October 2005
DIVORCE CAUSES IN TURKISH LAW
Although every marriage is supposed to last forever anyone might need to divorce. Therefore we would like to indicate the divorce causes in the Turkish law. These causes are separated into two main groups: private and general. Adultery, attempt against life, cruelty and serious insult, infamous crime and dishonorable conduct, willful desertion, insanity. General divorce causes are incompatibility causing the unity of marriage irretrievably declined, the divorces in which the spouse at fault may take an action against the other party, divorces by mutual agreement, actual separation. We will now summarize these causes. Adultery, in Turkish Civil Code 161/1 it is described that if one of the spouse commits adultery, the other spouse has a right to commence a divorce suit. Adultery is voluntary sexual intercourse or attempt of sexual intercourse between a married person and a partner other than his/her spouse. Adultery isn’t a crime in Turkish Criminal Law anymore but it is still one of the divorce causes. Adultery must be committed voluntarily. Involuntary sexual intercourse is not adultery (losing consciousness, menace or compulsion, rape, etc). In adultery if the aggrieved spouse forgives the adulterer, he or she cannot claim for divorce on the ground of adultery. Taking indecent pictures of a person of the opposite sex, being seen together in indecent situations in discreet places is considered as adultery by the Supreme Court. Other private divorce causes are attempt against life, cruelty and discretable treatment. In Turkish Civil Code 162 it is stated that “one of the spouses may sue in consideration of attempt against his/her life, bad treatment against him/her or discretable treatment. If the spouse with the right to sue doesn’t open a case for 5 years after finding out the cause for divorce the case is dropped. The forgiving party doesn’t have right file a case.” The attempt against life aforementioned in this article is one of the spouses purpose to kill the other (attempt to kill, inciting to suicide). Cruelty and bad treatment is injuring the spouse’s mental or physical health by hitting his spouse, torturing, locking him/her up in the house, forcing abnormal sexual relationship etc. Discretable treatments are; insulting his/her spouse’s personality, family, creating rumors about him/her etc. The judge decides the seriousness of the treatment and the insults. The other divorce causes are infamous crimes and dishonorable conducts. The article of these causes are arranged in Turkish Civil Code 163. The infamous crimes are the crimes that are defamotary and contrary to the ethics of public. The examples of these causes are illegal trafficking of drugs, forgery, buggery, smuggling, embezzlement etc. Conducting a dishonorable life is an offence to good morale and living contrary to the public traditions. This kind of conduct has to be appeared in marriage and has to be continued. Examples of dishonorable conduct are prostitution, alcoholism, homosexuality etc. The judge must investigate whether these causes make life unbearable for the other. Willful desertion is also one of the private divorce causes. The conditions for filing lawsuit based on this cause is that one of the spouses give an end to living together by taking leave. Leaving voluntarily and not returning for at least 6 months without a valid reason is a cause to be warned by court to the deserter. Insanity is the last of the private causes. One of the spouse must have a mental illness and with no amenable treatment for opening this type of divorce case. In addition to these conditions, the living together of marriage must be intolerable to the other spouse.
The first general divorce cause is that the marriage is irretrievably broken down and the spouses cannot be expected to go on living together. Article 166/1 states that “if the foundation of marriage is irreparably shaken either of the spouses may file for divorce.” But this is not enough. Living together of marriage must become unbearable too. For example if one of the spouses becomes paralyzed or he/she is taken ill very badly or one of the spouses is sterile, these situations will not be the only cause of divorce. Besides , continuing the generation in danger or the marriage becoming unbearable for the other spouse are accepted as causes for divorce. Also the revealing of the family secrets, making insulting statements about the other, creating false rumors, bedwetting, disgusting breath, etc have been accepted as grounds for divorce. We’d like to make clear again that occuring these conditions mentioned above, the judge can not make a decision of divorce if the marriage hasn’t become intolerable. Another general cause of divorce is filing a lawsuit by the spouse at fault. A spouse who is at greater fault may obtain a divorce over the objection of the other spouse if raising the objection constitutes legal abuse and it appears unnecessary to continue the marriage in order to protect the interests of the spouse or children. Divorce by mutual agreement is another way of the divorce. If the marriage has lasted for at least one year and they have agreed to divorce, the judge accepted their demand. According to Turkish Civil Code 166/IV divorce by the actual separation is “the divorce case based on any of the causes is refused by the court and if the marriage hasn’t been reformed after three years whatever the cause the marriage is considered declined and on the demand of one of the spouses the divorce is granted by the court.”
The Turkish Civil Code permits divorces by the realization of the causes mentioned above. We wish these causes will never happen in your marriage...
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