DIVORCE CASE
Divorce cases are one of the most sensitive areas of family law. According to the provisions of the Turkish Civil Code
(TCC), divorce can be sought either based on specific grounds or on general grounds, such as the fundamental
deterioration of the marital union. Within this framework, we will examine the normative regulations, timeframes and
procedural principles, and judicial precedents with academic rigor.
A-) Special Grounds for Divorce (TCC Articles 161-165)
1-) ADULTERY (TMK Art. 161)
According to TMK Article 161:
Reason:One of the spouses commits adultery.
Time limit:The spouse who is entitled to file a lawsuit can file a lawsuit within 6 months from the date he/she learned about the reason for the adultery
and within 5 years from the date the act of adultery took place.
Important points: In case of pardon, the right to sue is largely waived.
2-) ATTEMPT TO LIFE, VERY EVIL OR DEMOLITIONAL BEHAVIOR (TCC Art. 162)
As stated in TMK Article 162:
Reason:One of the spouses commits an attempt on the life of the other, very bad treatment or severe
humiliating behavior.
Trial:If such behaviors are “unbearable”, divorce is the way to go.
3-) COMMITTING A CRIME AND LIVING A DISHONORABLE LIFE (TCC Art. 163)
According to TMK Article 163:
Reason:One of the spouses commits a humiliating crime or lives a dishonorable life and therefore cannot be
expected to live together from the other spouse.
4-) ABANDONMENT (TMK Art. 164)
Within the scope of TMK Article 164:
Reason:If one of the spouses leaves the shared residence or prevents the spouse from returning to the shared residence without a
justified reason.
5-) MENTAL ILLNESS (TMK Art. 165)
According to TMK Article 165:
Reason:If one of the spouses is mentally ill and this condition cannot be cured, the joint life becomes
unbearable for the other spouse.
Evaluation:The court must determine, based on medical reports, whether the disease is permanent
and incurable.
B-) General Reason for Divorce: Fundamental Disruption of the Marriage Union (TCC Art. 166)
According to TMK Article 166:
Situation:If the marriage is “so fundamentally shaken that it is no longer possible for them to continue
living together,” anyone can file for divorce.
Example:Human distrust, serious lack of communication, economic and emotional gaps can be considered as examples
of being shaken to the core.
Judicial Precedents:Some decisions may be deemed sufficient to reach a point where the union becomes unsustainable, even if the other
spouse wishes to behave reasonably.
C-) Procedure: Authority, Measures and Other Legal Consequences
1-) COMPETENT COURT – TMK Art. 168
According to TMK Article 168:
Rule:In divorce or separation cases, the competent court is the court of the place of residence of one of the spouses or the place where
they have lived together for the last six months.
2-) TEMPORARY MEASURES – TMK Art. 169
The court may take measures such as temporary alimony and housing during the litigation process. Article 169 of the Turkish Civil Code mandates this
regulation.
3-) PERSONAL AND MATERIAL DAMAGES – TMK Art. 174
After divorce:
Right:Parties may file a lawsuit for moral and material damages. Even if they are divorced, their rights remain the same.
4-)POVERTY ALIMONY – TMK Art. 175
According to TMK Article 175:
Condition:The party who will become poor due to divorce may request alimony from the other party in proportion to their
financial capacity, provided that the fault is not more severe.
5-) CUSTODY AND PERSONAL RELATIONSHIP – TCC Art. 182
Non-custodial parent:
Right:TMK Article 182 regulates the right to establish personal relations with the child; it remains valid during the divorce
process.
D-) BURDEN OF EVIDENCE AND PROCEDURE PRINCIPLES
Special Reasons:For each specific ground for divorce, the party filing the lawsuit is expected to provide evidence of relevant factual
proof (e.g., witnesses, messages, photographs for adultery; medical report for mental illness).
General Reason (Art. 166):Under this article, the fundamental dissolution of a marital union is generally determined by a
holistic assessment of the concrete facts and circumstances. The judge has discretionary power.
Effect of Time Limits:If the time limit is not observed due to adultery or similar special reasons, the right may be waived.
E-) RELATIONSHIP BETWEEN DIVORCE CASE AND PROPERTY REGIME CASE
1-) LEGAL FRAMEWORK
Divorce case:The Turkish Civil Code (TCC) is regulated between Articles 161 and 184. It covers matters such as
personal rights and obligations regarding the dissolution of marriage, custody, alimony, compensation, and
lineage.
Property regime case:It concerns the liquidation of the marital property regime regulated by Articles 202–281 of the Turkish
Civil Code. The most commonly used regime is the regime of participation in acquired property, which entered into force as a
legal regime after January 1, 2002.
2-) REASONS FOR THE TERMINATION OF THE PROPERTY REGIME
According to Article 225 of the Turkish Civil Code, the property regime ends in the following cases:- Death of one of the spouses,- Acceptance of another property regime,- Filing a divorce or annulment case.
Important point:The property regime ends when the divorce case is filed; however, liquidation can only be
requested after the divorce decision becomes final.
3-) FILE DIVORCE AND PROPERTY REGIME CASES TOGETHER
Filing a divorce case is sufficient for the termination of the property regime, but a liquidation case (participation
receivable, capital gains share, etc.) is filed as a separate case.
In practice, it is not possible to file a property regime lawsuit together with a divorce lawsuit, because the condition for
liquidation is the finalization of the divorce judgment.
For this reason, first the divorce case is heard and finalized, and then a lawsuit is filed for the liquidation of the property regime.
4-) RELATIONSHIPS AND DISTINCTIONS
In terms of time:The property regime ends on the date the divorce case is filed, and the liquidation case can be filed
once the divorce is finalized.
In terms of subject:Divorce proceedings are about personal status (termination of the marriage bond); property regime
proceedings are about the division of financial rights.
Competent court:Both fall under the jurisdiction of the Family Court.
Evidence:While the divorce case is about fault and marital unity, the property regime case is about the values of the assets, the distinction
between acquired and own property, and the calculation of receivables.
5-) IMPORTANT POINTS IN APPLICATION- While the divorce case is pending, a property regime case cannot be filed; it will be rejected on procedural grounds.- Once the divorce is finalized, one of the spouses can file a property regime lawsuit within the 10-year statute of limitations (TCO Art. 146 –
Supreme Court practice).- Property regime claims (participation claim, capital gains share) are completely independent of compensation and alimony
claims.- In practice, parties sometimes try to prevent the transfer of assets by requesting interim measures during the
divorce case.
6-) CONCLUSION
Divorce cases and property regime cases are closely linked, but they are different in terms of subject matter, time and
conditions of the case.- Divorce proceedings terminate the marriage bond.- Property regime litigation ensures the fair distribution of property acquired during the marriage.- The property regime ends when a divorce case is filed; however, for its liquidation, the divorce must be finalized.
F-) RELATIONSHIP BETWEEN DIVORCE CASE AND ORNAMENT CASE
1-) DIFFERENCE IN TERMS OF LEGAL NATURE
Divorce proceedings are personal status proceedings, regulated under Articles 161–184 of the Turkish Civil Code (TCC), that terminate a
marriage. These proceedings cover matters such as dissolution of marriage, custody, alimony, compensation, and surname issues.
An ornament lawsuit is based on a claim for the return or payment of jewelry worn by a woman (usually the bride) during
marriage. Its legal basis is the provisions on donations and entitlements. It is a private law lawsuit of a financial nature.
2-) RELATIONSHIP BETWEEN THEM
The jewelry claim is not an accessory (additional) consequence of the divorce case. It does not arise automatically with the divorce; it is
submitted as a separate claim.
If the party so wishes, they can also submit a claim for jewelry along with the divorce case. In this case, the divorce case would be subject to
“accumulation of claims” (Article 110 et seq., Civil Procedure Code).
However, property regime liquidation claims cannot be considered within the divorce case; jewelry claims can be considered
alongside the divorce case. In this respect, they differ from property regime cases.
3-) IMPORTANT POINTS IN APPLICATION
Competent court:The Family Court has jurisdiction over both.
Statute of Limitations:- There is no statute of limitations for divorce cases (the periods are statute of limitations).- In the jewelry case, the request for return in kind is not subject to the statute of limitations; there is a statute of limitations of 10 years for the request for
compensation.
Proof:In a divorce case, the fault and the breakdown of the marriage union are proven; in an ornament case, the person who kept the ornaments and
whether they were returned is proven.
Advantage of opening together:Parties can resolve both the divorce and jewelry disputes in a single case.
The disadvantage is that the case becomes more complex and takes longer.
4-) RELATIONSHIP IN BRIEF SUMMARY
Divorce – personal status case.
A lawsuit based on trinkets?
Unlike the property regime, the jewelry lawsuit can be filed together with the divorce lawsuit or separately.
An ornament lawsuit is not dependent on the divorce decision; it can be filed while the marriage is still ongoing.
G-) RELATIONSHIP BETWEEN DIVORCE CASES AND CUSTODY CASES
1-) LEGAL FRAMEWORK- Divorce case (TMK art. 161–184): It is a personal status case regarding the termination of marriage.- Custody case (TMK art. 336–351): It includes regulations regarding the care, education, representation and protection of the
child.
2-) Custody in Divorce Cases- According to TMK Article 336, custody is shared between mother and father as long as the marriage continues.- In a divorce case, the judge also decides which party will receive custody when the marriage ends.- The judge bases his decision on the principle of the child’s best interests (age of the child, education, care conditions, personality traits of the
parties, etc.).-In other words, custody is one of the secondary (additional) consequences of the divorce case; it is decided
directly within the divorce case.
3-) CUSTODY AFTER DIVORCE CASE- Even after the divorce decision becomes final, custody is not a final decision.- If the conditions change (e.g., the living conditions of the mother/father are negative, the child’s interests are
damaged), the other spouse can request a change of custody by filing a separate custody case (TCC Art. 183, 349
et seq.).
4-) SUMMARY OF THE RELATIONSHIP- In the divorce case:The judge directly resolves the custody (secondary consequence).- After divorce:Custody may be the subject of an independent lawsuit (change of custody lawsuit).-Competent court:The Family Court has jurisdiction in both cases.- Criterion:In all cases, the criterion is the “best interests of the child”; parental fault alone is not decisive.
5-) CONCLUSION
Custody is an integral part of the divorce case, but it can also be an independent subject of litigation after the divorce is
finalized.- In other words, the divorce case and the custody case are intertwined: they are handled together during the divorce, and if changes
are necessary after the divorce, they are brought forward as a separate case.
H-) RELATIONSHIP BETWEEN DIVORCE CASE AND ALMOSTY CASE
1-) TYPES OF ALIMONY (ACCORDING TO THE TMK)
Temporary alimony (TCC Art. 169) is awarded to ensure the subsistence of the parties and children while the
divorce case is ongoing.
Alimony (TCC Art. 175) is paid in favor of the party who will become poor due to divorce,
indefinitely or for a fixed period.
Child support (TCC Art. 182/2) is awarded to cover the child’s care and education expenses after
divorce.
Support alimony (TCC Art. 364 et seq.) is based on kinship ties and is independent of divorce.
2-) ALMOSTHY IN DIVORCE CASE- Temporary alimony:When a divorce case is filed, the judge may decide on temporary alimony in favor of
the parties and the child, even if one of the parties does not request it.- Poverty and child support:It is an additional consequence of a divorce case. The judge decides on these
alimony payments along with the divorce decree.
3-) INDEPENDENT ALMOSTY CASE- An alimony case can be filed without a divorce case (especially for “temporary alimony” and “support alimony”).- Alimony cannot be requested before the divorce decision is finalized; however, it is possible to request
temporary alimony during the divorce case.- Child support can be filed as an independent lawsuit after divorce (if the child’s needs change, a lawsuit can be
filed to increase/decrease the amount).
4-) SUMMARY OF THE RELATIONSHIP- During the divorce case:Temporary alimony, poverty alimony and child support alimony come into play.- After the divorce case is completed:The alimony and child support provision becomes final, and a lawsuit can
be filed to increase/decrease or abolish it in the future.- Independence:An alimony case can be filed independently of the divorce (for example, if one of the spouses has not filed for divorce but lives separately
from the other, they can request temporary alimony in accordance with Article 197 of the Turkish Civil Code).
5-) CONCLUSION- Divorce cases and alimony cases are closely linked.- Provisional, poverty and child support alimony are generally decided as accessory consequences of the divorce case.- However, alimony is not necessarily dependent on the divorce; it can also be requested as a separate case.- The basic criterion in their relationship is the economic situation of the parties and especially the best interests of the child.
I-) THE CONNECTION BETWEEN DIVORCE CASE AND ESTABLISHMENT OF PERSONAL
RELATIONSHIP
1-) CONCEPTUAL FRAMEWORK- Establishing personal relations (TMK Art. 323–326):The spouse who is not granted custody, or if necessary,
third parties, can meet with the child at certain times and maintain a relationship.- This right is designed to protect the best interests of the child and the parent who cannot obtain custody of
the child.
2-) PERSONAL RELATIONSHIP IN A DIVORCE CASE- It is one of the secondary (additional) consequences of the divorce case.- According to TMK article 182/2: When deciding on divorce, the judge also decides on establishing a personal relationship between the
party to whom custody is not given and the child.- The judge regulates the scope of the personal relationship (visiting days, duration, place, holidays, special days, etc.) in
detail.- The criterion is always the best interests of the child; the wishes of the parties have limited binding power.
3-) PERSONAL RELATIONSHIP AFTER DIVORCE- After the divorce decision becomes final, the personal relationship decision also becomes effective.- However, if the circumstances change (e.g., the child becomes older, the education system changes, changes in the parent’s living
conditions), the personal relationship can be brought to trial again.- That is, the personal relationship can be changed and adapted by an independent case even after the divorce decision.
4-) SUMMARY OF THE RELATIONSHIP- In divorce proceedings: The decision on personal relationship is made compulsorily; the judge is obliged to decide on this
matter.- After the divorce case:The personal relationship can be reorganized through an independent lawsuit if circumstances
change.- Connection with custody:Whoever has custody, the personal relationship is arranged in favor of the other parent.
5-) CONCLUSION
The relationship between the divorce case and the establishment of a personal relationship can be summarized as follows:- Divorce case is the trial in which the right to personal relationship arises.- Personal relationship is ruled as an accessory consequence of the divorce decision.- After divorce, personal relationships can be changed through an independent lawsuit.- The fundamental criterion at every stage is the best interests of the child.
CONCLUSION
An examination of the Turkish Civil Code’s regulations regarding divorce law reveals that the legislature
prioritizes the protection of the family institution, but also grants the parties the opportunity to divorce
when the marital union becomes unsustainable. Specific grounds for divorce are based on the legally
unacceptable, grave acts of one of the spouses; such circumstances as adultery, attempt on life,
dishonorable conduct, or abandonment are considered to directly and immediately terminate the
marital union. In contrast, the general ground for divorce, the fundamental dissolution of the marital
union, is more flexible and is left to the judicial discretion of various social and psychological factors.
This systematic separation of grounds for divorce both safeguards the parties’ freedom to seek legal
remedies and allows judicial bodies to assess the case more fairly, based on its specific nature.
Furthermore, procedural provisions, particularly those concerning jurisdiction, interim measures,
compensation, and alimony, aim to ensure that divorce is not merely a legal termination of the
marriage but also safeguards the future of the parties and their children.
MOST WONDERED QUESTIONS ABOUT DIVORCE CASE
1-) In which court can divorce cases be filed in Türkiye?
The Family Courts have jurisdiction in divorce cases. If there is no Family Court, the Civil Court of First Instance has
jurisdiction over the same matter.
2-) Where can a divorce case be filed?
The lawsuit can be filed in the court of the place of residence of one of the spouses or in the court of the place where the spouses have lived
together for at least six months.
3-) How to file for divorce?
Divorce proceedings are initiated by filing a divorce petition with the competent court and paying legal fees. The petition
must clearly state the grounds for divorce and the requested information.
4-) What is the difference between consensual divorce and contested divorce?
Consensual divorce:If the parties agree on the divorce and its consequences, it can be completed more quickly, in a
single hearing.
Contested divorce:If there is no agreement between the parties, the process is longer and more costly.
5-) Is there a one-year requirement for a consensual divorce?
Yes, for a consensual divorce, the marriage must have been at least one year old. Only a contested lawsuit can be filed before
this period has passed.
6-) How long does a contested divorce case take?
It typically takes 1–1.5 years. With appeals or appeals, this period can extend to 2–3 years.
7-) Is a lawyer mandatory in a divorce case?
Absolutely not; however, legal support is very useful in preventing loss of rights.
😎 Is it mandatory to provide reasons in the petition in a divorce case?
Contested divorce: It is mandatory to provide reasons.
Consensual divorce: There is no requirement for justification; the parties submit an agreement protocol.
9-) My spouse does not want to get divorced; can I still file a lawsuit?
Yes, the party seeking divorce can file a contested lawsuit; the judge will make a decision after evaluating the grounds.
10-) Is it necessary to present evidence and witnesses in a divorce case?
Yes, it is important to present witnesses and evidence to prove the alleged acts (e.g., adultery, abuse),
especially in contested divorces.
11-) Can measures be taken regarding housing and alimony during the divorce case?
Yes, requests for housing allocation and alimony may be evaluated by the court as temporary measures during the litigation process.
12-) How is property divided after divorce?
Property liquidation is a separate process from divorce proceedings. Acquired assets are distributed equitably between the spouses.
Property liquidation proceedings can be filed alongside divorce proceedings. However, it is recommended that property liquidation
proceedings be filed separately from divorce proceedings.
13-) How is alimony determined?
The judge determines temporary, poverty and child support decisions by taking into account the income status of the parties, their
standard of living and the needs of the children, if any.
14-) How is child custody determined?
Custody is determined by a judge based on the child’s best interests, the parents’ circumstances, and their ability to
care. The right to personal contact is also protected.
15-) What are the judicial stages in the divorce case process?
It consists of the exchange of petitions, preliminary examination, investigation, oral trial, and judgment. A consensual divorce
can be finalized in a single hearing.
16-) When does the divorce decision become final?
If no objection is made within 2 weeks after the reasoned decision is notified to the parties, the decision becomes final.
17-) How to apply to the higher court?
In case of objection to the decision, first the Regional Court of Justice (appeal) and then the Supreme Court (appeal) stage is followed.
18-) Can foreigners file for divorce in Türkiye?
Yes, foreigners can also file for divorce in Türkiye if the marriage is registered in Türkiye and there is
jurisdiction.
19-) I got divorced abroad; what should I do in Türkiye?
For a divorce decree to be recorded in the civil registry, an application must be submitted to the relevant registry office along with a
Turkish translation of the decree. Ancillary decisions such as alimony and custody must be verified through a recognition and
enforcement case.
20-) Is the divorce case visible on e-Government?
Yes, divorce cases can be tracked and inquired about via e-Government.
COURT OF APPEALS DECISIONS REGARDING DIVORCE CASES
1-) Supreme Court of Appeals 2nd HD – Decision: 2016/255 (Divorce Case Based on Special and General
Grounds for Divorce);
“…The defendant-counter-plaintiff filed for divorce based on the grounds of adultery, gross mistreatment,
humiliating behavior, and the breakdown of the marital union. The court accepted the defendant-counter
plaintiff’s case on the grounds of the breakdown of the marital union and ordered the parties to divorce.
The reasoning for the decision did not explain the defendant-counter-plaintiff’s claims based on the
grounds of adultery, gross mistreatment, and humiliating behavior in the petition, nor was any ruling made
in favor or against them. The failure to rule in favor or against the defendant-counter-plaintiff’s claims
based on the specific grounds for divorce stated in the petition is incorrect and necessitates reversal…”
2-) Supreme Court of Appeals 2nd HD – Decision: 2015/19178 (Divorce Case Based on Mental Illness (Ministry of Civil
Procedure Art. 165));
“…The lawsuit was filed based on the grounds of severe incompatibility (TCC, Article 166/1). From the evidence
gathered, it appears that the defendant man is mentally ill and a guardian has been appointed to him. There is
no case based on mental illness (TCC, Article 165). The court held that, in accordance with the Turkish Civil Code,
for a divorce to be granted, the defendant man’s actions must be voluntary. Since the defendant man’s actions
were not voluntary, accepting the lawsuit rather than dismissing it was not correct and required reversal.
3-) Supreme Court of Appeals 2nd HD – Decision: 2015/2306 (Divorce Decision in Case of Equal
Fault of Spouses);
“…From the investigation and the evidence gathered, it is understood that the defendant-plaintiff (woman) insulted and
cursed her husband, the plaintiff-defendant (husband) remained indifferent to his wife’s request for an independent
residence, did not take his wife to her assigned place, made her live with her family, and did not meet his wife’s
financial needs. The parties are equally at fault for the events that led to the divorce. Given this situation, the
defendant-plaintiff (woman) was right to file for divorce, and while the defendant-plaintiff’s divorce case should have
been accepted, its written rejection was incorrect and necessitated reversal….”
4-) Supreme Court 2nd HD- Decision: 2014/20613 (Conditions for Divorce Case Based on
Adultery (Cheating));
“…The case is a divorce claim based solely on the legal ground of adultery, which is based on the Turkish Civil Code.
Accordingly, the right to file a lawsuit lapses six months after the spouse with the right to file a lawsuit learns of the
grounds for divorce, and in any case, five years after the act of adultery (TCC, Art. 161/2). It is understood that the
plaintiff husband learned that his wife had committed adultery with another man at the hearing of the Çanakkale High
Criminal Court, file number 2009/304, decision number 2010/134, dated 15.09.2009, and filed a divorce suit on the
grounds of adultery on 01.04.2010. Therefore, it is understood that the case was not filed within the six-month
limitation period stipulated by law. There is no dispute between the parties that the divorce suit was filed solely on the
ground of adultery (TCC, Art. 161). In this case, while the case should have been dismissed due to the limitation period,
the divorce decision as written is contrary to procedure and law and should not be overturned. “…it required…”
5-) Supreme Court 2nd HD – Decision: 2014/20335 (Divorce Case Due to the Disruption
of the Marriage Union);
“…In the events that caused the marriage to be shaken to its core, in addition to the defendant-counter-plaintiff (husband)
refusing to provide independent housing, remaining unresponsive to his family’s intervention in the marriage, committing
violence against his wife, and insulting her, it is understood that, as the court has also accepted, the plaintiff-counter
defendant (woman) also insulted her wife, failed to fulfill her marital duties, and cursed her mother-in-law. Given this situation,
it is understood that the plaintiff-counter-defendant (woman) was at least slightly at fault in the events that led to the divorce,
and that there was no longer any benefit worthy of protection for the plaintiff-counter-defendant (woman) in the continuation
of the marriage. Therefore, the conditions of the Turkish Civil Code for the husband’s lawsuit were met. Therefore, instead of
accepting the defendant-counter-plaintiff (husband)’s lawsuit and granting a divorce (Article 166/2), the dismissal of the
husband’s lawsuit on insufficient grounds was not found to be correct…”
The Importance of Legal Support
Divorce cases require technical knowledge, a thorough understanding of the law, and in-depth expertise in
judicial practices. While the legal provisions are clear, each case has its own unique circumstances, and even
a small mistake can lead to a loss of rights. Therefore, working with an experienced attorney from the
beginning of the process is crucial to determining the right strategy, protecting your rights, and achieving
the swiftest resolution.
It’s important to remember that every step taken during the litigation process has legal and financial implications.
A professional lawyer will guide you not only in preparing the petition but also in gathering evidence,
representing the court, negotiating, and pursuing potential alternative solutions.
In order not to risk your rights and to manage the process safely, it is recommended that you consult a specialist lawyer.