A marriage made under the supervision of an official can only be terminated by a judge’s decision if there are legal grounds for divorce. The reasons for divorce cases, which are divided into two as contested or uncontested, are as follows; adultery, intent to harm, mistreatment of the spouse, divorce from the spouse who committed a disgraceful crime, abandonment, mental illness, being shaken of the foundation of the marriage union, consensual divorce and de facto separation.
If there are grounds for divorce that are not written in the law, the Supreme Court has to decide. Some of the general divorce grounds accepted by the Supreme Court are as follows; distrust-shattering behaviors, avoiding sexual intercourse, forcing the spouse to have sexual intercourse in an unnatural way, mistreating and insulting the family members of the spouses, being subject to enforcement proceedings due to excessive debt, declaring that they do not love their spouse, being insensitive to the spouse’s independent housing request, not helping to the spouse’s housework. avoidance, do not caring for their children, telling the secrets of marriage to others, accusing the spouse of immorality…
The divorce case is filed in the family court of the residence address of one of the spouses or the place where they have resided together in the last six months. If there is no family court in their location, they can be filed in the civil court of first instance.
Consensual Divorce; If the spouses who have been married for at least 1 year apply together by determining the protocols (Custody, Financial issues etc.) or if one spouse accepts the lawsuit filed by the other spouse, the foundation of the marriage union is considered to be shaken. Although this is not a requirement in other divorce cases, both parties must be present at the hearing in an uncontested divorce. It is obligatory for the judge to be convinced that he/she has freely expressed his/her will by listening to the parties himself/herself and to approve the protocol accepted by the parties. The judge may make any changes he/she deems necessary in this protocol, taking into account the interests of the parties and the children. In this case the parties shall be subject to the adoption of amendments divorce.
Contested Divorce; Which party is at fault in the divorce between the parties, material and moral compensation, alimony, custody, sharing of household goods, etc. It is a type of case where there is a certain contention on such matters.
- Common Grounds for Divorce; Severe incompatibility, shaking of the foundation of the marriage union to such an extent that it cannot be expected from them to maintain a common life… In cases filed for general divorce grounds, the fault of the other party must be proven.
If the plaintiff is more culpable and the defendant has objected to the divorce case, the judge will dismiss the divorce case. Exceptionally, if the objection is an abuse of right, the judge may still decide to divorce.
If the plaintiff is less faulty, the objections of the defendant will be insignificant and the judge decides on divorce.
- Specific Grounds for Divorce; In the divorce case filed based on these reasons, which are limited in the law, the plaintiff does not have to prove whether the other party is at fault. It is sufficient only to prove the existence of a specific reason for divorce.
In the event that the lawsuit filed with any of the reasons for divorce (whether specific or general) is dismissed and three years have passed from the date of finalization of this decision, common life may not be re-established for whatever reason. In this case, the union of marriage is deemed to have been shaken to its foundation and a divorce is decided upon the request of one of the spouses. The fact that the parties have come together for a temporary period but without the will to re-establish the common life does not mean that the common life has been re-established. However, if the common life has been re-established even though more than this period has passed, then a divorce case cannot be filed based on this reason.
If we examine the specific reasons for divorce, which we have stated as limited in the law, one by one;
1.Adultery (Cheating): Adultery, which is a clear violation of the spouses’ obligations of fidelity to each other, means the sexual intercourse of one of the spouses with someone other than his or her partner of the opposite sex. With its explanation in its decision dated 25.06.2013 M. 2012/16833, Dcs. 2013/17864, the 2nd Legal Chamber of the Supreme Court of Appeals stated that in case of cases that remain at the stage of attempt and give the impression of adultery, the lawsuit filed based on the reason for adultery should be accepted. According to that decision;
“…The fact that a woman takes another man into a shared residence while she is alone and that this person is caught while hiding in a semi-naked state indicates the existence of adultery. In this regard, adultery has been proven. The contested divorce case of the plaintiff-counter-defendant husband must be accepted due to adultery…”
With the explanation in this decision of the Court of Cassation, it has been stated that if there are cases that remain at the stage of attempt and give the impression of adultery, the lawsuit filed based on the reason for adultery should be accepted.
A lawsuit must be filed for adultery within 6 months from the other spouse’s learning of the reason for adultery, and in any case within 5 years from the end of the act of adultery. After these periods have passed, a divorce case cannot be filed only on the grounds of adultery, but a lawsuit can be filed based on adultery and general divorce grounds at the same time.
The other spouse who forgives his wife for adultery does not have the right to sue. It can be declared that one has been forgiven implicitly or explicitly, orally or in writing, and waiving a lawsuit is also an amnesty. However, the permission given before the act of adultery takes place does not constitute an amnesty since the originate of the right that doesn’t be cannot be waived.
- Attempt to harm life, Very Bad or Degrading Behavior: In the following cases, the divorce case must be filed within 6 months from the date the spouse who has the right to sue learns the reason for the divorce, and in any case within 5 years from the birth of this reason.
- One spouse’s intentional acts against the other spouse’s right to life,
- Behaving in behaviors that cause torment and pain to the spouse, disrupting his/her physical and mental health,
- Severe public humiliation, insulting and cursing.
The other spouse who forgives his/her spouse due to intent on life, bad or dishonorable behavior does not have the right to sue. The fact that the spouse who filed a criminal complaint due to the occurrence of one of these reasons gives up the complaint does not mean that he forgave his wife in the divorce case.
- Committing a Crime and Leading a Dignified Life: If one of the spouses commits a humiliating crime or leads a dishonorable life, the other spouse can always file for divorce if the other spouse can no longer be expected to live together.
Whether a crime is a disgraceful or humiliating crime will be decided by the judge according to the characteristics of each concrete case. In order for a divorce case to be filed based on leading a dishonorable life, this lifestyle must be continuous. The fact that one of the spouses has forgiven the other spouse does not prevent him/her from filing a divorce case!
- Abandonment: In Article 164 of the Civil Code, it is regulated in details that a divorce case can be filed due to abandonment. In case of abandonment that has continued for at least 6 months without interruption due to one of the reasons for abandonment specified in the law, in the event that the leaving spouse does not return to the common residence without a justified reason, despite the duly warning, the other spouse can always file a divorce case. The spouse who leaves the common residence temporarily or with the consent of the other spouse is not considered to have left.
The reasons for abandonment the law are as follows;
- One of the spouses leaves the common residence in order not to fulfill the obligations arising from the marriage union,
- The spouse who is not in the common residence for another reason does not return to the common residence without a justifiable reason,
- One of the spouses forces the other to leave the common residence,
- One of the spouses prevents the other spouse from returning to the common residence without a justified reason.
The Court of Cassation has introduced certain criteria for duly warning. According to this; The full address of the invited house (the place where the key will be found if the inviting spouse will not be at home) should be stated in the warning sent by the spouse who was abandoned at least 4 months after the abandonment act, the travel expenses of the invited person should be sent with a warning letter, what will happen if the warning is not followed within 2 months. should be explained. Since the warning sent duly is one of the conditions of the case, the judge will ex officio consider whether the warning meets the legal requirements. In addition, the warning sent due to abandonment must be sincere.
Since it is accepted that the spouse who sent the warning letter forgives the other spouse’s faults and at least tolerates it, it is no longer possible to file a divorce lawsuit against the spouse who has returned to the common residence by following the warning, based on the reasons in the warning letter. The divorce case of the divorced spouse after the notice has been served does not justify the abandonment and does not give the divorced spouse the right to live separately. The spouse who leaves the divorce case before the notification has the right to live separately.
- Mental Illness: According to Article 165 of the Turkish Civil Code, if one of the spouses is mentally ill and the joint life becomes unbearable for the other spouse, this spouse can always file for divorce, provided that it is determined by the official health board report that the disease cannot be cured.
Since one of the spouses had a mental illness before marriage would be the reason for the annulment of the marriage due to absolute nullity, in the case of divorce due to mental illness, the mental illness must occur while the marriage union is still in progress.
Although there is no obligation to have a lawyer while the divorce case is pending, getting help from a lawyer who is an expert in the field on issues such as compensation, alimony, and division of assets will prevent you from losing your rights. You can always contact us for help and information.
