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Legal grounds for dissolution of marriage are divided into two groups: special and general. Sections 161 to 166 of the Turkish Civil Law define those legal grounds as follows: the special legal grounds are adultery, deliberate attempt to kill, maltreatment, humiliating behavior, committing a crime, unreasonable behavior, desertion, mental disease; the general legal grounds are incompatibility, coming to a mutual agreement on divorce, and living apart for three years after an application for dissolution of marriage has been denied by the court.
Marriage will not be dissolved upon filing of the decision made by only one of the spouses. Marriage will not be dissolved unless the spouse against whom such application has been filed is proven to have been faulty. Apart from such fault, marriage can only be dissolved upon an application by the couple for divorce under mutual agreement. The court will not dissolve the marriage unless both spouses are present in person at the hearing. If the application is based on adultery, presentation of written affidavits will not be considered sufficient, the judge will hear the couple’s individual verbal statements before the court.
Divorce on the grounds of irretrievable breakdown of marriage
Section 165 of the Turkish Civil Law defines irretrievable breakdown of marriage as a general legal ground for divorce. If the marriage has broken down in an irretrievable way so that the spouses cannot be expected to continue their marriage, any of them will be entitled to file a lawsuit for divorce. In case of such lawsuit, if the petitioner’s fault is more severe, the respondent will be entitled to object the lawsuit. If the right in question is misused, the judge might dissolve the marriage if it is not worth to be saved for the respondent and the children. If the marriage has lasted at least one year and both partners apply in agreement for a divorce or one of them agrees the other partner’s application for a divorce, it will be considered that the marriage irretrievably broke down. In this case the judge will hear the partners in person before adjudging to dissolve the marriage. The judge can amend the divorce agreement to protect certain interests of the partners and their children.
If the judge denies such application for a divorce due to any reason but the partners live apart due to any reason for three years after the denial order in question became final, it will be considered that the marriage irretrievably broke down, and the judge will dissolve it upon an application by one of the partners.
Divorce on the grounds of adultery
Section 16 of the Turkish Civil Law orders that if one of the spouses commits adultery, the other spouse will be entitled to file a lawsuit for dissolution of their marriage. Adultery is defined as voluntary sexual intercourse between one of the spouses and a third party. If a married woman has had sexual intercourse with a man not her husband, or a married man has had sexual intercourse with a woman not his wife, the court will consider that adultery has been committed. Sexual intercourse between two people of the same gender will not be considered adultery. The husband or the wife must file a lawsuit for dissolution of their marriage within six months after discovering the reason of such filing, or within five years after such adultery has been committed, otherwise their right to file such lawsuit will expire. If such adultery has been committed once for all, the date on which it has been committed will count as the commencement of the above mentioned legal period of application. If such adultery has been committed several times, the date on which the adultery has been forgone will count as the commencement of the legal period of application. If the other spouse pardons such adultery, his/her right to file such lawsuit will expire. Such pardoning can be declared in verbal or written form.
Deliberate attempt to kill or maltreatment
Section 162 of the Turkish Civil Law orders that if any of the spouses deliberately attempts to kill the other, maltreats the other, or severely humiliates the other, the other spouse will be entitled to file a lawsuit for dissolution of their marriage. The first of these legal grounds is defined as a malicious attempt by one of the spouses to kill the other. If one of the spouses acts in a way to mean to kill the other, this legal ground will be considered to have happened. The second of these legal grounds is maltreatment of one of the spouses by the other. It includes beating the other spouse in a ruthless way, keeping on locking him/her in a room, tying his/her feet or hands, or leaving him/her hungry. The difference between the attempt to kill and maltreatment is that the latter is not meant to kill the other spouse or to encourage him/her to commit suicide. The third of these legal grounds is severe humiliation of one of the spouses by the other. It is defined as acting in a way dishonoring the other spouse, including throwing the other out of the family house or insulting the other. Such actions can be declared in verbal or written form to the court. All of these legal grounds are subject to the time-bar and forgiveness rules stipulated in Section 161.
Committing a crime or unreasonable behavior
Section 163 of the Turkish Civil Law defines the legal grounds of committing a crime or unreasonable behavior. It orders that “If one of the spouses commits a humiliating crime or unreasonable behavior and the other spouse can no longer be expected to continue to live together with the faulty spouse, the other spouse will be entitled to file a lawsuit for dissolution of their marriage. The said section defines the term “humiliating crime” as minor disgraceful crime. Section 76(2) of the Constitution as amended in 1982 defines the term “disgraceful crime” as misappropriation, embezzlement, corruption, bribery, theft, burglary, swindle, forgery, breach of confidence, and fraudulent bankruptcy. Applications for dissolution of marriage on the grounds of any of the disgraceful crimes defined above will not be subject to the time-bar rules stipulated in the Civil Law. The term “unreasonable behavior” is defined as a way of life disrespecting the morality, dignity, honor or self-respect principle of the society. Such crime or unreasonable behavior might have been committed before the parties got married. However, such action will not be considered a legal ground for dissolution of marriage unless it has been committed while the parties are married. If such action has been committed and has made the marriage intolerable for the other spouse, it will be considered a legal ground for divorce.
Divorce on the grounds of desertion
Section 164 of the Turkish Civil Law orders that if one of the spouses has deserted the other in order to refrain from his/her matrimonial obligations or due to an unjustified reason and has not come back for minimum six months, the separation is still going on, and the legal notice sent by the court to the deserter spouse upon an application by the other spouse remains unanswered, the other spouse will be entitled to file a lawsuit for divorce. The term ‘desertion” is defined as termination of the spouses’ union. A spouse’s leaving of the other spouse to serve conscription-based military service, to serve time of imprisonment, sickness, business trip or for other similar reasons will not be considered desertion. The other spouse will be entitled to apply to the court for serving of a legal notice on the deserter spouse after six months elapsed as from the date of desertion. The said legal notice will invite the deserter spouse to come back and notify the sanctions to be enforced if he/she refuses to come back. This legal notice will ask the deserter spouse to come back within two months. If the deserter spouse does not come back within said legal period, the other spouse will be entitled to serve a second legal notice on the deserter spouse, provided that such second legal notice can only be served after six months (including the period of two months granted to the deserter spouse to come back) have elapsed from the date of the first legal notice. If the deserter spouse is abroad, this legal notice must be sent to his/her address abroad.
Divorce on the grounds of mental disease
Section 165 of the Turkish Civil Law orders that if one of the spouses suffers a mental disease, the marriage becomes intolerable to the other spouse due to such disease, and the medical committee of a public hospital issues a report to confirm that the said mental disease is incurable, the other spouse will be entitled to file a lawsuit for divorce. This does not mean that every mental disease will be considered a special legal ground for divorce, but only such incurable ones as schizophrenia or paranoia fall in this category. The burden of proof for such intolerability remains with the suing party i.e. petitioner.
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