Divorce Proceedings

To file an uncontested or contested divorce lawsuit, one must first prepare a petition for divorce. You should then submit this petition to the courthouse where the competent Family Court is located. After the necessary court fees and expenses are paid, the file is sent to the competent court. If the petition contains the required elements, it will be served to the defendant, and the lawsuit process will commence.

To file a divorce lawsuit, documents such as the petition for divorce, identification, receipts for the payment of necessary court fees and expenses, evidence, etc., must be submitted to the court.

Compared to lengthy and arduous contested divorce lawsuits, an uncontested divorce lawsuit allows parties to reach the desired outcome in a shorter period. In an uncontested divorce lawsuit, the will and intentions of the spouses are paramount. Spouses can pursue an uncontested divorce by judicial decree after one year of marriage. Even if the marital union has not been fundamentally shaken, it is deemed to have been fundamentally shaken if there is a joint application and the lawsuit is accepted.

Contested divorce is a divorce lawsuit filed unilaterally by one of the parties when they cannot agree on the terms of divorce. A contested divorce lawsuit can be filed based on both specific and general grounds for divorce. If the existence of the specific grounds for divorce mentioned above is proven, the judge will issue a divorce decree. The plaintiff must only prove the specific ground for divorce. The plaintiff can base the divorce lawsuit on both specific and general grounds. In this case, the court must rule on both claims.

The grounds for divorce are exhaustively enumerated in the law. In Turkish Law, grounds for divorce are classified as general grounds and specific grounds. Specific grounds for divorce are: adultery, attempt on life, maltreatment and gravely insulting behavior, commission of a disgraceful crime and leading a dishonorable life, desertion, and mental illness. There are three types of general grounds for divorce: first, the marital union being fundamentally shaken; second, the agreement of the spouses; and third, the impossibility of re-establishing common life.

1) Divorce on Grounds of Adultery

Adultery is the act of one spouse engaging in sexual intercourse with someone other than their spouse during the continuation of the marital union. Adultery is a specific ground for divorce. The Court of Cassation presumes that the marital union is deeply and irreparably shaken due to adultery. The fact that adultery occurred due to a momentary weakness, the spouse's indifference, coldness, or failure to fulfill marital obligations does not change the outcome. Therefore, it is not possible to argue that adultery will not recur to seek the dismissal of the lawsuit.

A divorce lawsuit based on adultery must be filed within six months from the date of learning about the adultery and, in any case, within five years from the date the act of adultery was committed. Failure to file the lawsuit within these periods results in the loss of the right to sue. However, even if the periods have passed, a divorce lawsuit can be filed on the grounds that the marital union has been fundamentally shaken, provided that the adulterous spouse has not been forgiven. The right to sue of a person who forgives their adulterous spouse is extinguished with the forgiveness. Forgiveness can be explicit or implied. If a divorce lawsuit has been filed on the grounds of adultery, withdrawing from the lawsuit constitutes forgiveness.

2) Divorce on Grounds of Attempt on Life, Maltreatment, or Gravely Insulting Behavior

Attempt on life refers to actions taken by one spouse with the intent to kill the other. The nature of the means used to carry out these actions, whether they are capable of causing the spouse's death or not, is irrelevant. For instance, an attempt on life exists if a spouse shoots at the other with a pistol but misses, or if poison is put in the spouse's food but the spouse does not eat it. Even inciting or assisting a spouse to commit suicide is considered within the scope of attempt on life.

Maltreatment refers to actions taken by one spouse against the other that harm or endanger their physical or psychological health. In the presence of such situations, the unbearableness of common life is not investigated. The judge has broad discretion in determining whether an act constitutes maltreatment. For a divorce lawsuit to be filed based on maltreatment, the spouse who committed the act must be at fault. That is, a divorce lawsuit cannot be filed based on the actions of a spouse who is mentally ill or lacks discernment.

Gravely insulting behavior refers to acts and behaviors committed by one spouse that infringe upon the personal rights of the other spouse. The gravely insulting behavior must be severe. Whether an act is gravely insulting in nature is a matter for the judge's discretion.

The right to file a divorce lawsuit on the grounds of attempt on life, maltreatment, or gravely insulting behavior is extinguished after 6 months from the date of learning about these behaviors and, in any case, after 5 years. The prescribed periods are preclusive periods.

3) Divorce on Grounds of Commission of a Disgraceful Crime and Leading a Dishonorable Life

A disgraceful crime refers to shameful and ignominious offenses. Crimes such as embezzlement, fraud, malversation, fraudulent bankruptcy, and theft are considered ignominious crimes. If one of these crimes is committed during the continuation of the marital union, the other spouse can always file a divorce lawsuit based on this ground. Even if there is forgiveness, a divorce lawsuit can be filed. If a disgraceful crime was committed before marriage, and the other spouse was unaware of it, that spouse may request the annulment of the marriage based on error or deceit, if the conditions are met.

For leading a dishonorable life to be a ground for divorce, it must involve behavior that is incompatible with societal values and reprehensible by society. Additionally, these behaviors must be continuous. Examples of leading a dishonorable life include drug trafficking, gambling, and operating a brothel. There is no time limit for leading a dishonorable life.

For both leading a dishonorable life and committing a disgraceful crime to be grounds for divorce, common life must have become unbearable. For example, neither of two spouses who are both drug addicts can claim that the marriage has become unbearable for them and file a divorce lawsuit.

4) Divorce on Grounds of Desertion

Desertion is when one spouse, with the intent to avoid the responsibilities imposed by the marital bond, voluntarily and continuously abandons common life and fails to return without justification. Separation from the common residence due to military service, imprisonment, or work-related reasons is not considered desertion. If one spouse is expelled from the common residence, the expelling spouse is considered to have deserted. Certain conditions are stipulated for leaving the home with the intent to end common life to be considered desertion. First, the deserted spouse must have sent a notice to the deserting spouse to "return to the common residence within two months." The notice must also clearly state the consequences of not returning to the common residence. Furthermore, at least 4 months must have passed since the desertion occurred before a notice can be issued. If the deserting spouse does not return to the family residence after all these periods have passed, a divorce lawsuit based on desertion can be filed.

5) Divorce on Grounds of Mental Illness

For a divorce to be decreed on the grounds of mental illness, the marriage must have become unbearable for the other spouse. This mental illness must be determined to be incurable by a medical board report. There is no preclusive period for filing a divorce lawsuit on the grounds of mental illness.

6) General Grounds for Divorce

Deep disagreements and severe incompatibility arising from the relationship between spouses can be cited as grounds for divorce. In general grounds for divorce, the fault of the opposing party must be proven. We can categorize general grounds for divorce under 3 headings:

• Marital Union Fundamentally Shaken: The event causing the shaking and the existence of the fundamental shaking must be proven by the plaintiff. This event must have irreparably shaken the marital union and made common life unbearable for the spouses.
• Agreement of Spouses: Uncontested divorce is not based on the fault of the parties. For an uncontested divorce, there must have been at least 1 year of marriage. The spouses must apply jointly, or one spouse's lawsuit must be accepted by the other spouse. In this case, the marital union is deemed to have been fundamentally shaken. The judge personally hears the spouses and examines whether the parties acted of their free will and their agreement regarding the economic consequences of the divorce and, if any, the situation of the children. The judge may make necessary adjustments. If the parties accept these adjustments, an uncontested divorce is decreed.
• Impossibility of Re-establishing Common Life: If a lawsuit previously filed on any of the grounds for divorce has been rejected, and at least 3 years have passed since this decision became final, and common life has not been re-established, a divorce lawsuit based on the impossibility of re-establishing common life can be filed. According to the practices of the Court of Cassation, a divorce lawsuit can also be filed after three years have passed since the waiver of a divorce lawsuit.

Which Court Hears Divorce Cases?

In divorce cases, the competent courts are the Family Courts. However, if there is no Family Court in that locality, the Civil Courts of First Instance in that area hear the case in their capacity as Family Courts.

Where to File a Divorce Lawsuit?

A divorce lawsuit is filed in the court of the place where the spouses last resided together for at least six months before the lawsuit. If the spouse filing the lawsuit has obtained a separation decree from the court, they can also file the lawsuit in the court of their own residence or the other spouse's residence. The parties can choose one of the two competent courts mentioned to file their lawsuit.

Alimony/Maintenance in Divorce Cases

In a divorce lawsuit, maintenance can be requested for one of the spouses or the child to sustain their life. The following types of maintenance can be requested:

• Provisional Maintenance (Interim Alimony): This is maintenance decreed by the court to ensure the livelihood of an economically disadvantaged spouse or children under 18 during the divorce proceedings, valid until the end of the lawsuit. A financially well-off spouse cannot request provisional maintenance for themselves. In this case, they can only request provisional maintenance for the children if the children reside with them.
• Child Support: With the finalization of the divorce decree, provisional maintenance ceases. The court may order the spouse who is not granted custody to pay child support to cover the child's needs.
• Poverty Alimony (Spousal Maintenance): This is maintenance decreed in favor of a spouse who will fall into poverty upon the termination of the marital union. Poverty alimony is decreed without distinction of gender. The party in whose favor poverty alimony is decreed must be less at fault than the other party.

Who is Granted Custody in Uncontested Divorce?

Even in an uncontested divorce, the judge prioritizes the child's best interest above all else. That is, the judge is not strictly bound by the divorce protocol arranged between the parties. A party who believes that the decision regarding custody is unlawful can file a lawsuit for a change of custody.

How is Property Divided in Divorce Cases?

The date of liquidation of the matrimonial property regime is the date the divorce lawsuit was filed. The Turkish Civil Code stipulates the regime of participation in acquired property between married couples. Therefore, when dividing property in a divorce, assets acquired after marriage should, as a rule, be divided equally.

Can a Divorce Lawsuit be Filed via E-Devlet?

To file a divorce lawsuit via E-Devlet (e-Government portal), you must have an e-signature. If you do not have an e-signature, you cannot file a lawsuit online.

When is a Divorce Decree Registered in the Civil Registry?

After a decision is rendered in a divorce lawsuit, the reasoned decision is written within 30 days. The reasoned decision is served to the divorced couple within approximately two weeks. If there is no objection to the divorce decree within 14 days, the court sends the necessary writ to the Population Directorate, and the civil records are corrected.

What Evidence is Required for a Divorce Lawsuit?

The evidence generally used to prove a divorce lawsuit includes: witness testimonies, phone records, photographs, social media correspondence and posts, flight tickets, hotel records, etc. Any legal evidence can be freely presented in a divorce lawsuit.

What is an Uncontested Divorce Protocol?

An uncontested divorce protocol is a type of agreement that regulates the consequences of divorce, mutually agreed upon by both spouses. The judge must approve the financial consequences of this protocol made by the parties and the arrangements regarding the children's situation. Furthermore, the judge personally hears the parties, so the parties must be present in court in person.

Can I File a Divorce Lawsuit Without a Lawyer?

As a rule, all lawsuits can be filed without a lawyer. However, a mistake you make due to ignorance or misinformation can change the course of the lawsuit. For this reason, we recommend consulting an expert divorce lawyer.

What Happens if the Defendant Does Not Appear in a Contested Divorce?

If the defendant in a divorce lawsuit does not appear at the hearing or does not have legal representation, the lawsuit continues in the defendant's absence.

What Questions Are Asked to Witnesses in a Divorce Lawsuit?

After identifying the witnesses, they are asked about their relationship with the parties and which events they witnessed during the marriage that are subject to the lawsuit. Additionally, witnesses may be asked by the court for their personal opinions as external observers regarding whether the marital union can continue.

What Are Divorce Lawyer Fees?

The İzmir Bar Association Association publishes an advisory fee schedule every January. For 2021, the fee determined for a contested divorce lawsuit is the minimum fee determined by the Minimum Attorneyship Wage Tariff (AAÜT), not less than 15% of the case value. While attorney fees are freely determined by mutual agreement of the parties, we can say that they are approximately in this range.

What is the Fee for an Uncontested Divorce Lawyer?

The İzmir Bar Association Association's 2021 advisory fee schedule for an uncontested divorce lawsuit is the minimum fee determined by the Minimum Attorneyship Wage Tariff (AAÜT). These advisory fee schedules can vary depending on the lawyer's expertise, the status of the case, and the workload.

For further questions regarding divorce proceedings that you could not find answers to in our article,

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy