Marriage is a legal union imposing reciprocal obligations on the parties. Where one of the spouses acts contrary to those obligations, this does not merely damage the shared life; it also results in that spouse being characterised as the party at fault in the divorce proceedings. The question of which spouse is at fault, and with what degree of gravity, is in practice the most heavily contested heading in divorce actions.
The Turkish Civil Code does not enumerate the forms of conduct amounting to fault one by one, leaving the assessment to the particular circumstances of each dispute. The consequences of fault, by contrast, are entirely clear: the gravely at-fault spouse has no possibility of claiming pecuniary or non-pecuniary damages, while a claim for poverty alimony is entertained only on condition that the claimant is not more gravely at fault than the other party. Fault therefore stands out as a criterion that directly shapes both the judgment of divorce and its financial consequences.
In this briefing note we address the place of fault within the Turkish Civil Code, the types of conduct regarded as fault, the legal consequences attached to the degrees of fault, the means of proof, and the effects of fault on alimony, damages, custody and the division of property.
The Function of Fault in the Marital Union and Its Statutory Basis
Rather than regulating the faulty conduct that brings a marriage to an end by way of a closed list, the legislature has preferred that the judge assess the concrete facts in each action. In judicial practice, attitudes such as breach of the duty of fidelity, violence, indifference towards the spouse, the exertion of economic pressure and failure to assume shared responsibilities are regularly characterised as fault.
The function of fault is not confined to bringing the marriage to an end. The fate of claims for damages and alimony also depends to a large extent on the distribution of fault; the court gives judgment on the ancillary consequences of the divorce only after establishing the parties’ position as to fault. The determination of fault must therefore be regarded as the stage of the proceedings that most affects the parties’ legal and financial position.
Conduct Regarded as Fault in Divorce
Conduct Constituting Absolute Fault
Certain forms of conduct are of such gravity as to destroy the marital union outright and are accepted by the courts as grounds for divorce in themselves. Where the existence of these circumstances is established, judgment may be given for divorce irrespective of any objection by the spouse at fault.
- Attempt on life and ill-treatment: Physical assault on the spouse, threats to kill, grave words and conduct injurious to dignity.
- Adultery: The spouse acting contrary to the duty of fidelity.
- Mental illness: A psychiatric disorder arising in one of the spouses which is incurable and which renders the shared life unsustainable for the other spouse.
- Desertion: Leaving the matrimonial home without valid justification and failing to return for a certain period.
- Commission of an offence and leading a dishonourable life: Involvement in offences of a disgraceful nature or the adoption of a way of life not accepted by society.
The circumstances listed not only constitute valid grounds for divorce in themselves but are also taken into account with considerable weight in establishing the spouses’ respective degrees of fault.
Conduct That Shakes the Marital Union to Its Foundations
The foundation of marriage is love, respect, fidelity and the sharing of common responsibilities. Conduct that erodes this foundation and renders the shared life intolerable is assessed in the proceedings under the heading of the breakdown of the marital union at its foundations. The principal forms of conduct accepted within this scope in practice are as follows:
- Acting contrary to the duty of fidelity
- Engaging in conduct of a nature to undermine trust
- Making immoral propositions
- Raising a hand to the spouse or committing physical assault
- Inflicting violence of a physical, economic or psychological nature
- Uttering words amounting to threats to kill
- Displaying conduct injurious to dignity
- Insulting the spouse and making statements contrary to the truth
- Adopting an indifferent and careless attitude towards the spouse
- Preventing the spouse from participating in working life
- Not permitting the spouse to see his or her own family
- Remaining silent in the face of the spouse being beaten by one’s own family
- Leaving the spouse stranded at the home of a relative
- Leaving the matrimonial home with a view to evading the obligations arising from the union
- Failing to provide an independent home for the spouses
- Failing to contribute to the expenses of the marital union
- Failing to accept the spouse’s presence and making it clear that he or she is unwanted
- Persistently refraining from sexual relations
- Failure to achieve sexual compatibility between the spouses
- Displaying immoderate jealousy
- Uttering curses
- Consuming alcohol to excess
- Neglecting personal care and hygiene
- One of the spouses becoming involved in an offence that demeans him or her, or leading a dishonourable life
- Mental illness arising in one of the spouses
The courts reach their finding of fault not by considering this conduct in the abstract but by weighing it within the particular circumstances of the case. The gravity of the fault is then determinative of consequences such as damages, alimony and custody.
The Decisive Role of Fault in a Divorce Action
In order to bring an action it is not required that the spouse be blameless or less at fault; it is also possible for the spouse at fault to apply to the court seeking divorce. If, however, the claimant’s fault is graver than that of the respondent, the respondent spouse may object to the action brought. In the face of such an objection, judgment of divorce may be given only if the respondent too is found to be at fault, however slightly.
The matter is expressly regulated in Article 166 of the Turkish Civil Code No. 4721:
Turkish Civil Code No. 4721 Art. 166
“If the marital union has broken down at its foundations to such a degree that the spouses cannot be expected to continue their shared life, either of the spouses may bring an action for divorce.
In the circumstances set out in the preceding paragraph, if the claimant’s fault is graver, the respondent has a right of objection to the action brought. Nevertheless, if that objection is in the nature of an abuse of right and no interest worthy of protection remains, in respect of the respondent and the children, in the continuation of the marital union, divorce may be ordered.”
No judgment on divorce, damages or alimony can be given without fault first being determined. The judge establishes the degrees of fault by assessing the parties’ acts and attitudes, and positions the spouses as blameless, less at fault, equally at fault or gravely at fault. This classification draws the framework of the financial and legal consequences of the divorce. The consequences flowing from each degree of fault are addressed separately below.
The Position of the Blameless Spouse
- The blameless spouse may bring an action; where the other party’s fault is established, judgment of divorce is given.
- He or she has the right to claim pecuniary and non-pecuniary damages.
- Since it is required that the party claiming alimony not be more gravely at fault, he or she also has the right to claim poverty alimony.
- He or she is in an advantageous position compared with the other spouse as regards the satisfaction of claims for damages and alimony.
The Position of the Less At-Fault Spouse
- An action brought by the less at-fault spouse is upheld provided that the other party’s grave fault is proved.
- He or she may claim pecuniary and non-pecuniary damages.
- He or she may seek poverty alimony.
- He or she may object to an action brought against him or her; if, however, the objection is found to be made in bad faith, the court may order divorce.
The Position of Equally At-Fault Spouses
- Where fault is equally distributed, an action for divorce that is brought may be upheld.
- Neither party may claim pecuniary or non-pecuniary damages from the other.
- One of the equally at-fault spouses may seek poverty alimony.
- As regards the legal consequences of the divorce, both spouses are assessed by the same criteria.
The Position of the Gravely At-Fault Spouse
- If the other spouse is not at fault at all, or is at fault only to a very slight degree, an action brought by the gravely at-fault spouse may be dismissed.
- There is no possibility of claiming pecuniary or non-pecuniary damages.
- Since poverty alimony requires being less at fault than the other spouse, no right to alimony arises.
- Where an action is brought against a spouse who is equally or less at fault, whether the claim is upheld lies within the court’s discretion.
Proving Fault and the Evidence Relied Upon
The courts establish with whom, and in what proportion, fault lies by examining the attitudes displayed by the spouses in the course of the marriage. This assessment is based not on abstract allegations but on concrete and demonstrable evidence.
The principal types of evidence relied upon in practice in establishing fault are as follows:
- Witness testimony: Statements of persons heard from the spouses’ close circle or from mutual acquaintances are taken into account by the court.
- Records of correspondence: Text messages, e-mails and WhatsApp exchanges between the spouses or with third parties may be submitted to the file.
- Audio and video recordings: Recordings obtained by lawful means carry evidential value; recordings of a nature that infringes the privacy of private life may, by contrast, be regarded as unlawful.
- Photographs and video footage: Footage demonstrating infidelity or the infliction of violence may be produced to the court.
- Medical reports and health records: Doctors’ reports and hospital documents supporting an allegation of physical violence or psychological harm are strong evidence.
- Police records and official reports: In allegations of violence or threats, applications made to the police or gendarmerie and the reports drawn up are accepted by the court.
- Financial records: Bank account movements, payslips and expenditure documents may be examined in order to establish whether economic obligations have been discharged.
- Private investigator reports: Although such reports are not accorded direct evidential value in Türkiye, they may be taken into account as a supporting factor according to the court’s discretion.
How Fault Is Reflected in the Divorce Process
The proportion of fault directly affects not only the decision on divorce but also headings such as alimony, damages, the division of property and custody. Once the court has determined the distribution of fault, it builds the ancillary consequences of the divorce upon that finding.
- Risk of dismissal of the action: Since the other party has a right of objection to an action brought by the gravely at-fault spouse, the claim may be dismissed.
- The shaping of damages and alimony: The gravely at-fault spouse may not claim damages; the right to alimony is likewise determined according to the distribution of fault.
- Effect on custody and the division of property: While the court determines custody according to the best interests of the child, it also has regard to the parents’ position as to fault.
Fault and the Division of Property
The division of property on divorce is carried out essentially according to the matrimonial property regime applicable between the spouses; fault is not a directly determinative criterion in that division.
- Under the regime of participation in acquired property, which is the statutory matrimonial property regime, the values acquired during the marriage are shared equally, independently of fault.
- In the calculation of the contribution claim and of the increase in value attributable to a contribution, fault does not affect the contribution made by one spouse to the other’s acquisition of property. That said, if one of the spouses has deliberately diminished the joint assets — for instance where there has been concealment of assets or misuse of joint values — such conduct may be taken into account in the division.
- Where assets are concealed during the proceedings, the court may characterise such a disposition, made with a view to defeating the other spouse’s entitlement, as unjust gain.
Fault and Damages
Claims for pecuniary and non-pecuniary damages depend directly on the distribution of fault.
- Pecuniary damages: A blameless or less at-fault spouse who suffers financial loss by reason of the divorce — whose standard of living declines, for example — may claim pecuniary damages from the other party. No such possibility exists for the gravely at-fault spouse.
- Non-pecuniary damages: A spouse whose honour and reputation have been injured, or who has suffered psychological harm, by reason of the other spouse’s gravely faulty conduct may claim non-pecuniary damages.
In determining the amount of damages, the parties’ respective degrees of fault, their economic means and the extent of the loss sustained are assessed together.
Fault and Alimony
The obligation to pay alimony is established by having regard together to the spouses’ economic circumstances and their degrees of fault.
- Poverty alimony: The spouse who is more gravely at fault may not seek this alimony. The court may order alimony in favour of the spouse who will find himself or herself in economic difficulty following the divorce.
- Child support (maintenance for the child): This is the alimony paid by the spouse who does not assume custody in order to contribute to the child’s costs of care. What is determinative here is not the spouse’s fault but the best interests of the child.
- Interim alimony: This is alimony awarded provisionally while the proceedings are pending, with a view to securing the subsistence of the party in the economically weaker position.
In assessing the amount of alimony, the parties’ incomes, the standard of living they have maintained and their economic circumstances following the divorce are taken as the basis.
Fault and Custody
In determining custody, fault is not on its own a criterion leading to the result. Nevertheless, in accordance with the principle of the best interests of the child, the court also examines the parents’ way of life and the conditions they are able to offer the child.
- Violence, neglect and ill-treatment are assessed as fault: A parent who causes the child physical or psychological harm, who remains indifferent to the child, who has an alcohol or narcotic addiction or who leads an immoral life may lose the right of custody.
- The custody claim of the spouse at fault may be dismissed: The claim of a parent who displays conduct that will adversely affect the child’s development — who takes no interest in the child’s education or who resorts to violence, for example — may not be granted by the court.
- Custody may be varied subsequently: Where the parent with whom custody has been left acts contrary to the child’s interests, the court may, upon the application of the other party, reconsider the custody arrangement.
Since decisions on custody are given with a view to protecting the child’s physical and psychological health, the spouses’ position as to fault stands out as an important element in that assessment.
Independent Legal Assessment
What determines the course of divorce files is most often not the intention to divorce itself, but how fault is apportioned. Since all claims for damages and poverty alimony are tied to that apportionment, the structure of the statement of claim and the list of evidence must be framed consistently with the allegations of fault from the very first stage. Allegations advanced at later stages of the proceedings and left unsupported by evidence are, in practice, most often of no effect on the outcome.
In determining strategy in a particular dispute, the following headings should be addressed as a priority:
- Clarifying at the pleadings stage which item of evidence each allegation of fault will rest upon
- Checking in advance whether audio and video recordings have been obtained by lawful means
- Assessing realistically, for the purposes of a claim for poverty alimony, one’s position as to fault relative to the other party
- Compiling the witness list by establishing its connection with the concrete events to be recounted
- Bearing in mind that fault has no effect on the liquidation of the matrimonial property regime, while allegations of concealment of assets must be pursued separately
- Bringing to the fore, in a custody claim, concrete material on the best interests of the child rather than on fault
Independent Legal provides advisory services and litigation representation across the whole of the process in divorce actions, from the determination of fault to the pursuit of claims for damages and alimony.