Family Law

In practice, divorce cases are divided into two categories: contested divorce and consensual divorce. The grounds for divorce are regulated in Articles 161 and 166 of the Turkish Civil Code.

Article 166/3 of the TMK states that “If the marriage has lasted at least one year, if the spouses apply together or if one spouse accepts the other’s case, the marriage union is deemed to have been shaken from its foundation. In this case, in order for a divorce decision to be made, the judge must hear the parties in person and be convinced that their wills have been 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. The judge may make the necessary changes to this agreement, taking into account the interests of the parties and the children. If these changes are accepted by the parties, the divorce is ruled. In this case, the provision that the parties’ confessions are not binding on the judge shall not apply.” In light of the provision, the marriage must have lasted at least one year, the spouses must apply together for divorce or one spouse must accept the other’s case, the judge must hear the parties in person and the agreement made by the parties regarding the financial consequences of the marriage and the status of the children must be approved by the judge.

The court competent for divorce cases is the Family Courts according to Article 4 of Law No. 4782. If there is no family court in the place where the case will be filed, the Civil Court of First Instance there will act as a family court.

In practice, the divorce cases that are concluded most quickly are consensual divorces. In contested divorces, the situation may vary depending on many factors such as the workload of the court and the number of witnesses to be heard in the case.

According to Article 170 of the TMK, if the judge sees the possibility of reestablishing the joint life, he/she can give a decision of separation instead of a decision of divorce. In addition, if the judge does not find the reasons for divorce in the case filed to be convincing or sufficient, he/she can also decide to reject the divorce case.

After the divorce case is filed, the judge may decide to allocate the shared residence to one of the parties. If the house is allocated to you, you can also get a restraining order if the other party constantly comes to the house and disturbs you.

After the divorce case is filed, the parties can request temporary alimony for themselves and their joint children. In practice, the amount of alimony is often decided after a Social and Economic Situation investigation is conducted. Later, this amount can be increased, decreased or removed by taking into account the economic situations of the parties and other factors.

Who filed the divorce case has no effect on whether the case is won or lost. The most important thing in divorce cases is to be able to present concrete evidence regarding the truth and proof of the allegations. Otherwise, being the plaintiff or the defendant will not play any role in winning the case.

There is no need to be represented by a lawyer to file and conduct a divorce case. One of the spouses can file this case themselves or conduct the case that has been filed. However, since divorce cases are a field that requires technical and expert expertise, it would be healthier to conduct the case through a lawyer who is specialized in this field in order to avoid losing your rights and to be able to defend yourself in the best possible way.

In such a case, you can file a divorce case against your spouse on the grounds of adultery. The law has set forth some special periods for filing a divorce case on the grounds of adultery. According to Article 161 of the Turkish Civil Code, the right to file a lawsuit expires six months after the spouse who has the right to file a lawsuit learns the reason for divorce and in any case, five years after the reason arises. Therefore, it is beneficial for the party who learns the reason for adultery to file a divorce case immediately in order not to be caught in the limitation period.

When a divorce case is filed, temporary custody of the children in common is given to one of the parties until the case is concluded, and arrangements are made for the party who is not given temporary custody to establish a personal relationship with the child. At the end of the case, the judge will decide who will have full custody of the children in common. When making his decision, the judge will also take into consideration the report to be given by the Social Service Specialist in line with the meetings with the parties and will make his decision regarding custody in the best interest of the child or children in common.

Another issue after the divorce decision is made and the marriage bond between the parties is broken is the liquidation of the property regime between the parties. The liquidation of the property regime is an issue that is not included in the divorce case and should be brought to the agenda with a separate case. In this case, the liquidation of the property regime will be made according to the property regime chosen by the parties within the marriage union. The most common property regime in practice is the regime of participation in acquired property, also known as the legal property regime.

According to Article 174/1 of the TMK, in order to claim material compensation, the faultless or less faulty party whose current or expected interests have been damaged by the divorce may request an appropriate material compensation from the faulty party. In order to claim moral compensation, moral compensation may be requested in accordance with the provision in Article 174/2 of the TMK, which states that the party whose personal rights have been violated due to the events that caused the divorce may request the payment of an appropriate amount of money as moral compensation from the other party who is at fault. In accordance with the relevant provision, the party who is faultless or less faulty in the divorce may request an appropriate amount of compensation from the other party. Although there is no binding limit on the amount of compensation that may be requested, the determination of the amount of compensation is left to the discretion of the judge in the law.

The importance of requesting alimony correctly when filing a divorce case comes to light here. If the amount of child support or alimony is insufficient after the divorce case is finalized, a separate lawsuit can be filed for an increase in alimony.

The Turkish Civil Code regulates the situations in which alimony given to the ex-spouse after divorce will end. Accordingly, if the alimony recipient remarries or one of the parties dies, the alimony is automatically terminated; if the recipient lives as if they were actually married without getting married, their poverty is eliminated or they live a dishonorable life, it is terminated by a court decision. If the alimony recipient ex-spouse lives with someone of the opposite sex without getting married, a lawsuit can be filed to terminate the alimony and if this issue is proven, the judge will decide to terminate the alimony in accordance with Article 176/3 of the TMK.

According to Article 171 of the TMK, in the event of divorce, a woman retains her personal status acquired through marriage; however, she regains her surname before marriage. If the woman was a widow before marriage, she may request the judge to allow her to keep her maiden surname. If it is proven that the woman has an interest in using her ex-husband's surname and that this will not harm the husband, the judge will allow her to keep her husband's surname upon her request. The husband may request that this permission be revoked if the circumstances change.

After the divorce case is filed, if the other party physically or through communication devices disturbs you and your family, you have the opportunity to obtain a protection order under Law No. 6284. In this context, each of the protection measures listed in Article 17 of Law No. 6284 can be requested. Some of these measures listed in the law include immediate removal from the shared residence and ensuring that the person cannot approach, not disturbing the person who made the request and their family and relatives through communication devices, and not being able to approach the person who made the request at their workplace.

The crime of breach of alimony obligation is regulated in the Enforcement and Bankruptcy Law. According to Article 344 of the EBL, a debtor who does not fulfill the requirements of the decisions regarding alimony is sentenced to preventive imprisonment for up to three months upon the complaint of the creditor. If the requirements of the decision are fulfilled after the application of the imprisonment has begun, the debtor is released. If the debtor has filed a lawsuit requesting the removal or reduction of alimony, the application of preventive imprisonment may be postponed until the end of this case, taking into account the reasons he has put forward.

The types of compensation specified in the divorce petition are divided into two as material and moral compensation. According to the established precedents of the Supreme Court, it is not possible to increase the moral compensation after it is specified in the petition. However, there is no obstacle to increasing the price through amendment in terms of the material compensation claim. It is possible to increase the material compensation claim by applying for amendment within the period.

In order to file for divorce, a special power of attorney with the legal authority to divorce is required. In addition, another requirement is that this power of attorney must have a photograph. It is not possible to file for divorce with a general power of attorney.