Contested Divorce Proceedings
What is a contested divorce? A contested divorce action is brought when one spouse seeks to end the marriage by relying on one or more specific or general grounds for divorce.
What Are the Grounds for a Contested Divorce?
Under the Turkish Civil Code No. 4721, the grounds are divided into specific and general grounds.
Specific Grounds for Divorce
1. Adultery
Article 161 recognises adultery as a specific ground for divorce. An action based on adultery requires sexual relations between one spouse and another person. Adultery may be proved by any lawful evidence, and strong and convincing circumstantial evidence may be sufficient. The action must be filed within six months from the date on which the innocent spouse learns of the adultery and, in any event, within five years of the act. The right to sue is lost if the innocent spouse forgives the other spouse.
2. Attempt on Life, Severe Ill-Treatment, or Degrading Conduct
An attempt on life includes conduct such as trying to kill a spouse or encouraging that spouse to commit suicide. Severe ill-treatment or degrading conduct includes physical or psychological cruelty, deprivation of food, unlawful confinement, assault, insults, and threats. The action must be filed within six months after learning of the conduct and, in any event, within five years after it occurred. Forgiveness ends the right to sue on this ground.
3. Commission of a Crime and a Dishonourable Lifestyle
Under Article 163, a spouse may seek a divorce if the other spouse commits a humiliating offence or leads a dishonourable life and continued cohabitation cannot reasonably be expected. Whether an offence is sufficiently humiliating depends on its nature and circumstances. A dishonourable lifestyle means persistent conduct that is incompatible with generally accepted standards of honour and dignity. In either case, the conduct must make married life intolerable for the other spouse.
4. Desertion
Article 164 applies where one spouse leaves the other in order to avoid marital obligations or fails to return to the matrimonial home without justification. A spouse who forces the other to leave or unjustifiably prevents the other from returning is also regarded as the deserting spouse.
- The spouses’ common life must have ended.
- The desertion must have continued for at least six months.
- After four months have passed, the entitled spouse must obtain a formal warning from a judge or notary requiring the deserting spouse to return within two months.
- The divorce action may be filed if the spouse does not return within that two-month period.
5. Mental Illness
Under Article 165, a spouse may seek a divorce if the other spouse has a mental illness that makes married life intolerable and an official medical board determines that recovery is not possible. The illness must have arisen after the marriage; a pre-existing condition may instead concern the validity of the marriage. The existence of the illness alone is not enough—it must make common life intolerable.
General Grounds for Divorce
1. Irretrievable Breakdown of the Marriage
Article 166 permits either spouse to seek a divorce when the marriage has broken down so seriously that the spouses cannot reasonably be expected to continue living together.
- The conflict must be serious and must fundamentally affect the marriage.
- It must make continuation of the common life intolerable.
- The spouse bringing the action should not be more at fault than the other spouse. The less-faulty spouse may object, although an objection that constitutes an abuse of rights may be rejected.
2. Uncontested Divorce
For details, please see our article entitled “Uncontested Divorce Proceedings.”
3. Failure to Re-establish Married Life
Under Article 166(4), if an earlier divorce action has been dismissed, three years have passed since that judgment became final, and the spouses have not re-established their common life, the marriage is regarded as having irretrievably broken down and either spouse may seek a divorce.
- There must be an earlier divorce action that was dismissed.
- Three years must have passed since the dismissal became final.
- The spouses must not have re-established their common life.
- The spouse found at fault in the earlier action may also bring this action.
Which Court Has Jurisdiction?
A contested divorce action is filed with the Family Court at the place where the spouses have resided together during the preceding six months. Where no Family Court exists, the Civil Court of First Instance hears the case in its capacity as a Family Court.
What Are the Possible Legal Outcomes?
Dismissal: The action may be dismissed if the asserted ground is not proved or if the applicable legal requirements are not met. The consequences of a dismissal, including any statutory waiting period, should be evaluated with legal advice.
Separation: A spouse may request a separation order instead of divorce. In a divorce action, the court may also order separation where it considers that married life may be re-established.
Divorce: If the ground is proved and there is no reasonable prospect of restoring the common life, the court may grant a divorce. Once the decision becomes final, the marriage legally ends. Please contact us using the details on our contact page for information about our legal services.