Divorce is the process of legal termination of the marriage union and is regulated in the Turkish Civil Code. This process starts when the spouses apply to the court with agreement (uncontested divorce) or disagreement (contested divorce). Divorce cases are emotionally and legally complex processes that lead to significant changes in the lives of the parties. Therefore, it is of great importance to understand the process well and make the necessary preparations before filing a lawsuit.
Legal Framework: Concept and Basis of Divorce
Divorce is the termination of the marriage union by a court decision. No. 4721 Turkish Civil Code (TCC) lists a limited number of reasons for divorce. These reasons are divided into two as general and special reasons for divorce. The general reason for divorce is the fundamental breakdown of the marriage union. Special grounds for divorce are adultery, attempt on life, bad or degrading behaviour, committing a crime and leading a life without dignity, abandonment and mental illness. Uncontested divorce is specially regulated in paragraph 3 of Article 166 of the TCC.
Turkish Civil Code – Article 166: Breaking the Marriage Union
If the marriage union is shaken to such an extent that they cannot be expected to maintain a common life, each of the spouses may file for divorce. … If the marriage has lasted for at least one year, if the spouses apply together or if one spouse accepts the other spouse’s lawsuit, the marriage union is deemed to be shaken from its foundations. In this case, in order for a divorce to be granted, the judge must hear the parties in person and be convinced that their wills are freely expressed and find the arrangement to be accepted by the parties regarding the financial consequences of the divorce and the status of the children appropriate.
Types and Characteristics of Divorce Cases
Divorce cases are basically divided into two: uncontested divorce and contested divorce.
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Uncontested Divorce: It is the case filed when the spouses reach a full agreement on all the consequences of divorce (alimony, custody, compensation, division of property, jewellery, etc.). In order to file an uncontested divorce case, the marriage must have lasted for at least one year. The parties put their agreement on these issues in writing by preparing an “uncontested divorce protocol”. If the court examines this protocol and decides that the will of the parties is freely formed and that it is not contrary to the interests of the children, it decides on divorce. Uncontested divorce cases are concluded in a much shorter period of time compared to contentious cases and they are less distressing for the parties.
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Contentious Divorce: It is a lawsuit filed in case the spouses cannot agree on divorce or issues that are secondary to divorce (alimony, custody, compensation, division of property). Contested divorce cases are longer and more complex processes where the parties have to prove their claims and defences with evidence. In these cases, the court decides by taking into account the fault rates of the parties, their economic and social status, and the interests of the children. In contentious divorce cases, evidence gathering methods such as witness hearing, expert examination and discovery are frequently used.
Litigation Process and Necessary Steps
The process of filing a divorce case includes certain legal steps:
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Preparation of the Petition: The divorce case is filed with a duly prepared petition. In the petition, the identity information of the plaintiff and the defendant, the legal grounds on which the divorce request is based (reasons for divorce under the Civil Code), summary of events, evidence and the requested results (alimony, custody, compensation, etc.) should be clearly stated. In uncontested divorce, an uncontested divorce protocol is submitted in addition to the petition. Preparation of the petition with complete and correct information is critical for the course of the case.
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Authorised and Competent Court: The competent court in divorce cases is the Family Courts. In places where there is no Family Court, the Civil Courts of First Instance hear these cases as the Family Court. The competent court is the court where one of the spouses resides or where they have been living together for the last six months before the lawsuit. This rule has been introduced in order to facilitate the parties to file a lawsuit.
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Filing of the Lawsuit and Fees: The lawsuit petition and the accompanying documents shall be submitted to the dispatch office of the competent and assigned court. While filing a lawsuit, court fees (application fee, advance fee) and advance on expenses are paid. These costs may vary depending on the type of case and the amounts requested. Full payment of fees and expenses is mandatory for the case to be processed.
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Notification and Reply Process: After the lawsuit is filed, the court notifies the defendant of the lawsuit petition. The defendant has a legal period (usually two weeks) to respond to the statement of claim. The defendant notifies the court of his/her claims and defences by submitting the reply petition within this period. It is also important to state the evidence in the reply petition.
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Preliminary Examination and Investigation Phase: Following the submission of the reply petitions, the court conducts a preliminary examination hearing. At this stage, the claims and defences of the parties are summarised, the necessary procedures for the collection of evidence are determined and the parties are encouraged to settle. After the preliminary examination stage, the court proceeds to the investigation stage. During the investigation phase, evidence collection procedures such as witness hearing, expert examination and discovery are carried out. The court makes a decision by evaluating all the evidence.
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Decision and Appeal/Appeal Process: At the end of the trial, the court decides for divorce or rejects the case. The parties have the right to appeal (regional court of justice) and appeal (Court of Cassation) against the judgement. These processes may delay the finalisation of the decision. With the finalisation of the decision, the divorce becomes official.
Additional Consequences of Divorce
Divorce does not only lead to the dissolution of the marriage, but also to many secondary (ancillary) consequences. These consequences directly affect the future of the parties and the children, if any:
- Alimony: “Poverty alimony” may be granted to the spouse who will fall into poverty due to divorce, and “subsidiary alimony” may be granted for the care and education of the joint children. It may be decided to pay “precautionary alimony” during the proceedings. The amount of alimony is determined by taking into consideration the economic situation of the parties and the needs of the child.
- Custody The custody of joint children is given to one of the parents after the divorce. The court takes the best interests of the child as a basis when deciding on custody. The parent who has custody has the authority to make decisions on issues such as education, health and care of the child.
- Material and Moral Compensation: The party who is at fault in the events leading to the divorce may be held liable to compensate the material and moral damages suffered by the other spouse. While material compensation compensates for the loss of existing or expected benefits, moral compensation aims to eliminate the pain and sorrow caused by the violation of personal rights.
- Property Sharing: The division of property acquired during the marriage union is determined according to the provisions of the property regimes in the Turkish Civil Code. Pursuant to the regime of participation in acquired property, which is the legal property regime, the spouses are entitled to the value increase shares of the goods acquired during the marriage union. Property division can be requested together with the divorce case or as a separate case.
The divorce process is a complex area that requires legal knowledge and experience. The duration and complexity of the process varies depending on whether it is uncontested or contentious. Taking the right steps before filing a lawsuit, preparing the petition completely and following the legal periods are vital to avoid loss of rights. For this reason, getting legal support from a lawyer before filing a lawsuit or during the lawsuit process is of great importance for the correct management of the process. The lawyer guides the client at every stage from the preparation of the petition to the collection of evidence, from the follow-up of the court process to the finalisation of the decision.