Article 165 of the Turkish Civil Code No. 4721 regulates mental illness that appears in one of the spouses during the marriage and whose prospect of recovery is definitively excluded by an official medical report as an independent ground for divorce, on condition that it renders shared life intolerable.
That said, not every psychiatric disorder on its own justifies a decree of divorce. For the claim to be accepted, the severity of the illness must be established, the absence of any prospect of recovery must be determined by a medical board report, and the claimant spouse must prove that the marriage has become unsustainable because of that picture. Unless these three elements are met together, the court cannot grant a divorce on the ground of mental illness.
Mental illness is at the same time one of the impediments to marriage for the purposes of the Turkish Civil Code No. 4721. The subject of this briefing note, however, is the right of action afforded to the other spouse on account of mental illness arising after the marriage has been contracted. This provision, contained in Turkish Civil Code No. 4721 Art. 165, is characterised as a special and absolute ground for divorce.
Mental Illness in the Legal Sense
The concept of mental illness covers psychiatric disorders that appreciably affect a person’s thinking, affect and behaviour and that weaken the capacity to carry on daily life. Such disorders may seriously impair cognitive functions, decision-making capacity and social relations; they most often follow a permanent or long-term course and require medical intervention.
The range of psychiatric disorders is fairly wide. Conditions such as schizophrenia, bipolar disorder, depression, obsessive-compulsive disorder and dementia may reduce quality of life by affecting an individual’s cognitive and behavioural functions. By contrast, not every disorder prevents a person from exercising civil rights, nor does it of itself render the marital union intolerable.
In divorce proceedings the legal assessment of mental illness is made along three axes: whether the illness renders the marriage unsustainable, whether there is any prospect of recovery, and whether that determination has been made definitively by official medical boards.
The Conditions Required for the Action to Succeed
That the other spouse may bring an action where one of the spouses is mentally ill is laid down in Article 165 of the Turkish Civil Code No. 4721:
Turkish Civil Code No. 4721 Art. 165
“If one of the spouses is mentally ill and shared life has thereby become intolerable for the other spouse, that spouse may bring an action for divorce, on condition that it is determined by an official medical board report that there is no possibility of the illness passing.”
An examination of the provision shows that the decree of divorce is made subject to more than one condition. For the court to accept the claim, all the elements laid down in the statute must have been met together; otherwise the action may be dismissed. These conditions are examined below under separate headings.
The Illness Arising After the Marriage
The first condition of the action is that one of the spouses is mentally ill. In addition, the illness must have appeared while the marital union was continuing. If the disorder existed before the marriage and continues after it, an action brought in reliance on Turkish Civil Code No. 4721 Art. 165 is very likely to be dismissed.
Moreover, it is not the case that every mental illness is regarded as a ground for divorce. For the provision to apply, the ill spouse must be in a condition in which he or she is unable to fulfil the responsibilities imposed by the marriage, and the illness must render the union unsustainable.
Where the illness existed before the marriage but the other spouse learned of it subsequently, or where the disorder has worsened during the marriage, that spouse has alternative courses available: he or she may, if so minded, bring an action for the annulment of the marriage, that is to say an action for nullity, or may instead take the route of divorce. This is because the Turkish Civil Code No. 4721 makes the ability of a mentally ill person to marry conditional on obtaining a medical report. Marriages contracted without compliance with that condition may attract the sanction of absolute nullity or, depending on the features of the case, the sanction of relative nullity.
Shared Life Becoming Intolerable Because of the Illness
Although the ground regulated in Turkish Civil Code No. 4721 Art. 165 is a special ground for divorce, it is not absolute in nature. That is to say, neither the existence of the mental illness nor its incurability is on its own sufficient for a decree of divorce to be granted. The legislator has left the assessment of the extent to which the illness affects the marital union to the judge and has afforded a wide margin of appraisal in this regard.
Within that framework, the court may decree a divorce only if it reaches the conclusion that the illness has rendered shared life intolerable for the other spouse. Otherwise the claim may be dismissed despite the existence of the disorder.
By way of example, where the ill spouse displays aggressive attitudes, resorts to violence, causes harm to those around him or her, or constitutes a continuing danger, a decree of divorce may come into question. It should nevertheless not be forgotten that each dispute will be addressed within its own circumstances and that the judgment will be framed according to the specific case.
Determining the Absence of Any Prospect of Recovery
Like the existence of the illness, whether there is any prospect of recovery also requires a medical assessment. For that reason, the granting of a decree of divorce depends on the permanence of the disorder being established by an official medical board report. Where a treatable illness is in issue, Turkish Civil Code No. 4721 Art. 165 cannot be applied.
The currency of the report is also of separate importance. Even if a report of an earlier date obtained before the action was brought has been submitted to the file, it may not be accepted as suitable for founding a judgment; the judge may require a new medical report to be obtained while the proceedings are pending.
The statute particularly emphasises that the report must be drawn up by an official medical board. For that reason the opinion of a private physician, psychiatrist or court-appointed expert is not regarded as sufficient; the court takes as its basis only official board reports obtained from state hospitals and fully equipped health institutions. A judgment framed without that basis may be reversed by the higher court.
Conditions such as schizophrenia and paranoia may be given as examples of disorders offering no prospect of recovery. Even so, the decision in each file will be given in line with the opinion of the relevant medical boards and having regard to the particular features of the case.
The Burden of Proof and the Evidence Available
The most critical element the spouse bringing the action must submit to the court is evidence establishing that the marriage has become intolerable because of the illness. Under Turkish Civil Code No. 4721 Art. 165 the court may decree a divorce only if this point is proved; since the existence of the illness will not be regarded as sufficient on its own, the action may otherwise be dismissed.
The claimant spouse may establish the fact of intolerability by any means of proof. The principal items of evidence relied upon in practice in this connection are as follows:
- Official medical board reports: Reports obtained from official boards must be submitted to the file in order to show that there is no prospect of recovery from the illness and how it affects the marriage. If it considers it necessary, the court may request a supplementary report from the Council of Forensic Medicine or from the psychiatric clinics of university hospitals.
- Witness statements: Family members, close acquaintances or neighbours may relate the effects of the illness on the marriage; such accounts are assessed for the purpose of showing that the union has become unsustainable.
- Concrete events arising from the illness: Incidents establishing how the disorder has affected the other spouse’s life; medical reports, hospital records or complaints made to law enforcement may be used as evidence in this connection.
- The outward manifestation of the symptoms: The court may assess the concrete consequences of the illness by examining the ill spouse’s social life, pattern of behaviour and their effects on the marital union.
The judge decides whether the illness has genuinely rendered shared life intolerable for the other spouse by weighing these elements submitted to the file together. It is therefore of great importance that the claimant party submits strong evidence capable of forming a conviction to that effect in the court.
Determination of Custody
In divorce actions founded on mental illness, custody of the children is determined by taking the criterion of the best interests of the child as the basis. Under the Turkish Civil Code No. 4721, custody is left with the parent able to ensure that the child grows up in a healthy environment and continues to develop.
As regards the ill spouse’s custody rights:
- If the illness is of such severity as to affect the child’s physical or psychological development adversely, the court tends to grant custody to the parent of sound mental health.
- In assessing the severity of the disorder and its effects on the child, reports of educational psychologists and psychologists are examined alongside official medical board reports.
- If the ill parent is wholly incapable as regards the care of the child, custody may be left with the other parent; in addition, the personal relationship with the child may be ordered to be restricted or removed altogether.
As regards the arrangement of personal relations:
- Even where custody has been granted to the healthy parent, the framework of the personal relationship the ill parent is to establish with the child is separately determined by the court.
- In order to protect the child’s psychological integrity, the right of contact may be removed altogether, supervised contact may be provided for, or short visits under expert supervision may be arranged.
In the end, before a judgment on custody is framed, the best interests of the child are addressed in all their aspects; the court seeks to identify the parent who offers the environment in which the child can continue to develop under the best conditions.
Courts with Subject-Matter and Territorial Jurisdiction
In divorce actions founded on mental illness, 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 power to hear these actions belongs to the Family Courts. If no Family Court has been established in the place where the action is to be brought, the Civil Court of First Instance resolves the dispute sitting as a Family Court.
As regards territorial jurisdiction, under Turkish Civil Code No. 4721 Art. 168 the action may be brought before the following courts:
- The Family Court of the place where the spouses lived together for the last six months before the divorce
- The Family Court of the claimant’s place of residence
The Period for Bringing the Action
No statute of limitations is provided for in the law as regards a divorce action founded on the ground of mental illness. For that reason either spouse may apply to the court in reliance on this ground at whatever stage he or she reaches the conviction that the illness has rendered the marriage intolerable.
That said, the success of the action depends on the illness being determined by an official medical board report and on the absence of any prospect of recovery being proved. Even if the action has been brought before that determination is made, the court will obtain the necessary reports and examine the nature of the disorder.
As regards the process, the respondent’s legal capacity is also of separate importance. The court must assess the respondent spouse’s capacity of its own motion; if it is understood that the spouse lacks capacity because of the illness, it must ensure that a guardian is appointed on his or her behalf and conduct the proceedings on that basis.
Appointment of a Guardian for the Spouse Alleged to Be Ill
In divorce proceedings founded on mental illness, whether the respondent spouse has capacity to act must be examined by the court. If the court concludes that the respondent lacks the capacity to enter into legal transactions because of the disorder, the legal representative must take part in the proceedings.
It is not, however, the case that a guardian is appointed directly for the spouse alleged to be ill as soon as the action is brought. The court must first investigate the severity of the illness, the respondent’s capacity to defend himself or herself, and whether he or she has legal capacity. If it is understood that the disorder constitutes a serious obstacle to the respondent protecting his or her rights, the appointment of a guardian may be requested in line with the official medical board reports.
At that stage the court may, where necessary, apply to the guardianship authority and secure the appointment of a guardian for the spouse alleged to be ill. Once a guardian has been appointed, legal transactions relating to the respondent spouse are carried out on his or her behalf by the guardian.
Relying on Breakdown of the Marital Union Where Mental Illness Exists
According to the case law of the Court of Cassation, even where the spouse’s mental illness has been established, the ill spouse cannot be regarded as at fault in a divorce action brought by the other spouse. Since fault cannot be attributed to a person whose acts are not voluntary, granting a divorce in reliance on the ground of breakdown of the marital union (Turkish Civil Code No. 4721 Art. 166(1)) is not legally accepted.
Accordingly, where one of the spouses is mentally ill, the other spouse must bring the action in reliance on the ground of mental illness rather than breakdown of the marital union. Otherwise the possibility of the claim being dismissed arises.
By contrast, it is possible for an action brought on the ground of breakdown of the marital union to be converted into a divorce action founded on mental illness by way of amendment of the pleadings. That conversion may, however, be made only at the trial stage.
Independent Legal Assessment
In files concerning divorce founded on mental illness, the element that determines the outcome is most often whether the legal characterisation has been made correctly. In practice a significant proportion of actions are dismissed because the wrong legal ground has been relied upon despite a clear clinical picture, or because the rules on reports have not been complied with. Since the process is at the same time intertwined with the law of guardianship, proceedings conducted without representation of the respondent being secured carry a risk of being vitiated on procedural grounds.
In drawing up a road map in a specific dispute, it is appropriate to give priority to the following matters:
- Documenting from the records whether the illness arose before or after the marriage
- Ensuring that the report is obtained from an official medical board and that it remains current during the proceedings
- Establishing the concrete events showing that shared life has become intolerable, linked to dates and evidence
- Where the respondent’s capacity to act is disputed, planning the guardianship process from the outset
- Choosing the correct legal ground in the pleading, bearing in mind that fault cannot be attributed to the ill spouse
- Supporting the claims for custody and personal relations with expert reports on the best interests of the child
Independent Legal provides advisory services and conducts litigation throughout the whole process, from the pre-action assessment to the judgment becoming final, in disputes arising from family law.