Divorce Cases (Contested Divorce)

What Is Divorce?

Over time, however, one or both of the married partners may come to engage in words and conduct that prevent married life from working. As a result, domestic arguments and tensions arise from time to time, followed by divorce.

Divorce is the termination, by court decision, of a validly concluded marriage during the lifetime of the spouses on the grounds and conditions provided for by law. (Boşanma Hukuku [Divorce Law], Ö.U. Gençcan)

Dozens of factors, such as people becoming increasingly individualistic, a reduced need for others, the gradual weakening of traditions in society, economic and social developments, the spread of communication and of social media in particular, and the reduction of social pressure on marriages as divorce becomes increasingly accepted as normal in society…, are increasing divorce rates in society.

According to TÜİK (Turkish Statistical Institute) data, while the number of marriages in 2020 was 487,270, the number of divorce cases filed in the same year was almost half that figure, at 246,561.

Legal Basis of Divorce and the Competent Court

Divorce is regulated in the Second Chapter of the Turkish Civil Code, and the grounds for divorce are set out in Articles 161-166.

Grounds for a Contested Divorce Case

The grounds for divorce can be examined under two main headings: general and special grounds for divorce. In addition, we will address the type of divorce known as Uncontested Divorce in a separate article.

The contested and special grounds for divorce may be listed as follows:

The general grounds for divorce, in turn, are regulated in Article 166 of the TCC. These are:

In this article, we will focus on divorce cases on the ground of Irretrievable Breakdown of the Marital Union (Severe Incompatibility), the most common of the grounds for divorce.

Fundamental Breakdown of the Marital Union

Article 166/1 of the TCC (Law No. 4721):

“Where the marital union has been so fundamentally shaken that the spouses cannot be expected to continue their common life, either spouse may file for divorce.” as provided above.

For the provision of Article 166/1 of the TCC (Law No. 4721) to apply, two conditions must be met together: the marital union must have been fundamentally shaken, and common life must have become unbearable.

1. Irretrievable breakdown of the marriage
2. Shared life becoming intolerable

The fact that the parties have not come together, have not lived together, the reasons and motives for the marriage (such as a posting), the absence of a wedding ceremony or the absence of sexual relations do not prevent a divorce decision.

Either spouse may file a divorce case. It does not matter whether the spouse filing the case is at fault.

Types of Violence Accepted as Grounds for Divorce

In divorce cases filed on the ground of irretrievable breakdown of the marital union, the conduct that may constitute grounds for divorce includes emotional, economic, physical, sexual, social and visual violence.

• Emotional violence
• Economic violence
• Physical violence
• Sexual violence
• Social violence
• Visual violence

Emotional Violence

Any words or conduct that cause psychological pain and harm constitute emotional violence. Belittling, accusatory, oppressive, exclusionary, trust-undermining and indifferent behaviour constitutes emotional violence. Examples of emotional violence include mocking a person’s weight, appearance or body parts; humiliating them physically, economically, emotionally and sexually; comparing them with others; disclosing marital and particularly bedroom secrets; disparaging the spouse and what he or she does; accusing the spouse of not being a virgin, of theft, of immoral conduct, of infidelity, of perverse relationships, of cheating or of impotence; insulting the spouse, the joint children or the family; saying that one is tired of the spouse, does not love or does not want him or her; acting oppressively to prevent the spouse from seeing friends, neighbours or relatives; turning the spouse, the children and his or her family out of the home; rejecting or failing to care for stepchildren; showing no interest in the spouse’s health; constantly coming home late or not coming home without reason; keeping photographs of a former spouse or fiancé(e); and saying that one cannot forget him or her.

Economic Violence

Economic violence by the parties towards each other may take various forms. Situations that may be regarded as economic violence include the spouse not working, the wife being prevented from working despite wishing to do so, in particular a professionally qualified wife not being allowed to work, frequently changing jobs by failing to persevere in workplaces, excessive borrowing, causing the home to be subject to attachment, gambling in a manner incompatible with one’s economic situation, failing to provide an independent shared home, removing the household goods from the shared home, cutting off the electricity and water to the home, and failing to pay the rent.

Physical Violence

Any conduct that harms the physical integrity of the other spouse is regarded as physical violence. Examples of physical violence include one spouse pushing, hitting, pulling the hair of or beating the other, or remaining silent while the spouse is beaten by relatives.

Sexual Violence

In addition to its social purposes, marriage also has the purpose of satisfying sexual desires in a legitimate manner. The spouses should satisfy each other sexually and should have sexual relations at reasonable intervals. The Court of Cassation has regarded the absence of sexual relations for a period of 5 months as a ground for irretrievable breakdown of the marital union. If the wife or husband has a sexually transmitted disease and avoids treatment, this is a ground for divorce. The existence of a permanent cause preventing sexual relations is a ground for divorce. Having or requesting relations by unnatural means, disclosing sexual inadequacy without any therapeutic purpose, engaging in conduct that undermines sexual fidelity such as frequently meeting others, being seen holding hands with someone else, having emotional conversations or exchanging messages with others or bringing someone else into the home, and having sexual relations with someone else may be regarded as sexual violence.

Social Violence

Oppressive conduct directed at the spouses’ social life constitutes social violence. Examples of social violence include interfering with the spouse’s style of dress or remaining silent in the face of interference by one’s family, constantly drinking alcohol beyond the ordinary or forcing the spouse to drink, using drugs, exerting pressure on religious matters, engaging in superstitions, cursing, and restricting the spouse’s social relationships.

Visual Violence

Improper written or video recordings constitute visual violence. Improper words and conduct in telephone conversations are conduct that may form the subject of a divorce action on grounds of irretrievable breakdown of the marriage.

Attempting to use bedroom recordings contained on a CD is also conduct that may form the subject of a divorce action on grounds of irretrievable breakdown of the marriage.

Duration, Costs and Attorney's Fees of the Case

How Long Divorce Actions Take

Under present conditions, in divorce cases on the ground of irretrievable breakdown of the marital union, which are contested divorce cases, the proceedings at the court of first instance take at least 1 to 1.5 years when everything proceeds smoothly and without delay. This period does not include the appeal and cassation stages. Where the decision of the court of first instance is appealed, the appeal stage takes approximately 6 – 12 months, while the Court of Cassation stage is completed within 3 – 6 months.

Litigation Costs

For 2021, costs of approximately TRY 400 are charged when a divorce case is filed.

Lawyer’s Fees

Although representation by a lawyer is not mandatory in divorce cases, a lawyer’s fee will have to be paid if the case is conducted by a lawyer. The fee is determined for each case according to its content and the specific circumstances.

Under our law, there is no requirement for actions, and accordingly divorce actions, to be conducted by a lawyer. In other words, any natural person who has the capacity to exercise civil rights and is not under legal restriction may bring this action.

However, since divorce actions follow a particular procedure and require technical knowledge, it is advisable to obtain legal assistance from a lawyer to avoid any loss of rights.

Claims for Maintenance, Custody and Compensation

In a divorce action, together with the divorce, the court will also rule on maintenance (for the child and the spouse), custody, pecuniary and non-pecuniary damages and, if any, jewellery.

• Maintenance (for the child and the spouse)
• Velayet
• Pecuniary and non-pecuniary damages
• Jewellery

Jewellery may be claimed separately from the divorce case or together with it.

Custody and Pedagogical Assessment

Where there is a dispute over the custody of the child in divorce cases, the court, in accordance with the best interests of the child, also decides with whom the child will stay during the proceedings, to whom custody of the child will be granted at the end of the case, and how personal contact will be established between the child and the spouse not granted custody.

The court will have a pedagogue carry out an assessment on these matters.

These pedagogues attached to the courts carry out the necessary examinations where the child is located, interview the child and the spouses and, as a result, give an opinion on to whom custody of the child should be granted and how personal contact should be established between the child and the spouse not granted custody.

To these reports prepared by pedagogues social investigation report (SİR) in legal terminology.

Amount of Maintenance and Damages

Sample Petition

ANKARA
TO THE DUTY FAMILY COURT

CLAIMANT: NAME – TR ID NO: ADDRESS

DEFENDANT: NAME – TR ID NO: ADDRESS

SUBJECT: Action for divorce under Article 166 of the TCC, with claims for divorce, maintenance, custody and pecuniary and non-pecuniary damages.

Explanations

1- I married the defendant on …….. . From this marriage we have a joint child named …. , born on ….. .

2- (The matters giving rise to the filing of the divorce case should be set out in this section.)

Maddi Tazminat Talebi

Although I have fully performed all the duties and responsibilities imposed on me by the marital union, there is no longer any possibility of continuing our de facto cohabitation owing to the defendant’s wholly and seriously culpable conduct, swearing and insults, failure to perform the duties of the union, social, physical and economic violence, and approval, by remaining silent, of pressure and interference from the family.

My existing and expected interests have been impaired by the marriage having ended owing to the defendant’s full and serious fault. The amount of compensation corresponding to the expected interests should equal the benefits that the faultless spouse would have obtained within the marital union had there been no divorce. The law does not specify what the existing and expected benefits to be determined when awarding pecuniary damages are; this matter is left to the discretion of the judge. (Article 174/1 TCC)

Claim for Non-Pecuniary Damages

Owing to the divorce, I have also suffered great distress and humiliation, I have been subjected to social, economic, physical and psychological violence throughout the marital union, I have been insulted and degraded, and my personality rights, consisting of moral and legal values protected by the legal order, have been seriously violated. The events caused by the defendant have led to my psychological breakdown.

A breach of the spouses’ duties to live together and to assist one another constitutes an attack on personality rights. The defendant’s acts in the form of swearing and insults, degradation, and social, physical, psychological and economic violence constitute an attack on personality rights and require non-pecuniary damages. (Article 174/2 TCC)

Request for Interim and Poverty Maintenance and Custody

The defendant works as a ……. and has a regular salary and income of approximately ………… . In addition, the defendant’s house located in the province of Ankara is let out, and the defendant has rental income of ………TL.

There is no longer any benefit to the parties, the institution of the family or the public in the legal continuation of a marital union that has ended in fact.

LEGAL GROUNDS: TCC, Code of Civil Procedure, Attorneyship Law and related legislation

EVIDENCE:

– Civil registry records, social and economic status inquiry, income documents,

-Witness statements, telephone and WhatsApp calls, records and images, land registry records, expert examination, telephone call records, photographs, social media posts and images, wedding photographs and their CD’s, oath and all other lawful evidence.

RELIEF SOUGHT: For the reasons set out and explained above, and in line with the matters to be considered ex officio, I request:

1- That we be divorced pursuant to Article 166/1 of the TCC,
2- That custody of our joint child ……………. be awarded to me,
3- That interim maintenance of ………. TL per month be determined and awarded to me, and that the maintenance so awarded continue as poverty maintenance (yoksulluk nafakası) after the divorce judgment becomes final,
4- That interim maintenance of …….TL per month be determined and awarded for our joint child, and that the maintenance so awarded continue as child maintenance (iştirak nafakası) after the divorce judgment becomes final,
5- That ………..-TL in pecuniary damages and ………..-TL in non-pecuniary damages, together with statutory interest, be collected from the defendant, who is wholly and gravely at fault for the breakdown of the marital union, under Article 174/1-2 of the TCC,
6-I respectfully request that the costs of the proceedings and the attorney’s fees be imposed on the defendant. 01/01/2021

Claimant
signature

Annexes:
1-Family civil registry record of the parties

Source Used

• Boşanma Hukuku [Divorce Law], Ömer Uğur Gençcan