habit is a factor that erodes the trust, the respect and the peace between spouses. If the marital union has broken down irretrievably because of that habit, an action may be brought under Turkish Civil Code No. 4721 Art. 166. A decree of divorce is nevertheless subject to the fulfilment of certain conditions, foremost among them that the addiction has become continuous and has left serious adverse marks on the marriage.
The Habit Having Become Continuous
For gambling to be regarded as a justification for divorce, it must not be a one-off act; it must have turned into a habit that the person cannot give up. In the practice of the Court of Cassation, a spouse gambling on one occasion is not in itself regarded as a ground for divorce. Where gambling, by contrast:
- Has reached a scale that upsets the family’s financial balance,
- Has turned into an entrenched pattern of conduct repeated at regular intervals,
- Threatens the peace and the sense of security within the home,
- Causes the person to neglect his or her daily routine and the duties assumed,
- Is met by the addicted spouse remaining closed to proposals for treatment,
it is regarded by the court as an important indication that the marital union has broken down irretrievably. It is thereby accepted that the addiction is not temporary in nature and may lead to divorce.
The Irretrievable Breakdown of the Marital Union
For a divorce to be decreed on the basis of gambling or games of chance, it is required that the union has broken down irretrievably because of those habits on the part of one of the spouses. Indeed, a gambling habit is in most cases accompanied by conditions such as alcohol addiction, aggression, violence and irresponsibility. It is clear that such conduct will render the marriage unsustainable for the other spouse. An examination of the settled decisions of the Court of Cassation likewise shows that, for a divorce to be decreed, it is required that the gambling spouse be in breach of the duties imposed by the marital union.
In assessing whether the union has broken down, the courts dwell on the following points:
- Whether the relationship of trust between the spouses has been damaged by the gaming habit,
- Whether financial hardship has appeared in the family because of the resources transferred to the game,
- Whether the addicted spouse has avoided assuming his or her duties towards the household,
- Whether there are instances of insult, violence or indifference accompanying the addiction.
In examining whether the marriage has become intolerable for one of the parties, evidence such as witness statements, records relating to domestic violence and the addicted spouse’s bank account movements may be considered. Evidence of that kind may, by demonstrating the adverse effect of the habit on the marriage, form the basis for a decree of divorce.
The Repercussions of the Addiction on the Marriage
Gambling addiction is a picture that affects not only the addicted person but the household as a whole. Its most frequently encountered repercussions in practice are as follows:
- Economic ruin: The transfer of the family’s resources to the games, the incurring of debt in order to obtain the money needed to play, the failure to meet financial obligations, or the addicted spouse losing his or her employment, may cause the household to fall into difficulty in making ends meet.
- Anger and pressure: A spouse seeking resources for the game may demand money from the other spouse; the anger that arises when that demand is not met, or when the spouse loses at the game, may turn into physical and psychological violence directed at the spouse or the children.
- Disruption of the household order: Continuing arguments, an atmosphere of mistrust and psychological pressure may move the marital relationship onto troubled ground.
- Neglect and indifference: The addicted spouse may neglect his or her duties within the family and may adopt an indifferent attitude towards his or her spouse and children.
When these effects are assessed together, it becomes legally possible to conclude that the marital union has broken down irretrievably by reason of gambling addiction and to decree a divorce.
The Question of Proof and the Evidence That May Be Used
In actions brought on the ground of a spouse’s fondness for gambling, it is of decisive importance to prove that the gaming is continuous, that it has reached the level of an addiction and that it has rendered the marital union intolerable.
The evidence that may be relied on in establishing the addiction includes the following:
- Bank records and correspondence: Receipts relating to payments made to betting sites, together with messages and e-mails showing domestic problems stemming from the addiction, may be submitted to the court.
- Witness statements: Members of the household, neighbours, work colleagues or close acquaintances may convey through their statements the effects of the addiction on the marriage.
- Police records: Records relating to domestic violence, disorder or situations in which the security forces intervened as a result of the addiction may be brought into the file.
- Medical and expert reports: Psychological assessments establishing that the spouse cannot give up the game, together with documents relating to any course of addiction treatment undergone, may be used.
- Documents relating to occupational and social difficulties: Records evidencing the economic difficulties arising from the addiction also carry evidential value.
To the extent that the evidence submitted to the file demonstrates the continuity of the habit and its adverse consequences for the marriage, it will make a decree of divorce easier to obtain.
Assessment as Regards Custody
The fundamental principle taken as a basis in decisions on custody is the best interests of the child. The court reaches its conclusion by examining the extent to which the parents are able to meet their obligations towards the child. Gambling addiction is an important criterion in that assessment and may adversely affect the addicted parent’s capacity to assume the care of the child.
The Criteria Influencing the Custody Decision
The following matters are taken into account in determining to whom custody is to be left:
- Capacity for care and supervision: If an inability arises, by reason of the addiction, to meet the child’s basic needs such as nutrition, education and health, that will be reflected in the decision.
- The intensity of the habit: It is examined whether the gambling is a one-off act or a continuous habit; continuity may weaken the custody claim.
- Expert examinations: Where necessary, the effect of the addiction on custody is established through psychological assessments, social investigation reports and the opinions of court-appointed experts.
- The safety of the child: It is examined whether the addicted parent, in the distress and anger experienced after a loss, places the physical and psychological safety of the child at risk.
Can the Addicted Parent’s Custody Claim Be Dismissed?
If it is apparent that the addicted parent will harm the child’s physical, psychological or educational development, the court may leave custody to the other spouse. It is also possible for the party who does not obtain custody to be granted a right of personal contact that is supervised or limited to specified periods. Where there is a possibility of harm being caused to the child by reason of the addiction, the court may remove the addicted parent’s right of contact with the child altogether.
The Continuation of the Addiction After Custody
If the gambling addiction of the parent who has assumed custody continues and that situation 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 court considers it necessary for the safety of the child, it may reassess custody and make a fresh arrangement.
In conclusion, gambling addiction is a significant factor affecting the custody decision in an action for divorce and is dealt with by keeping the safety, the health and the development of the child to the fore.
The Court with Subject-Matter and Territorial Jurisdiction
In actions for divorce based on gambling addiction, subject-matter and territorial jurisdiction are determined according to Article 168 of the Turkish Civil Code No. 4721.
The court with subject-matter jurisdiction: The task of hearing divorce actions of this kind belongs to 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 dispute in its capacity as a Family Court.
The court with territorial jurisdiction: Pursuant to Turkish Civil Code No. 4721 Art. 168, jurisdiction in actions to be brought on the ground of gambling addiction lies with the following courts:
- The Family Court at the domicile (place of residence) of either of the spouses,
- The Family Court of the place in which the couple last lived together for at least six months.
The spouse bringing the action may raise the request before whichever of these two courts with jurisdiction he or she wishes.
The Independent Legal Assessment
In divorce files based on gambling addiction, what determines the outcome is in most cases not the allegation itself but the structure of the evidence supporting it. In practice a significant proportion of actions fail to produce the expected result because, although the existence of the addiction is established, the link between that habit and a breach of the duties of the marital union cannot be made out. The statement of claim must therefore be constructed in a way that makes visible the causal link between the gaming habit and the concrete harm arising within the marriage.
Nor should it be overlooked that the determination of fault is directly reflected in the headings of damages, alimony and custody. The strategic choice made at the very outset of the file is a choice that affects the whole of the proceedings.
The headings to be prioritised in a particular dispute are as follows:
- Compiling bank account movements and payments made to betting platforms before the action is brought
- Drawing up, with proper judgement, a list of witnesses able to show that the addiction is continuous
- Obtaining the police records in full where domestic violence or disorder is alleged
- Raising separately, in the custody claim, the concrete facts relating to the best interests of the child
- Assessing the dimension of economic violence together with the claims for damages and alimony
- Determining the choice of the court with territorial jurisdiction having regard to the ease of gathering evidence
Independent Legal provides advisory services and conducts litigation throughout the entire process in disputes arising from family law, from the preparation of evidence before the action to the pursuit of custody and alimony claims.