Marriage is a union founded on mutual trust, respect and the sharing of responsibility. Certain situations erode that bond between the spouses and render the shared life unsustainable. Substance addiction is foremost among the problems that upset the balance within the family and that frequently arise in divorce actions. The fact that the addiction damages the relationship of trust, upsets the financial balance, wears down relations within the family and leaves an adverse mark on the development of the children turns this picture into a justification for divorce.
The Turkish Civil Code No. 4721 does not regulate drug addiction under a separate heading as a specific ground for divorce. That said, when the repercussions of the addiction on the spouse’s way of life, on his or her position within the family and on the marital union are taken into account, the picture may be assessed as a ground for divorce within the scope of the irretrievable breakdown of the marital union set out in Turkish Civil Code No. 4721 Art. 166, or of the provision on leading a dishonourable life regulated in Turkish Civil Code No. 4721 Art. 163.
The Legal Basis of a Divorce Request Based on Substance Use
As we have noted above, the Code lays down no ground for divorce specific to addiction. The damage that addiction causes to a marriage nevertheless makes living together impossible for the spouses in most cases. The addicted spouse’s inability to assume his or her duties within the family, a turn to violence, financial difficulties and the harm suffered by the children from this picture may render the continuation of the marital union impossible in fact.
Where one of the spouses becomes addicted to substances, the other spouse may have recourse to an action relying on the ground of the irretrievable breakdown of the marital union (Turkish Civil Code No. 4721 Art. 166). The courts characterise addiction as conduct involving fault and may conclude that the addicted spouse has acted contrary to the obligation to sustain the marital union.
Establishing that the addiction has caused the marital union to break down is possible through evidence such as witness statements, medical reports, message and social media records and police reports. Earlier decisions of the Court of Cassation show that drug addiction is treated as a serious element of fault in divorce proceedings and that the courts are able to decree a divorce on that ground.
The general framework of the subject is addressed separately under the heading of the action for severe incompatibility based on the breakdown of the marital union.
The Conditions Required in a Divorce Action Based on Addiction
For a request for divorce to be made on the ground of substance use, the following conditions are expected to be fulfilled cumulatively.
The Use Having Become Continuous and Turned into an Addiction
The use of narcotic substances may be assessed before the courts as conduct involving fault that affects the marital union. By contrast, use occurring on a single occasion or infrequently may not be treated directly as a ground for divorce. What is decisive in the proceedings is that the use has reached the level of an addiction and that both the spouse and family life have been seriously affected by it.
Indeed, while the courts may not regard use on a single occasion as a justification for divorce in itself, where the use has reached the level of an addiction, is continuous and disrupts the family order, a ground for divorce may be accepted as having arisen.
The Marital Union Having Broken Down Irretrievably
In actions brought on the ground of addiction, it must be proved that the marriage has become intolerable and has broken down irretrievably for that reason. Pursuant to Article 166 of the Turkish Civil Code No. 4721, recourse may be had to divorce where the shared life has broken down to an extent that its continuation cannot be expected of the spouses. The courts nevertheless require that breakdown to be established by concrete evidence.
The Repercussions of Addiction on the Family Order
Substance addiction is a phenomenon that affects not only the addicted spouse but the household as a whole. The point of real importance for the proceedings, however, is that the other spouse be able to prove that the marital union has become intolerable for him or her by reason of that addiction.
The courts do not treat addiction as a sufficient ground for divorce on its own; they examine whether the addiction has caused the marital union to break down irretrievably. Where both spouses are addicted, decreeing a divorce on the ground of addiction alone may not be compatible with the purpose of the Code. The claimant spouse is therefore expected to establish that he or she is not addicted and has been adversely affected by the situation.
Proof of the Addiction
In actions for divorce based on substance addiction, it must be proved before the court that the addiction has caused the marital union to break down irretrievably and has rendered the union intolerable. Under the Turkish Civil Code No. 4721, the burden of proof in divorce actions rests on the party making the allegation. It must therefore be supported by evidence that the addicted spouse is at fault and has rendered the marriage unsustainable.
Since addiction is not a fact that the court can observe directly, it must be established by tangible evidence. The principal items of evidence that may be relied on in the proceedings are as follows:
Medical and Judicial Records
- Records of health institutions and physicians’ reports: Where a hospital or a health institution has been attended by reason of substance use, the related documents may be submitted to the file.
- Records relating to a criminal investigation: Where an investigation has been conducted, or a court decision given, in respect of the addicted spouse on the ground of the use, possession or trafficking of substances, those files carry evidential value.
- Reports relating to police intervention: Where the police have been called to the dwelling because of substance use, or where a complaint record connected with the addiction has been created, these are in the nature of concrete evidence.
- Detention and arrest measures: The fact that the spouse has been taken into police custody or arrested because of substance use forms a strong basis for proving the addiction.
Witness Statements
Witness evidence may be relied on in order to show that family life has been disrupted by the addicted spouse’s substance use. The court may in particular have recourse to the statements of the following persons:
- The close family circle: They may relate that the addicted spouse has displayed irresponsible or harmful attitudes towards his or her spouse and children.
- The work circle: They may state that the addicted spouse has behaved erratically at the workplace, that his or her employment has been terminated, or that he or she has become unfit to work.
- Neighbours and the circle of friends: They may relate the concrete incidents that have occurred in the context of the substance use.
Witness statements, by making visible the effect of the addiction on family and social life, become an important means of proof in the proceedings.
The Effect of Substance Use on the Custody Decision
In actions brought on the ground of addiction, custody of the child is determined within the framework of the principle of the best interests of the child. Pursuant to Article 182 of the Turkish Civil Code No. 4721, in giving a decision on custody the judge seeks to determine which parent is more suitable in terms of the physical, psychological and social development of the child.
Substance addiction is an important criterion taken into account in custody disputes. Assessing the possibility of the addicted parent causing harm to the child, the court may leave custody to the other parent, or it may take the course of restricting personal contact between the child and the addicted parent.
The Criteria Observed in the Custody Assessment
In forming a decision on custody, the judge bears in mind the following matters:
- Whether the addicted parent performs his or her obligations of care and supervision towards the child,
- Whether the substance use creates a danger to the safety of the child,
- The direct and indirect effects of the addiction on the child,
- How the incidents occurring between the parents have been reflected on the child,
- With which parent it is more appropriate for the child to remain in terms of physical and psychological development.
Example: If an addicted parent lives, because of his or her use, in an environment that is not safe for the child, turns to violence or neglects the child’s basic needs, the court may give custody to the other parent in order to remove the child from that environment.
Does the Addicted Parent Lose Custody?
The custody rights of an addicted parent do not come to an end automatically. Having regard to the best interests of the child, the court examines in detail the effects of the addiction on the child.
The likelihood of custody being left to the other parent increases in the following cases:
- Where the child has suffered physical or psychological harm because of the parent’s addiction,
- Where the addicted parent has caused direct harm to the child (such as neglect, abuse, or physical or psychological violence),
- Where judicial proceedings have been commenced against the parent for procuring or using substances,
- Where the parent’s way of life prevents the child from growing up in a safe and healthy environment.
The cases in which custody is not lost altogether are as follows:
- Where the parent has entered a course of treatment and has taken concrete steps towards recovery,
- Where the reports of a social worker or an educational psychologist establish that the child has not been harmed,
- Where it cannot be proved that the addicted parent has caused direct harm to the child,
- Where the court reaches the conviction that this parent is capable of assuming a positive parenting role for the child.
In judicial practice, addiction is a serious element of risk as regards custody. Where the safety and development of the child are under threat, custody is as a rule left to the parent who is not addicted; more flexible solutions may be adopted for a parent who turns to treatment and is able to establish that he or she has not harmed the child.
The Court with Subject-Matter and Territorial Jurisdiction
In actions for divorce brought on the ground of substance use, subject-matter and territorial jurisdiction are determined within the framework of Article 168 of the Turkish Civil Code No. 4721.
The court with subject-matter jurisdiction: The judicial body with jurisdiction to hear these actions is the Family Court. Where no Family Court has been established in the place in which the action is to be brought, the Civil Court of First Instance resolves the dispute in its capacity as a family court.
The court with territorial jurisdiction: Pursuant to Turkish Civil Code No. 4721 Art. 168, two courts have territorial jurisdiction in actions for divorce based on addiction:
- The Family Court of the place in which the spouses last lived together for six months,
- The Family Court of the domicile of one of the spouses.
The spouse bringing the action may institute it for hearing before whichever of these two courts he or she wishes.
The Independent Legal Assessment
In files based on substance addiction, the dispute proceeds along two axes: establishing that the marital union has broken down, and taking measures for the protection of the child without delay. It is particularly important, in files involving a risk of violence, that requests for interim custody and personal contact be raised together with the statement of claim.
The compilation of evidence also calls for care. Since an allegation of addiction rests for the most part on indirect evidence, obtaining the medical and judicial records in due form and constructing the list of witnesses correctly will determine the outcome.
The headings to be prioritised in a particular file are as follows:
- Documenting that the use is continuous and has reached the level of an addiction
- Bringing the medical records and the criminal files into the case file by the proper means
- Raising, at the commencement of the action, requests for interim measures directed at protecting the child
- Anticipating the effect on the custody assessment where treatment has been commenced
- Shaping the claims for alimony and damages in a manner consistent with the picture of fault
Independent Legal provides advisory services and conducts litigation throughout the whole of the divorce, custody and alimony processes in disputes arising from family law.