DIVORCE LAWSUITS (FAMILY LAW) IN TURKEY – ENG 18.4.20
DIVORCE LAWSUITS ( FAMILY LAW ) IN TURKEY
There are two kinds of divorce procedures in the Turkish Civil Code. The first of these procedures is the “uncontested divorce”. This procedure takes place when agreements about all the issues that can be considered under the umbrella of marriage union are provided with a written protocol and accepted before the judge. The other procedure is the “contested divorce,” which takes place when the parties cannot agree on common ground. The main difference between the two procedures is that; in uncontested divorce, the reasons for divorce or who is the faulty party are not questioned, while in contested divorce, the reasons laid down by the laws for the divorce investigated by the court about why the marriage ends. As a result of this investigation, the judge determines the fault rate and, if any, determines the parties‘ claims for pecuniary and non-pecuniary damages according to this rate. The main reason why the process in contested divorce cases is long is because this investigation , collecting parties’ evidence and witness statements take a long time.
The “Uncontested Divorce” is a procedure and legal remedy that couples who have been married for at least 1 year can use. In order to carry out this procedure, the parties have to first come to agreement on all the consequences that may change or result from the termination of the marriage, and they have to sign this agreement in written as a protocol and submit it to the file on the trial day at the latest. In case of an uncontested divorce, the parties have to join the trial in person, even if they are represented by an attorney. Because the signed protocol will be invalid unless the parties declares and agrees that; “I have signed this protocol with my free will and I accept every aspect of this protocol.”
The “contested divorce” is the type in which the spouses cannot arrive at an agreement on one or more key issues in order to conclusively terminate their marriage. The most important issue in contested divorce is that the grounds for divorce are based on one of the grounds for divorce stated in the Civil Law and that it is proved. In short, these grounds are divided into as; general and special. General grounds for divorce are irreconcilable differences. These are grounds such as; humiliation, libel, sexual anorexia and smell of sweat. The special grounds for divorce are stated in the law one by one. These are:
- Divorce lawsuit because of adultery (Turkish Civil Code, Article 161) ,
- Divorce lawsuit because of attempt against his/her life, grave assault – bad treatment – against him/her or discreditable treatment (Turkish Civil Code, Article 162),
- Divorce lawsuit because of committing crime and dishonorable conducts (Turkish Civil Code, Article 163),
- Divorce lawsuit because of willful desertion (Turkish Civil Code, Article 164),
- Divorce lawsuit because of mental illness (Turkish Civil Code, Article 165).
In a contested divorce case, only the issues related to divorce and secondary issues are concluded in other words subjects about the divorce. For this reason, the parties’ claims for pecuniary and non-pecuniary damages, alimony claims, custody claims, and household goods are investigated. Claims regarding marital property and jewelry will not be investigated within the scope of divorce lawsuits.. The judge will decide on the separation of the files in terms of these claims, these cases filed for divorce will be a prejudicial question for the separated file. These claims of parties shall be dealt in different files and trial.
Attorney Çağla Çinili, LLB *
Kaya & Partner Hukuki Danışmanlık
Kaya Partner Lawyers and Consultants
*Attorney Çağla Çinili is a member of the İstanbul Bar Association, her practice areas are; Family Law, Personal Injury , Administration and Petroleum Law. She has been working in Kaya Partner Lawyers and Consultants office since 2015.
