ENTRANCE
Family law is a branch of law that directly affects the social and economic lives of individuals. In this context,
separation lawsuits encompass lawsuits filed to temporarily or permanently terminate a marriage or to ensure
the parties live separately. Within the framework of the Turkish Civil Code (TCC), the fundamental principles of
marriage are regulated by the provisions on divorce and separation, and separation lawsuits arise from these
provisions.
Its legal function is to temporarily end the marriage union between the parties and to protect rights such as
property, children and alimony.
1-) Definition and Legal Nature of the Separation Case
A separation case is a type of case that allows spouses to begin living separately through a court order when it is no
longer possible for them to continue living together. The separation provisions regulated in Article 166 and following the
Civil Code of Civil Procedure (TCC) set forth the necessary conditions for the spouses to fundamentally break their
marital union and begin living temporarily apart.
Legal nature:Separation proceedings are a preliminary stage or alternative to divorce proceedings.
Effect on substantive law:A decision to separate does not end a marriage; however, it ensures the protection of rights such as
property division, child custody, and alimony.
Procedural law dimension:The separation case is filed in the family court and is conducted in accordance with the TMK.
2-) Purposes of the Separation Case
The main purposes of separation cases are:- Preservation or temporary suspension of the marriage union:- It allows spouses to live separately without completely ending their marriage.
Protection of the rights of the parties and children:- Issues such as alimony, child care and education, and property division are secured by court decision.
Pre-divorce solution:
A separation case provides time for the parties to come together and solve their problems or save the
marriage before the divorce decision.
3-) Types of Separation Cases
Separation cases are divided into different types according to their cause and nature:
Separation by Judge’s Decision (TCC Art. 166):- If the parties experience problems to the extent that they shake the foundations of the marriage union, they are allowed to live separately by
decision of the judge.
- This type of separation is an example of divorce cases and is often temporary or trial in nature.
Separation at the Request of One of the Spouses:- According to the Turkish Civil Code, when one of the spouses does not want to continue the marriage, they can apply to the court and request
separation.
Separation by mutual consent:- The parties may decide to live separately within the framework of the agreement they have made between themselves.
In this case, the court checks the validity of the agreement and whether the rights of the parties are protected.
4-) Conditions of the Separation Case
For a separation case to be valid, certain conditions must be met:
The Foundation of the Marriage Union is Shaken:- Disagreements between spouses must make the continuation of the marriage impossible.
Existence of Material and Spiritual Conditions:- Situations such as violence, ill-treatment or psychological pressure between spouses are evaluated by
the court.
Application Authority:
Only spouses within the marriage union can file a divorce case.
5-) Legal Consequences of the Separation Decision
Right to Alimony:- If the separated spouse does not have sufficient income to support himself/herself, he/she may request alimony or temporary alimony from the other spouse.
Property Regime:- The decision to separate does not terminate the property regime; however, it ensures the protection of financial rights.
Custody of Children:- The court may determine the responsibility for the care and education of children.
Effect on Divorce:- With the decision to separate, the spouses will have ample time to consider and reconsider the
divorce. This gives the parties the opportunity to save the marriage.
6-) Beginning and Ending of the Separation Period
The separation period begins when the decision to separate becomes final. The separation period ends when the period for which the decision was made
has elapsed since the decision to separate became final.
7-) Can a divorce case be filed on the grounds of abandonment after the separation decision is finalized?
To file for divorce, one spouse must sincerely invite the other to the shared residence to reestablish their
shared life, and the invited spouse must refuse to return to the shared residence, despite having no valid
excuse. However, in long-term de facto separations, neither spouse has the desire or will to continue living
together. Because there is no possibility of reestablishing their shared life, a divorce case based on
abandonment cannot be filed.
😎 Separation Case and Divorce
The institution of separation is regulated in Article 167 of the Turkish Civil Code. Spouses may request separation
instead of divorce if they so desire.
TMK 167
“The spouse who has the right to file for divorce may request a divorce or separation if he or she wishes.”- A decision for separation does not end the marriage; it merely suspends the joint life. A spouse who has the right to file
for divorce may also request separation. If a request for separation is made along with the divorce case, a divorce
cannot be granted. A decision for separation can also be granted along with the filed divorce case. If the judge in the
filed divorce case determines that the joint life can continue, they may order separation; this is at the judge’s discretion.
Separation cannot be requested in divorce cases filed under Articles 166/3-4 of the Turkish Civil Code; the judge has no
discretion.
9-) Separation Period
If a decision to separate is made, the period of separation will vary between one and three years. This period is regulated in Article 171
of the Civil Procedure Code.
10-) Beginning and Ending of the Separation Period
The separation period begins when the decision to separate becomes final. The separation period ends when the period for which the decision was made
has elapsed since the decision to separate became final.
11-) What are the differences between a divorce case and a separation case?
Separation and divorce are legal remedies available to couples experiencing marital problems; however, the
outcomes and objectives of these two types of cases differ. While a divorce case ends the marriage, a
separation case preserves the legal existence of the marriage. In a divorce case, the parties change their
marital status and legally end the marriage. In a separation case, the parties remain legally married but gain
the right to live separately. In a divorce, the parties largely lose their financial responsibilities to each other,
property is divided, and matters such as custody are resolved. In a separation case, the property regime
remains the same; the parties’ legal rights are protected, and rights over their children are maintained.
At the end of a divorce case, the parties have the right to marry other people, while in a separation case, the
parties are still considered married and therefore cannot remarry. While divorce permanently ends the
marriage, a separation case offers a temporary solution. A separation case gives the spouses the
opportunity to reevaluate their marriage, improve their relationship, or assess whether problems have
become persistent. Therefore, it is less disruptive than a divorce and provides the parties with an
opportunity to resolve their marital problems.
12-) What are the conditions for a separation case?
To file for separation, there must be serious incompatibility, disagreement, or circumstances that render
cohabitation impossible, demonstrating that the marital union has been fundamentally shaken. According to
Article 166 of the Turkish Civil Code, the incompatibility between the parties must have rendered the marital union
unsustainable. This incompatibility can include constant arguments, emotional disconnection, indifference,
financial hardship, and physical or emotional violence. The spouse who wishes to file for separation must prove to
the court these serious disagreements and problems within the marriage. The marriage does not require a
specific duration to file for separation; serious disagreements between the parties that could lead to divorce are
sufficient.
13-) Persons Who Can File a Separation Case
Both spouses who are experiencing serious problems within their marriage but do not wish to divorce can
file for separation. A separation case is an alternative for parties who are hesitant to divorce or who simply
do not want the marriage to end. Either party can request a separation order due to marital incompatibility.
Both spouses can file for separation if they believe the marriage has been fundamentally shaken and living
together is no longer sustainable. In this case, if the party filing the lawsuit wants the marriage to continue
but wants to resolve the issues by living separately, they can file for separation.
14-) Court of Jurisdiction in Separation Cases
Article 168 of the Turkish Civil Code states: “The competent court in divorce or separation cases 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 before the case.”
The court competent for a separation case is the family court where the parties reside or where they have lived
together for the past six months. If the parties live in different cities, the party filing the case may apply to the
court where they reside. In places where there is no family court, the court of first instance may apply.
The court has jurisdiction to hear the separation case.
15-) What are the consequences of the decision to separate?
A separation order, unlike a divorce order, does not terminate the marriage; the marriage continues legally.
However, the court allows the parties to live independently during the separation. With a separation order,
the parties’ rights and obligations arising from the marriage are preserved, but the obligation to live
together temporarily disappears. Because the marriage is legally valid, the property regime and legal rights
of the parties remain the same. During this period, the parties have the right to live at a different address,
and the court may make temporary custody arrangements for the children.
According to Article 172 of the Turkish Civil Code: “Separation automatically terminates upon expiration of the specified period.
If cohabitation has not been reestablished, either spouse may file for divorce. When determining the consequences of divorce,
the facts proven in the initial case and the circumstances that arose during the separation period are taken into account.”
CONCLUSION
Separation proceedings hold a significant place in Turkish Civil Law as an institution aimed at
preserving the marital union. While divorce has more definitive and permanent consequences,
separation proceedings are temporary, providing spouses with the opportunity to reevaluate and
consider whether to continue or end their marriage. In this respect, separation serves the protection of
both individuals and the family.
The separation order, regulated under the Turkish Civil Code, is preferred in cases where the grounds for divorce
have been met but the complete dissolution of the marriage is not yet deemed appropriate. If the court, taking
into account the social, psychological, and economic circumstances of the parties, deems separation to offer the
potential to save the marriage, it may order separation instead of divorce. This reflects a flexible and protective
approach that grants the judge discretion.
The period of separation is set at a minimum of one and a maximum of three years. After this period, the
parties may reunite and resume their marriage. However, if the parties cannot reestablish their marital
union within this period, a divorce case can be filed with stronger grounds. Therefore, while a separation
decision does not legally end a marriage, it can often serve as a step in the process leading to divorce.
A separation case differs from a divorce case in both its requirements and its consequences. This
case aims to temporarily halt the marriage, not to end it. However, in practice, separation is not a
preferred option, and divorce proceedings are often filed directly. Reasons for this include social
perceptions, the length of the process, and the fact that separation does not offer a definitive
solution.
In conclusion, a separation case is an institution that requires careful consideration within family law. Providing the
parties with an opportunity to reflect and regroup, rather than ending the marriage entirely, is consistent with the law’s
protective function.
COURT OF APPEALS DECISIONS REGARDING THE SEPARATION CASE
1-) Supreme Court of Appeals 2nd Civil Chamber 2019/7178 E, 2019/11166 K. (Filing a Lawsuit
Despite the Re-establishment of Joint Life);
“…The case is a divorce case filed based on the legal grounds of failure to re-establish common life despite the
expiration of the separation period stipulated in Article 172/2 of the Turkish Civil Code. From the investigation and
evidence collected, it is understood that the parties reunited and lived together as husband and wife after the
expiration of the separation period determined by the court. Considering this situation, the case should have been
dismissed, but the issuance of a written judgment was deemed inappropriate. The appealed judgment is REVERSED for
the reason stated above…”
2-) Court of Cassation 2nd Civil Chamber 2019/3990 E., 2019/8747 K. (Filing a Separation Suit
Against a Divorce Suit);
“…Against the divorce suit filed by the plaintiff-counter-defendant man based on the legal ground of
dissolution of the marriage union (TCC Art. 166/1), the defendant-counter-plaintiff woman filed a counter
suit based on separation (TCC Art. 170) on March 14, 2013, and paid the fee. The court ruled on the man’s
case, but no judgment was rendered on the woman’s counter-claim for separation. In the case of a cross
claim, the court must render a separate judgment on each case. For the reasons explained, while a positive
or negative judgment should have been rendered on the defendant-counter-plaintiff woman’s separation
suit, the failure to consider this aspect was contrary to procedure and law and necessitated reversal (TCC
Art. 297/2)…”
3-) Supreme Court of Appeals 2nd Civil Chamber E. 2015/20551 K. 2016/14209 T. 31.10.2016
(did not find it appropriate to decide on separation, although divorce should have been
decided);
“…From the evidence gathered, as the court acknowledges, it is understood that the defendant exhibits an inconsistent
personality, experiences momentary outbursts of anger, and therefore frightens the plaintiff. He does not allow the
plaintiff to see his family and friends. He is abusive and insults the plaintiff. He responds to the plaintiff’s request for a
child with the words, ‘I have a child, I can’t spend money.’ The plaintiff provides the entire household, even paying the
defendant’s shop rent at times, and lacks a regular income to support the household. Accordingly, as a result of the
defendant’s flawed attitudes and behaviors, both described and realized, the marital union has been fundamentally
shaken to a degree that makes it unthinkable for the spouses to continue their life together. It has also not been
proven that there is a possibility of reestablishing their life together (TCC Art. 166/1). In light of these explanations,
while a divorce decision should have been made, the decision to separate based on insufficient justification was found
to be incorrect and necessitates reversal…”
4-) Supreme Court of Appeals 2nd Civil Chamber 2023/4442 E., 2024/3634 K., 21.05.2024 T.;
“…from the scope of the file and the evidence collected, the woman stated in her petition dated 16.12.2021 that she
loved her husband very much and did not want a divorce. The woman’s attorney also stated in his petition dated
19.12.2021 that the woman loved her husband and did not want a divorce, that she still loved her husband as much as
the first day, and that she wanted to save her marriage. Based on this situation, it should be accepted that the woman
has forgiven or at least tolerated the previous events that were attributed to the man as a fault. The forgiven or
tolerated behaviors cannot be attributed as a fault. This being the case, the woman is completely at fault according to
the faults determined by the Court of First Instance and the actual faults. It is inappropriate to accept the man as
gravely at fault in the events that led to the written divorce as a result of an erroneous evaluation without considering
this issue, and to accept the consolidated divorce case of the woman who is completely at fault when it should have
been rejected. Furthermore, it should have been ruled that temporary alimony should have been awarded in favor of
the woman from the date the divorce case was filed until the date the divorce decision became final, in accordance with
Article 169 of Law No. 4721. “On the grounds that the decision to lift the temporary alimony was inappropriate, that the
woman’s unwillingness to divorce was not sufficient to grant a separation order, that the possibility of re-establishing
the joint life could not be demonstrated within the scope of the file, that the marital union was shaken to its
foundations in a way that it could not be re-established, and that it was appropriate for the Court of First Instance not
to grant a separation order…”
(…)
For the reasons explained;
“The decision of the Regional Court of Justice, which is being appealed, is APPROVED in accordance with the first paragraph of
Article 370 of Law No. 6100…”
5-) Supreme Court of Appeals 2nd Civil Chamber, 2012/5709 E, 2013/6875 K, 14.03.2013 T;
“…It is understood from the investigation and the evidence collected that the defendant left the shared residence at the end of
2008 without cause, did not contribute to the expenses of the house, did not attend to his wife’s treatment, and thus failed to
fulfill his marital duties. In this case, there is a proven incompatibility between the parties to the extent that it would
fundamentally shake their shared life and prevent the continuation of the union. The grounds for divorce in Article 166/1 of
the Turkish Civil Code have been proven. Therefore, while a decision should have been made for a separation period
determined between the lower and upper limits specified in the Law (Article 171/1 of the Turkish Civil Code) within the
framework of the request, the rejection of the request was not found appropriate…”
The Importance of Legal Support
Separation cases require technical knowledge, legislative expertise, 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 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.