The legal order affords the family union particular protection; that protection does not, however, mean an obligation to continue a partnership that has become unbearable for one of the parties. Where the disagreements between spouses deepen over time and shared life becomes intolerable, the legislator has made it possible for the union to be brought to an end within the framework of specific procedures.
The framework of the process is drawn between Articles 161 and 184 of the Turkish Civil Code No. 4721. The law provides for two separate routes: uncontested divorce, where the spouses are agreed both on the intention to divorce and on its consequences, and contested divorce, conducted on general or specific grounds where no agreement can be reached. The choice between the two routes affects not only the length of the process but also, directly, how matters such as maintenance, compensation, custody and the liquidation of the matrimonial property regime will be resolved.
In this briefing note we address, in turn, the legal bases for bringing an action, the grounds for divorce that may be relied upon, the operation of the contested and uncontested routes, the regime of proof, the measures that may be taken during the proceedings and the stage of judgment.
The Legal Nature of the Divorce Action
A divorce action is a judicial process aimed at bringing a lawfully constituted marriage union to an end by court judgment. This route, governed by the Turkish Civil Code No. 4721, is set in motion when one of the spouses applies to the court alone or both apply together. The function of the action is not confined to ending the union; it also allows the consequences relating to personal status, financial rights and custody to be determined in the same proceedings.
Grounds for Divorce
The Turkish Civil Code No. 4721 groups the grounds for divorce into two categories, general and specific. Alongside these, where certain conditions are satisfied together, it is also possible for the spouses to divorce by agreement.
Specific Grounds for Divorce
The specific grounds set out exhaustively in the law are as follows:
- Desertion (Turkish Civil Code No. 4721, Art. 164): Where a spouse who has left the common residence fails to return for at least six months without showing a valid reason, the other spouse acquires a right of action.
- Adultery (Turkish Civil Code No. 4721, Art. 161): The other spouse may seek a divorce against a spouse who has acted contrary to the duty of fidelity.
- Mental illness (Turkish Civil Code No. 4721, Art. 165): Where it is demonstrated by a medical report that mental illness in one of the spouses renders shared life intolerable, a divorce may be ordered.
- Attempt on life, grossly ill treatment, degrading conduct (Turkish Civil Code No. 4721, Art. 162): A spouse making an attempt on the life of the other, or resorting to physical or psychological violence, is assessed within this scope.
- Commission of a degrading offence, leading a dishonourable life (Turkish Civil Code No. 4721, Art. 163): Where one of the spouses adopts a way of life regarded as degrading in the eyes of society or contrary to the law, the other spouse may bring an action.
The General Ground for Divorce: Irretrievable Breakdown of the Marriage Union
This ground, contained in Article 166 of the Code, is referred to in everyday language as “severe incompatibility”. Any circumstance that renders the marriage unsustainable for one of the spouses may be assessed under this heading. Among the manifestations frequently encountered in practice are the breakdown of communication through unceasing arguments, the exhaustion of the emotional bond between the spouses, the failure to meet financial obligations, an oppressive attitude arising from immoderate jealousy, the narrowing of the other party’s social circle, incompatibility in sexual life and neglect of the duties required by the marriage union.
Uncontested Divorce
Where the parties are agreed both in their intention to end the union and on the consequences it will produce, the route of uncontested divorce may be taken. The availability of that route is subject to three conditions: that at least one year has passed since the marriage; that a complete agreement has been reached as regards the divorce and all of its consequences and a protocol drawn up; and that the spouses appear in person before the judge and declare their intention to that effect.
Compared with contested proceedings, this method both concludes within a shorter time and leaves a less damaging effect on the parties.
Failure to Re-establish Common Life
Where a divorce action brought previously has been dismissed and the spouses have not come together for at least one (1) year following that judgment, it is accepted that there remains no prospect of common life being re-established. Under Turkish Civil Code No. 4721, Art. 166(4), upon the request of either party the court orders the divorce definitively. The purpose of the provision is to prevent the process being needlessly prolonged in marriages that continue in law despite having ended in fact.
Types of Action and the Commencement Process
Divorce actions fall under two main headings, contested and uncontested; the procedure for commencing each and the conditions required differ from one another.
Bringing a Contested Divorce Action
Where the spouses cannot agree on the intention to divorce or on its consequences, contested proceedings arise. The spouse wishing to bring the union to an end applies to the court by a statement of claim setting out the events that led to the divorce, the evidence relied upon and the requests made. The spouse against whom the action is brought need not confine himself or herself to a defence; he or she may also bring a counterclaim relying on grounds of his or her own.
In the proceedings the matters in dispute between the parties are first identified; the contested facts are then clarified by assessing the witness statements and the other evidence submitted to the file. In line with the facts proved and the conviction formed by the judge, the degrees of fault of the parties are determined; the request for divorce and the ancillary consequences of the divorce are decided on the basis of that determination. It is therefore decisive, if a loss of rights is to be avoided, that evidence of a nature and at a level sufficient to support the allegations be submitted and that witness evidence be relied upon.
Bringing an Uncontested Divorce Action
The uncontested route is preferred where the spouses have decided by common intention to bring the union to an end. For the action to be brought, the marriage must have lasted at least one year and the parties must have agreed on all the headings relating to the divorce and prepared a divorce protocol. The protocol contains clauses relating to financial arrangements — above all claims for maintenance and compensation — and to custody of the children of the marriage.
The judge hears the parties in person. Once satisfied that the declarations rest on free will, the judge orders the divorce if he finds the protocol appropriate, or if the amendments he himself proposes are adopted by the parties.
The Decisive Role of Fault in a Divorce Action
By weighing evidence obtained in accordance with the law, the court determines which spouse bears the heavier fault in the events that led to the divorce. That determination carries weight not only as regards the divorce judgment but also in shaping the ancillary consequences such as compensation, maintenance and custody.
How Fault Is Approached in General and Specific Grounds
In actions based on the general ground — that is, irretrievable breakdown of the marriage union (severe incompatibility) — it is not a condition of the court ordering a divorce that one of the spouses be found to bear the heavier fault. Alongside this, if the respondent spouse demonstrates that he or she bears no fault at all, or that the claimant’s fault is the heavier, the request may be dismissed.
In actions based on specific grounds (such as adultery, attempt on life or desertion) the burden falling on the claimant is heavier: the other party’s fault must be proved by conclusive evidence. If fault cannot be demonstrated, the court will not grant a divorce.
The Effect of Fault on the Ancillary Consequences
The determination of fault directly affects the legal consequences that will arise following the divorce:
- Interim and child maintenance: These items are assessed independently of the degree of fault. Interim maintenance secures the spouse’s subsistence while the proceedings are pending; child support, for its part, is ordered so as to contribute to the child’s care and educational expenses.
- Claims for pecuniary and non-pecuniary damages: The spouse making the claim must be free of fault, or his or her fault must be lighter than that of the other party; the obligation to pay falls on the spouse bearing the heavier fault.
- Poverty alimony: Here too it is required that the fault of the spouse making the claim be lighter than that of the other, or wholly absent; poverty alimony is not awarded in favour of a spouse bearing the heavier fault.
- Custody: The criterion in custody is not the fault of the spouses towards one another but the best interests of the child. The likelihood of custody being left with a party who harms the child, fails to perform parental duties or adversely affects the child’s emotional and physical development is, however, reduced.
Proof and Evidence in a Divorce Action
In divorce proceedings the burden of proof as a rule rests on the claimant; the facts forming the basis of the divorce must be demonstrated by valid evidence. In weighing the truth of the allegations, the court takes as its basis only evidence obtained by lawful means.
Types of Evidence That May Be Relied Upon
- Statements by persons who witnessed the events or by those close to the parties
- Proof of the allegation by tendering an oath to the other party
- On-site examination and court-appointed expert reports, where the court considers them necessary
- WhatsApp, SMS and e-mail correspondence and other written documents
- Photographs and audio and video recordings obtained in accordance with the law
- Social media posts of a nature that undermines the marriage union
- Bank receipts and hotel records supporting allegations of adultery or of financial fault
Important note: Audio recordings, images and personal data obtained by unlawful means are not taken into account in the proceedings. Telephone recordings made without the other party’s knowledge, covertly taken images and documents that impair the privacy of private life are rejected on that ground.
The Scope of Proof in Absolute and Relative Grounds
In the case of absolute grounds for divorce, proof of the fact is sufficient on its own; the court orders the divorce directly, without seeking any further evidence. The situations falling within this group are as follows:
- Attempt on life
- Adultery
- Degrading conduct
- Desertion
- De facto separation
In the case of relative grounds for divorce, by contrast, proof of the event does not suffice; the judge additionally assesses whether the marriage union has become intolerable. The situations falling within this category are as follows:
- Leading a dishonourable life
- Mental illness
- Commission of a degrading offence
- Irretrievable breakdown of the marriage union (severe incompatibility)
In short, bringing into the file evidence that matches the ground for divorce relied upon and that has been obtained in accordance with the law determines the outcome directly. If a loss of rights is to be avoided, evidence must be gathered in accordance with proper procedure and submitted in good time.
Interim Measures That May Be Taken While the Proceedings Are Pending
In order to prevent the parties suffering various forms of hardship while the action continues, the court may order a number of interim measures. The typical example of this is an order for interim maintenance on a provisional basis in favour of the spouse in the economically weaker position.
It is also possible for an injunction to be placed over assets in order to forestall any injustice that may arise at the stage of dividing property. If one of the spouses has been subjected to violence or is under threat of violence, a protection order may be given in his or her favour. As regards protecting the children of the marriage, provisional custody and the regulation of the personal relations the children are to have with their parents come into play.
Decisions That May Be Given at the End of the Action
Where the request is supported by sufficient evidence, the court orders the divorce and also regulates in the same judgment the ancillary consequences such as custody, maintenance, compensation and the division of property. Otherwise the action is dismissed.
Custody. Custody of the children of the marriage is determined by taking the best interests of the child as the basis. The parties may request joint custody; the court may allow that request if it finds it appropriate. Where the parent to whom custody has been left acts contrary to the child’s interests, a variation of custody may be sought.
Maintenance. Three separate types of maintenance may arise at the conclusion of the proceedings. Interim maintenance is awarded provisionally to the spouse who falls into economic difficulty while the action is pending. Poverty alimony is directed at remedying the economic hardship of the spouse who is free of fault in the divorce or found to bear the lighter fault. Child support, for its part, is ordered so as to meet the child’s educational and care expenses.
Compensation. Pecuniary damages serve to make good the material losses caused to the other party by the spouse at fault by reason of the divorce. Non-pecuniary damages, for their part, may be claimed in respect of the pain and distress felt by a spouse who has been emotionally harmed by reason of the events leading to the divorce.
Division of property. With the divorce, the matrimonial property regime between the spouses comes to an end and the stage of liquidation begins. Since the statutory matrimonial property regime in Türkiye is participation in acquired property, the property acquired during the marriage is divided between the spouses; personal property is kept outside that liquidation.
Courts with Subject-Matter and Territorial Jurisdiction
As regards the court with subject-matter jurisdiction, divorce disputes fall within the field of the family courts.
The court with territorial jurisdiction, for its part, is determined from two options: the court of the domicile of either of the spouses, or the court of the place where they last resided together for six months before the action was brought.
The Independent Legal Assessment
The element that determines the outcome in divorce proceedings is most often not the ground relied upon itself but how that ground is brought into the file. A failure to establish the arrangement of evidence required for proof despite relying on a specific ground, or disregarding the balance of fault when relying on the general ground, produces consequences capable of affecting the whole of the claims for compensation and maintenance. In files where the uncontested route is chosen, a carelessly drafted protocol lays the ground for fresh disputes arising once the divorce has become final.
In setting the course for a concrete file, the following headings in particular should be addressed as a matter of priority:
- Selecting the ground for divorce to be relied upon having regard to the strength of the evidence available
- Checking, before submission, whether the evidence was obtained by lawful means
- Giving concrete form to the allegations of fault so as to support the claims for compensation and poverty alimony
- Advancing in good time, during the proceedings, requests for interim maintenance, a protection order and provisional custody
- Drafting the protocol in an uncontested divorce so as to leave no gap under the headings of financial consequences and custody
- Identifying the court that accords with the rules on subject-matter and territorial jurisdiction, so that time is not lost through procedural objections
Independent Legal provides advisory services and conducts litigation throughout the whole of the process in disputes arising out of family law, from the construction of the litigation strategy and the preparation of the protocol to the judgment becoming final.