What is a Divorce Case? How is it Filed?
What is a Divorce Case?It is the termination of the marriage union by court decision as a result of the request of one or both spouses. However, the grounds for divorce are regulated in Articles 161 to 166 of the Turkish Civil Code, and spouses wishing to divorce must base their case on these grounds.
The law has divided the grounds for divorce into two categories, special and general, and stipulates that the basis of the divorce case should be based on these grounds.
Special Grounds for Divorce:
- Adultery (TMK Art. 161)
The most important obligation that a marital union imposes on spouses is undoubtedly the obligation of fidelity. For this reason, adultery is stipulated as the first and most serious ground for divorce in the law.
Adultery is when one of the spouses voluntarily and fully engages in sexual intercourse with another person during the marriage. Adultery only occurs when sexual intercourse is entered into voluntarily. Sexual intercourse through assault and rape cannot be considered adultery.
For adultery to be considered, sexual intercourse (penetration) must have occurred. Otherwise, situations such as flirting and simple intimacy cannot be considered adultery, and a divorce case cannot be based on this reason. In such cases, a divorce case based on the general ground of breakdown of the marital union can be requested.
Since adultery is difficult to prove, certain indications can be used. For example, the spouse accused of adultery staying in a hotel room with another person, going on vacation together, or entering the home of a person living alone late at night without a reasonable excuse constitute presumptive evidence of adultery. Of course, the contrary of these indications can be proven. However, once the judge is convinced of the existence of adultery, they must decide on divorce.
It is important to note that since the obligation of fidelity continues throughout the duration of the marriage union, any sexual intercourse that occurs before the marriage has ended is considered adultery.
Is forgiveness possible in adultery? The spouse who has the right to divorce due to adultery can forgive their spouse with an explicit or implicit voluntary declaration. However, by doing so, they accept that the marital union has not been shaken for themselves and give up filing for divorce on this ground.
Filing for divorce due to adultery is subject to certain time limits. According to TMK Art. 161/2, the right to file a lawsuit expires after 6 months from learning of the spouse’s adultery and in any case after 5 years from the act of adultery. Each act of adultery gives rise to a new right to sue. Even if these periods are missed, a lawsuit based on the general ground of fundamental breakdown of the marital union can still be filed.
- Attempt on Life – Severe Mistreatment – Humiliating Behavior (TMK Art. 162)
Attempting to take the life of the other spouse can occur through actions aimed at killing them, as well as by refraining from behaviors that would prevent their death. As clearly stated in the law, the behavior aimed at killing must be intentional. Behaviors that occur through negligence can only be a general ground for divorce.
Severe mistreatment must have reached a sufficient level of severity. This treatment generally manifests itself as physical behavior directed at the spouse’s bodily integrity. For example, battery, injury, starvation, and torture are among these treatments. The existence of these situations is sufficient for a divorce decision.
Lastly, while severe mistreatment is generally a physical attack, humiliating behavior is more verbal and psychological. Insulting, gossiping, and humiliating the other spouse in public are among these behaviors. As with severe mistreatment, these behaviors need to reach a sufficient level of severity.
Filing for divorce based on the reasons mentioned above is subject to certain time limits. According to TMK Art. 161/2, the right to file a lawsuit expires after 6 months from learning of the act and in any case after 5 years from the occurrence of this reason.
If the party whose life was attempted or who was subjected to severe mistreatment or humiliating behavior forgives their spouse for these actions, they give up their right to sue based on these reasons, but they can still file a lawsuit based on the general grounds for divorce.
- Committing a Dishonorable Crime – Leading a Dishonorable Life (TMK Art. 163)
Crimes that are considered immoral according to societal perspective should be accepted in this category. If the spouse’s commission of such a crime causes the other spouse to be subjected to social condemnation and exclusion, putting them in a position where they cannot go out in society, the existence of a dishonorable crime is accepted.
Especially crimes such as theft, embezzlement, drug trafficking, fraud, sexual assault, and rape are characterized as dishonorable crimes. In addition to committing a dishonorable crime, leading a dishonorable life for even one day is also accepted as a ground for divorce. Leading a dishonorable life can be defined as engaging in continuous behaviors that constitute a severe violation of moral rules. For example, legally operating a brothel or gambling house, or working in a nightclub can be considered leading a dishonorable life.
For both committing a dishonorable crime and leading a dishonorable life to be accepted as grounds for divorce, it must also be unreasonable to expect the other spouse to continue living with the one who committed the crime or leads a dishonorable life due to these behaviors.
- Abandonment (TMK Art. 164)
One of the most important features of the marital union is the necessity for spouses to live together. Spouses are obliged to live together unless they have jointly decided otherwise, or they have the legal right to live separately, or the court has decided on separation. If one of the spouses leaves the shared home without a justified reason or forces the other to leave the shared home, the marital union is considered to be shaken.
To file for divorce based on abandonment, there must be an intention to not fulfill the obligations arising from the marital union, the departure from the shared life must be unjustified, the separation must have lasted for at least six months, the other spouse must have issued a warning, and the warning must have been ineffective. Only when these conditions are met can a divorce case based on abandonment be filed.
- Mental Illness (TMK Art. 165)
After being diagnosed as a mental illness by physicians, any level of illness can be accepted as a ground for divorce, provided that it makes the shared life unbearable for the other spouse. For it to be characterized as a ground for divorce, it must be determined by an official health board report that the mental illness cannot be cured. If the report states that the illness will be cured but it will take a very long time, then a divorce case cannot be filed based on this reason; however, this does not prevent filing a case based on the general grounds for divorce. Along with the mental illness and its incurability being determined, this illness must also make the shared life unbearable for the other spouse. The judge evaluates all conditions to determine whether the illness makes the shared life unbearable for the other spouse.
