SPECIAL GROUNDS FOR DIVORCE AND PROOF REQUIREMENTS
The divorce system in Turkish family law is based on the principles of “fault” and “substitution.” The legislator has divided the grounds for divorce into two categories: general and special. The “Special Grounds for Divorce,” regulated in Articles 161 to 165 of the Turkish Civil Code, are absolute grounds listed individually in the law (numerus clausus), and if proven, leave the judge with almost no discretion in granting a divorce.
In this first section, we will examine adultery, attempted murder, extremely bad or dishonorable conduct, committing a crime and leading a dishonorable life, abandonment, and mental illness, along with their statute of limitations and practical means of proof.
1.1. Divorce Due to Adultery (Turkish Civil Code Article 161)
Adultery is defined as a married person knowingly and willingly engaging in sexual intercourse with a person of the opposite sex other than their spouse. In Turkish law, adultery is considered a special ground for divorce based on the most serious fault.
Absolute Ground: In a case based on adultery, the judge is obliged to grant a divorce the moment the plaintiff proves that their spouse committed adultery, regardless of whether the marriage has been fundamentally shaken.
Statute of Limitations: The right to file a lawsuit due to adultery expires 6 months from the date the ground for divorce is learned and in any case 5 years from the date the adultery was committed (Turkish Civil Code, Article 161/2).
Forgiveness Barrier: Continuing the marriage with a spouse knowing that they committed adultery, or declaring in writing/oral that one forgives them, completely eliminates the right to sue (Turkish Civil Code, Article 161/3).
Practical Means of Proof: Since adultery is a secret act, the Supreme Court considers strong presumptions sufficient instead of a photograph of the moment of sexual intercourse. Hotel records (shared room), midnight phone/text exchanges that go beyond the limits of trust, pregnancy, or the bringing of a person other than the spouse into the shared residence for sexual purposes are considered sufficient evidence of adultery.
1.2. Attempted Murder, Extremely Bad or Humiliating Behavior (Turkish Civil Code Article 162)
This article aims to prevent the most severe physical and psychological attacks that spouses may inflict on each other. It encompasses three different legal aspects:
Attempted Murder: Any action taken with the intention of killing the spouse (attempted poisoning, pointing a weapon, incitement to suicide). Verbal threats alone are not considered “attempted murder,” but rather “humiliating behavior” or general incompatibility. Extremely Bad Behavior: Severe physical violence, starvation, locking in a cellar, and other actions contrary to human dignity, carried out with the intention of causing suffering to the spouse. Dishonorable Behavior: These are serious and qualified insults aimed at the honor and dignity of the spouse, intended to humiliate them in society (e.g., systematic humiliation of the spouse’s family, profession, or reputation).
Time Limits and Forgiveness: Similar to adultery, the 6-month and 5-year statute of limitations applies to this article; the right to sue is forfeited for the forgiving party.
1.3. Committing Crimes and Leading a Dishonorable Life (Turkish Civil Code Article 163)
If the crimes committed by one spouse after the establishment of the marriage or the lifestyle adopted by the other spouse make the common life unbearable, a lawsuit can be filed based on this article.
Turkish Civil Code Article 163 163. Distinction and Conditions:
├── Committing a Disgraceful Crime ───> Crimes that are shameful in the eyes of society, such as theft, fraud, bribery, drug trafficking,
│ crimes such as murder.
└── Leading a Dishonorable Life ───> Gambling, running a brothel, chronic alcohol/substance addiction
… No Time Limit: In cases of committing a crime or leading a dishonorable life, the legislator has not foreseen a statute of limitations. As long as the situation continues, a lawsuit can be filed at any time.
1.4. Divorce Due to Abandonment (Turkish Civil Code Article 164)
This occurs when one spouse leaves the common residence with the intention of not fulfilling their marital obligations or fails to return to the common residence without a valid reason.
Time Requirement: For the abandonment to be legally valid, the separation must have lasted at least 4 months.
Warning Requirement: At the end of the 4-month period, a warning must be sent to the abandoning spouse via a notary or court, stating “return to the common residence within 2 months.” If the spouse does not return after another 2 months, a lawsuit can be filed after a total period of at least 6 months.
Critical Error: It is a condition that the spouse sending the warning has prepared a sincere, safe, and independent residence for the abandoning spouse and has paid travel expenses in advance. The party who caused the abandonment of the home (e.g., evicting their spouse or changing the keys) cannot file a lawsuit based on the reason for abandonment.
1.5. Divorce Due to Mental Illness (Turkish Civil Code Article 165)
The mental illness of one spouse alone is not a ground for divorce. The legislator has imposed very strict limitations for this situation as well:
Medical Impossibility: It must be medically impossible for the illness to be cured. This situation requires…This must be documented with a medical board report.
Unbearable: It is a condition that the shared life has become unbearable for the other spouse due to mental illness.
GENERAL GROUNDS FOR DIVORCE AND MUTUAL DIVORCE
The overwhelming majority of divorce cases filed in Türkiye are based on the general ground for divorce, known among the public as “severe incompatibility.” Article 166 of the Turkish Civil Code regulates the situations where the marital union has become unsustainable, the divorce of spouses by mutual declaration of will in a single hearing (mutual divorce), and the processes of de facto separation.
In this section, we will examine the phenomenon of the marital union being fundamentally shaken, the legal limits of the mutual divorce protocol, and the critical errors most frequently made in practice that lead to irreparable loss of rights.
2.1. Fundamental Shaking of the Marital Union (Turkish Civil Code Article 166/1-2)
The legislator has defined situations where, due to the nature of the marital relationship, it is no longer expected for the spouses to continue a shared life as a “general ground for divorce.” Unlike specific grounds for divorce, there isn’t a single action listed in the law (such as adultery or abandonment); rather, there is a series of events that terminate the marriage.
Relative Character and Intolerability Element: For a divorce to be granted, the marital union must be fundamentally shaken, and this situation must have made cohabitation unbearable for the plaintiff spouse.
Fault Principle: According to Article 166/2 of the Turkish Civil Code, if the plaintiff’s fault is greater, the defendant has the right to object to the lawsuit. However, if this objection constitutes an abuse of right and there is no longer any benefit worth protecting for the defendant and the children in the continuation of the marriage, the judge will still grant the divorce. General Grounds for Divorce in Practice: Behaviors that undermine trust (flirtatious correspondence violating the obligation of fidelity), insulting the spouse’s family, applying physical/psychological/economic violence, isolating the spouse from social environments, avoiding sexual duties, and gambling are considered by the Supreme Court as actions that fundamentally shake the marital union.
2.2. Mutual Divorce and its Conditions (Turkish Civil Code Article 166/3)
A mutual divorce is when spouses whose marriage has lasted at least one year reach a complete agreement on all the financial and legal consequences of the divorce. The process begins with the spouses applying to the court together or one spouse filing a lawsuit and the other accepting it.
The 4 Golden Conditions of a Mutual Divorce:
├── 1. Duration of Marriage ───────> At least one year must have passed since the date of marriage.
├── 2. Declaration of Intent ─────────> The spouses must personally declare their intention to divorce in the presence of a judge.
├── 3. Protocol Agreement ──> Full agreement on material and moral compensation, alimony, and child custody issues.
└── 4. Judge’s Approval ────────> The judge must be convinced that the protocol is in the best interests of the children.
Critical Risks in Agreed Divorce Protocols
Draft protocols prepared by spouses themselves or copied from the internet create irreversible harm in the future. Maximum attention should be paid to the following points when preparing the protocol:
Ambiguity in Alimony Items: The amounts of “child support” and “spousal support” must be clearly stated, along with the annual increase rate (such as CPI/PPI). Otherwise, a new alimony increase lawsuit must be filed every year. Custody and Personal Relationship: The agreement should specify who will have custody of the child, as well as the dates and times the child will see the other spouse during holidays and vacations. Vague phrases like “The spouses will meet by mutual agreement” can lead to crises regarding child custody through enforcement proceedings after a divorce. Property Division Trap: If the divorce agreement does not include the statement “Neither party has any remaining claims against the other based on the property regime,” after the divorce becomes final, the parties can file a lawsuit for property regime liquidation and contribution claims against each other within a 10-year statute of limitations.
2.3. Divorce Due to De Facto Separation (Turkish Civil Code Article 166/Last)
This type of divorce is based on the rejection of a divorce case by the court and the passage of 3 years from the date of the finalization of that decision.
Conditions: Exactly 3 years must have passed since the date of finalization of the rejected divorce case. During this 3-year period, the spouses must not have come together in any way to re-establish their common life (the de facto separation must have continued). Result: When these conditions are met, upon the request of one of the spouses, the judge is obliged to grant a divorce, regardless of the fault of the parties or the reasons for incompatibility. TEMPORARY MEASURES AND SEPARATION DECISION IN DIVORCE CASES
When a divorce or separation case is filed, a legal shield of protection is needed to ensure that the spouses and, if any, the children, can get through the process with the least possible material and moral damage. The legislator, through Article 169 of the Turkish Civil Code, has granted the judge very broad authority to take measures ex officio (on their own initiative) to ensure the housing, sustenance, and protection of the children during the proceedings. On the other hand, the law also allows for the complete termination of the marriage…Instead of severing ties, the Turkish Civil Code (TMK) has also regulated the institution of “Separation Decree” (Articles 167-173), allowing spouses a period of reflection without breaking their bonds.
In this section, we will examine the interim measures to be taken during the divorce proceedings, alimony and custody crises, the rules for the allocation of the joint residence, and the legal consequences of a separation lawsuit.
3.1. Interim Measures in Divorce Cases (TMK Article 169)
According to TMK Article 169; when a divorce or separation lawsuit is filed, the judge is obliged to take interim measures ex officio (even without a request) that are necessary during the continuation of the lawsuit, especially regarding the spouses’ housing, livelihood, management of the spouses’ property, and the care and protection of the children.
Four Basic Interim Measures Taken During the Litigation Process:
├── 1. Interim Alimony ───────> Temporary alimony awarded to the economically disadvantaged spouse and children.
├── 2. Housing Allocation ─────────> The family home and household goods are left to one spouse until the end of the litigation.
├── 3. Interim Custody ────────> Determining which spouse the joint children will live with during the litigation.
└── 4. Personal Relationship ────────> Establishing regular visitation days between the spouse who does not receive custody and the child.
Allocation of the Family Home and Protection of Assets
When the lawsuit is filed, the judge, considering the social and economic situations of the spouses, decides which spouse will use the family home until the end of the lawsuit. Generally, the spouse who is temporarily granted custody of the children continues to reside in the shared home. The other spouse is obliged to leave the residence. Furthermore, the judge may decide to place a lien on the family home or place a precautionary measure on vehicles/real estate to prevent the disposal of the spouses’ joint assets (sale to third parties).
3.2. Interim Alimony and Temporary Custody
The two most contentious elements of the lawsuit are interim alimony and temporary custody. These decisions are made at the beginning of the lawsuit and remain in effect until the lawsuit is finalized.
Interim Alimony for a Spouse: The mutual support obligations of spouses do not end with the filing of a divorce case. Interim alimony is awarded in favor of the spouse whose financial situation is difficult, who has no income, or who has little income due to the case, regardless of fault.
Interim Alimony for a Child: This is the type of alimony that the spouse who does not have custody is obligated to pay in proportion to their financial means for the sustenance, education, and care of the joint children.
The Principle of “Best Interest” in Temporary Custody: When determining temporary custody, the judge considers only the best interests of the child, not the faults of the spouses, in order to prevent the child’s psychology from being negatively affected during the case. Temporary custody of children, especially those at an age where they need maternal affection, is given to the mother unless a moral or physical danger to the mother is proven.
3.3. Separation Case and Decision Instead of Divorce (Turkish Civil Code Articles 167-173)
If spouses do not wish to completely sever their ties but want to reconsider their marriage by living separately for a period, they can directly file a “Separation Case.” Furthermore, even if a divorce case has been filed, the judge may grant separation instead of divorce if they believe there is a possibility of reconciliation (Turkish Civil Code Article 170).
Duration of Separation: According to the law, a separation decision can be given for a period of 1 to 3 years. This period begins to run from the date the separation decision becomes final (Turkish Civil Code Article 171).
Legal Consequences: During the separation period, the marital union legally continues; therefore, their obligation of fidelity to each other remains the same. If the spouses engage in sexual relations or have relationships with other people in a manner contrary to fidelity during this period, it becomes the subject of a new divorce case (e.g., adultery). The judge also regulates alimony and housing measures for the parties during this period. What Happens After the Period Ends? If marital life cannot be re-established after the separation period ends, either spouse may file for divorce again. Attitudes during the separation period and the failure to re-establish marital life are accepted as evidence in a divorce case (Turkish Civil Code, Articles 172-173).
INTERNATIONAL FAMILY LAW DIMENSION: LAW APPLICABLE TO DIVORCE (Private International Law and Procedural Law, Article 14)
With the globalization of marriages, one of the most complex disputes brought before family courts in Turkey is divorce cases involving a foreign element. In a divorce case between a Turkish citizen and a foreigner, or between two foreign nationals residing in Turkey, it may not be legally possible for a Turkish judge to directly apply the Turkish Civil Code.
In such cases, Article 14 of the Law on Private International Law and Procedural Law No. 5718 (Private International Law and Procedural Law) comes into play. This section; In this article, we will examine which country’s law applies to divorce cases involving a foreign element, the international hierarchy regarding custody and alimony, and the international jurisdiction of Turkish courts in these cases.
4.1. Determining the Applicable Law in Divorce (Turkish Private International Law Act, Article 14/1)
The first paragraph of Article 14 of the Turkish Private International Law Act establishes a strict hierarchical order for the applicable law (lex causae) in divorce and separation cases. A Turkish judge is obliged to follow this order in cases involving a foreign element:
Hierarchical Order of Applicable Law in Divorce (Turkish Private International Law Act, Article 14/1)14):
├── Step 1: Common National Law of the Spouses (If they are citizens of the same country)
│ └── Example: For two German citizens divorcing in Türkiye, German law applies.
├── Step 2: If there is no Common National Law ──> Common Habitual Residence Law
│ └── Example: If one spouse is Italian and the other is Turkish and they live in Istanbul, Turkish law applies.
└── Step 3: If There Is No Common Habitual Residence ──> Turkish Law (Lex Fori)
└── Example: If one spouse lives in France and the other in Türkiye, and they have different nationalities.
Common National Law: If both spouses are citizens of the same country at the time the divorce case is filed, the divorce law of that country applies, regardless of where the case is filed. Law of Common Habitual Residence: If the spouses have different nationalities, the law of the country where their common center of life (where they regularly live and reside) is located applies. Turkish Law (Judge’s Law – Lex Fori): If neither of the above two conditions exists (if the spouses have different nationalities and live in separate countries), Turkish law applies directly to the case.
4.2. Claims for Custody, Alimony, and Material/Moral Compensation
The applicable law for claims that are ancillary to divorce is separately regulated under the Private International Law Act (MÖHUK):
Alimony Claims (MÖHUK Article 14/2): Alimony claims (spousal and child support) arising after divorce and separation decrees are subject to the law of the habitual residence (place of residence) of the alimony recipient, independently of the general rule. For example, even if the divorce case is heard in Türkiye, if the foreign spouse claiming alimony lives in their own country, the alimony rules of that country may be taken into account. (Furthermore, Turkey is a party to the Hague Convention on the Law Applicable to Alimony Obligations).
Custody Claims (MÖHUK Article 14/3): In divorce cases, the law applicable to the divorce case also applies to claims regarding custody and changes to custody provisions. However, since “protection of the child” is involved, the judge may directly apply the rules of Turkish law, taking into account public order and the best interests of the child.
Material and Moral Compensation: Claims for compensation, which are among the financial consequences of divorce, are subject to the law applied to the merits of the divorce case (the hierarchy in Article 14/1).
4.3. International Jurisdiction of Turkish Courts (Private International Law Act, Articles 40-41)
The fact that a case has a foreign element raises the question of whether Turkish courts are competent to hear that case.
General Jurisdiction (Private International Law Act, Article 40): The international jurisdiction of Turkish courts is determined by the territorial jurisdiction rules of domestic law. According to Article 168 of the Turkish Civil Code, the competent court in divorce cases is the court of the place of residence of one of the spouses or the court of the place where they last resided together for six months prior to the lawsuit. If one of the spouses lives in Türkiye, Turkish courts have jurisdiction.
Joint Jurisdiction of Turkish Citizens (Article 41 of the Turkish Private International Law Act): If a person is a Turkish citizen living in a foreign country and cannot or does not wish to file a divorce case in that foreign country, the case can be filed in the court of the person’s place of residence in Türkiye, or if there is no place of residence, in the court of the place where they are residing, or if neither exists, in the courts of Ankara, Istanbul, or Izmir.
4.4. Frequently Asked Questions (FAQ) from an SEO Perspective
My spouse is German, and I am Turkish. We live in Istanbul. Which law applies to our divorce case?
According to Article 14 of the Turkish Private International Law Act, if the spouses do not share common citizenship, the law of “common habitual residence” applies. Since you both live in Istanbul, your common habitual residence is Turkey. Therefore, the provisions of the Turkish Civil Code, not German law, will apply to your case.
Both my spouse and I are Russian citizens, but we have been residing in Antalya for 3 years. Can we get divorced in Türkiye? Which law applies?
Yes, since you reside in Türkiye, Turkish courts have jurisdiction to hear this case. However, according to Article 14/1 of the Private International Law Act, your common national law takes precedence. Therefore, the Turkish judge is obliged to apply the provisions of the Russian Federation Family Code to the merits of the case (grounds for divorce, fault requirements, etc.). The case will be based on the Turkish translations of Russian laws and the requirements for proof.
Does applying foreign law prolong the duration of the case?
Yes, it generally does. Although the Turkish judge should investigate and apply foreign law ex officio, in practice, judges request that the parties submit the relevant legal texts of the foreign country to the court, with apostille certification and sworn translations. Determining and examining the content of foreign law adds an extra bureaucratic step to the case, which can prolong the duration of the proceedings.
RECOGNITION AND ENFORCEMENT OF FOREIGN COURT DIVORCE DECREES IN Türkiye
One of the biggest legal misconceptions faced by Turkish citizens or foreigners living abroad (Germany, France, England, USA, etc.) is the belief that a divorce decree issued by a foreign court will automatically be considered valid in Türkiye.
However, a divorce decree issued by a foreign court does not automatically take effect within the borders of the Republic of Turkey. A person divorced abroad remains legally married in Türkiye.To rectify this situation, i.e., to make the decision valid in Türkiye, it is mandatory to carry out “Recognition and Enforcement” procedures under the Law on Private International Law and Procedural Law (MÖHUK).
5.1. Key Differences Between Recognition and Enforcement
The procedure to be followed in Türkiye varies depending on the nature of the decision obtained from abroad:
Recognition (MÖHUK Article 58): This is the acceptance of a divorce decree issued by a foreign court as a final judgment or conclusive evidence in Türkiye. If only the fact of “divorce” is to be registered in the population registry, the recognition process is sufficient.
Enforcement (MÖHUK Article 50): This comes into play when the foreign court decision contains enforceable elements in addition to the divorce. If a foreign court judgment contains a provision regarding alimony payments, material or moral damages, or custody, and the enforcement of these provisions in Türkiye (e.g., seizure of salary or real estate in Türkiye) is desired, an enforcement lawsuit must be filed.
5.2. Two Different Solutions: Court vs. Population Registry
In line with evolving legislation, there are now two different methods for making foreign court judgments valid in Türkiye. The first is the traditional “Judicial Method (Lawsuit),” and the second is the faster “Administrative Method (Population Registration).”
Method A) Administrative Registration through the Population Registry (Article 27/A of the Private International Law Act)
This regulation, added to the population legislation by Decree Law No. 690 and subsequently made permanent by Article 27/A of the Private International Law Act, allows for the registration of divorce without going to court.
Conditions for Divorce Registration at the Population Registry Office:
├── 1. Mutual Application ──> The spouses must apply together, either in person or through their representatives (lawyers).
├── 2. Nature of the Decision ────> The foreign court decision must be a “divorce” decision.
├── 3. Finality Annotation ────> The decision must be final according to the law of the country where it was issued.
└── 4. Public Order ─────────> The decision must not be clearly contrary to Turkish public order.
Critical Limit: Population registry offices can only register the fact of “divorce”. They cannot register the financial/legal consequences of a foreign court decision, such as custody, property division, alimony, or compensation. Court proceedings are still necessary for these additional claims. Furthermore, this method cannot be used if one spouse refuses to apply.
Method B) Recognition and Enforcement Case in Family Court
If one spouse refuses to register, if the spouse cannot be reached, or if enforcement of provisions such as alimony and custody from a foreign court decision is desired in Türkiye, filing a case in the Family Court is mandatory.
Notification Process and the Importance of a Lawyer: The biggest delay in recognition and enforcement cases occurs during the notification process to the defendant spouse abroad. Since notifications abroad are made through consulates, the case may take 1-2 years to conclude. However, if both spouses appoint a lawyer in Türkiye, the case can be concluded in a single hearing (within 1-2 months) without being subject to notification deadlines.
5.3. Essential Documents Required for Recognition and Enforcement
The following documents must be prepared in full for both applications to the Population Registry Office and cases filed in the Family Court:
Original Foreign Court Decision: The official decision text with a wet signature/seal obtained from the court that issued the decision.
Rechtskraftvermerk (Certificate of Finality): A certificate or document affixed by the court indicating that the decision is no longer subject to appeal and is final.
Apostille Certificate: A certificate of authentication issued by the competent authorities of the country where the decision was issued (e.g., the Governor’s Office or the Presidency of the State Court in Germany), confirming that the document is internationally valid.
Official Translation and Certification: All these documents must be translated into Turkish by a sworn translator in Türkiye and certified by a Notary Public or Consulate.
5.4. Frequently Asked Questions (FAQ) from an SEO Perspective
I got divorced abroad but haven’t filed a case in Türkiye. Can I remarry?
No, you cannot remarry. Because you are still registered as married to your ex-spouse in Turkish population records, marriage registration offices will reject your marriage application. To remarry, the foreign court decision must be recognized or registered in Türkiye.
My ex-spouse opposes filing a recognition lawsuit in Türkiye. Can I have my divorce recognized in Türkiye without their consent?
Yes, you can. Your ex-spouse’s consent or signature is not required. You can file a unilateral recognition and enforcement lawsuit in a Family Court in Türkiye. In this case, the court will serve the lawsuit petition to your ex-spouse (even if they are abroad). Even if your spouse does not participate in the lawsuit or objects, if the foreign court decision is procedurally correct, the judge will issue a recognition decision.
Will a custody decision issued by a foreign court be directly valid in Türkiye?
No, it will not. For the custody of the children to be valid and enforceable in Türkiye, the part of the foreign court decision relating to custody must be enforced in Türkiye. Until the enforcement decision is obtained, the custody of the children remains suspended or in its previous status under Turkish law.
Yanıt yok