Divorce due to the foundation of the marriage union (severe disagreement)

The provisions regulating divorce due to the foundation of the marriage union are included in the 1st and 2nd paragraphs of Article 166 of the Turkish Civil Code No. 4721. The concept of "severe discord" is an expression used in the old Civil Code period, and the current legal terminology is "shaken of the foundation of the marriage union".

ARTICLE 166- "If the marital union is shaken to the extent that they are not expected to continue their common life, either spouse may file for divorce.

In the cases specified in the above paragraph, if the plaintiff's fault is more severe, the defendant has the right to object to the lawsuit filed. However, if this objection is an abuse of right and there is no benefit worth protecting for the defendant and the children in the continuation of the marriage, a divorce may be decided."

Some events and attitudes that shake the marriage union in the law (adultery, attempt on life, abandonment, very bad behavior, leading a dishonorable life, mental illness, degrading behavior, humiliating crime) has been determined as the special reason for divorce. In order to file a lawsuit based on one of the special grounds for divorce, the conditions required by law must be met. And only the events that the legislator has previously determined, as limited by the law, can be subject to litigation.

Just as the formula for every happy marriage is different, the events that shake the foundations of marriages that the spouses no longer want to continue and have become unbearable are different in every marriage. Therefore, it is not possible for the legislator to determine in advance all events that may be grounds for divorce. For this reason, in divorce cases, as a rule, the general reason for divorce is "shaking the foundation of the marriage union". Private grounds for divorce are exceptions to the rule.

In this article, we will discuss the characteristics, conditions, parties, subject and legal consequences of the "divorce case due to the foundation of the marital union", which is one of the types of contested divorce cases.

SHAKING THE FOUNDATION OF THE MARRIAGE UNION IS A RELATIVE REASON FOR DIVORCE

The reasons for divorce are classified as absolute and relative reasons for divorce in the doctrine. The reason why the marriage union is shaken from its foundations is a relative reason for divorce. The meaning of relativity is that proving the event that is claimed to be the reason for divorce and that allegedly shook the marriage to its foundations is not sufficient to make a divorce decision. It should be noted that it is also a necessary element that the continuation of the joint life has become no longer expected from the spouses. The judge has wide discretion in evaluating this situation.

In a divorce case based on absolute grounds, proving the alleged incident is sufficient for a divorce decision to be made. In other words, in a divorce case filed based on an absolute reason for divorce, it has been accepted that the spouses cannot be expected to continue their joint life.

For example, in a case filed on the basis of adultery, which is one of the absolute reasons for divorce, proving adultery is deemed sufficient for the divorce decision, that is, the judge decides on the divorce because he cannot exercise his discretion as to whether the spouses can continue their joint life.

In a case filed based on the foundations of the marital union being shaken, the judge has the discretion to decide whether the spouses can continue their joint life, in addition to proving the event that is cited as a reason for the divorce. According to the 3rd paragraph of Article 1 of the Civil Code, the judge makes use of the Supreme Court decisions and scientific opinions when making a decision.

SHAKING THE FOUNDATION OF THE MARRIAGE UNION

TMK Art. According to the provisions set out in Article 166, in order for a divorce decision to be made, the first condition is that the event cited as a reason for the divorce case has fundamentally shaken the marriage union. Since the dynamics of each marriage, the spouses' material and moral expectations from marriage, and their perspectives on marriage are different, naturally events that will shake the foundation of the marriage may be different in each marriage. For this reason, the legislature did not make a limited regulation stating that the events that fundamentally shake the marriage are as follows. However, if the extent of the disagreement between spouses is minor troubles or temporary problems that may occur in every marriage, these are not taken as basis for the decision. Depending on the concrete case, the judge evaluates whether the event cited as a reason for the lawsuit is an event that will shake the foundation of the marriage, taking into account the interests of the spouses and children and benefiting from the principled decisions of the Supreme Court.

The most common reasons for divorce in practice are; Physical violence, violation of the obligation of fidelity, lack of love, indifference, lack of communication, economic difficulties, problems with the spouses' families, different perspectives on life, etc. can be listed as follows.

COMMON LIFE HAS BECOME UNbearable

TMK Art. The second condition required by the law in order to grant a divorce decision according to the provisions regulated in Article 166 is that the joint life has become unbearable for one or both of the spouses due to the event that shook the marital union. As a relative reason for divorce, the existence of an event that shakes the marital union is not sufficient for a divorce decision. In addition, the existence of a situation in which the continuation of the joint life is not expected from the spouses is required. The judge has wide discretion in this matter. So much so that the judge judges whether the incompatibility between the spouses makes it impossible for them to continue their common life, whether the continuation of the marriage will benefit the spouses, children and society, and whether the spouses are spiritually disconnected from the institution of marriage.

REASONS THAT SHAKE THE MARRIAGE UNION TO THE FOUNDATION

In divorce cases, the facts cited as the reason that shakes the foundation of the marriage and makes the common life unbearable are very diverse. However, based on the decisions of the Supreme Court, we can list the reasons that are the most common in practice in divorce cases.

• Failure to fulfill union duties,
• Saying that you don't love your spouse,
• Beating the wife,
• Behaving in a way that violates trust,
• Continuous use of alcohol,
• Avoidance of sexual intercourse or lack of sexual adaptation,
• Mutual insults,
• Not preventing mother-in-law or father-in-law from mistreating their spouse,
• Fighting all the time,
• Frequently leaving the house or kicking out the spouse.

In divorce cases, the judge examines the specified events, collects evidence and information, and forms an opinion about whether the marriage union has been shaken to its core as a result of the reasons put forward. The soundness of this opinion depends on knowing the place and time of the events that caused the divorce, how they occurred, whose behavior is prioritized, and whether the words and behaviors of the other party are a result of anger or an ill-intentioned reaction.

CAN THE FAILURE SPOUSE FILE A FILE FOR DIVORCE?

Any spouse who believes that life together with his/her spouse has become unbearable due to severe incompatibility can file a divorce case based on the general reason for divorce.

TMK Art. As can be understood from the expression in Article 166/2, "If the plaintiff's fault is more serious, the defendant has the right to object to the lawsuit filed." As can be understood from the statement, the plaintiff does not have to be blameless in order to file a divorce case based on the foundation of the marital union being shaken.

However, if the plaintiff is more seriously at fault than the defendant, the defendant's right to object comes to the fore. In cases where the defendant is completely blameless and uses his right to object properly, it is not possible, as a rule, to obtain a divorce based solely on the plaintiff's own serious fault. However, if the defendant's objection is an abuse of right and there is no benefit worth protecting in the continuation of the marriage, a divorce may still be decided.

In cases where the plaintiff is less at fault or blameless in the events that give rise to discord and shake the marriage union, a divorce decision may be given if the existence of even a slight fault on the part of the defendant is established through proof. The fact that the parties are equally at fault does not prevent the decision to divorce.

In divorce cases, the fact of fault attributed to the defendant and the proof of this fact are very important issues that greatly affect the legal outcomes of the case and the demands for compensation and alimony, which are incidental to the divorce. If the course of the divorce case is not followed by an expert divorce lawyer, the already long contentious cases may take longer, the case may result in an unexpected outcome, and there may be a loss of rights in terms of alimony-compensation and custody requests.

We will explain later the impact of the fault rates of the plaintiff and the defendant on the material and moral compensation, alimony and custody issues that they can demand from each other in the divorce case.

RIGHT OF OBJECTION IN DIVORCE CASE

TMK Art. According to Article 166/2, "... if the plaintiff's fault is more severe, the defendant has the right to object to the lawsuit filed. However, if this objection is an abuse of right and there is no benefit worth protecting for the defendant and the children in the continuation of the marriage union, a divorce may be decided."

If the less faulty defendant spouse, against whom a divorce lawsuit has been filed due to the fact that the marriage union has been shaken to its core, wants to prevent the outcome of the case or wants the plaintiff's divorce request to be rejected, he/she uses his/her right to object by submitting a response petition within the legal period of two weeks from the date of receipt of the petition. In practice, there are cases where the defendant uses his right to object for reasons other than his desire to continue the marriage with sincere feelings. Undoubtedly, the end of marriages built with big dreams is often a psychologically exhausting process for spouses. If it is determined from the defendant's statements or behavior that he used his right of objection purely out of revenge and that he does not have a sincere intention to continue the marriage union, the judge may decide to divorce. The law grants the judge the authority to prevent abuse of rights in such cases.

"... even though the plaintiff husband is very at fault in the events that led to the divorce, it is understood that the defendant said to the plaintiff "...this is over, I don't want..." and thus avoided living together, and he has a slight fault in the divorce. His objection to the divorce case is an abuse of right." (Y2HD, 10.11.2004, 12119-13368)

MATERIAL AND MORAL COMPENSATION IN DIVORCE CASE

In Article 174 of the Turkish Civil Code,

"The faultless or less faulty party whose current or expected interests are damaged due to the divorce may request appropriate financial compensation from the faulty party.

The party whose personal rights were violated due to the events that led to the divorce may request the payment of an appropriate amount of money as non-pecuniary compensation from the other party who is at fault.

It is arranged as

.

As can be understood from the text of the law, in order for pecuniary and non-pecuniary compensation to be awarded, the requesting party must have no fault in the events that led to the divorce or must be less at fault than the other party.

Pecuniary and non-pecuniary damages can be requested in a divorce case, or in a separate lawsuit filed within 1 year after the divorce decision is finalized.

Since the material and moral compensation requested in the divorce case will be considered as an accessory of the divorce, no additional fee is required. However, with the lawsuit to be filed later, a proportional fee must be paid based on the amount of compensation requested.

Pecuniary and moral compensation may be requested at the beginning or until the divorce decision is finalized.

In terms of material compensation, it may be decided to pay it in lump sum or in the form of revenue (instalments), depending on the requirements of the situation, whereas in terms of non-pecuniary compensation, it cannot be decided to be paid in the form of revenue.

POVERTY SUPPORT IN DIVORCE CASE

In Article 175 of the Turkish Civil Code,

"The party who will fall into poverty due to divorce may request alimony from the other party indefinitely, in proportion to his financial means, provided that his fault is not more severe.

The fault of the alimony obligor is not required."

It is arranged as

.

In a divorce case filed due to the foundations of the marital union being shaken, the party who will fall into poverty due to the divorce may request alimony from the other party, provided that the fault is not more severe.

Just like the request for compensation, alimony can be requested by making a written or verbal statement at the beginning or during the course of the case.

Since the alimony requested in the divorce case will be considered as an accessory or supplement to the divorce, no additional fee is required. However, a relative fee must be paid for the alimony requested in the lawsuit filed later. Alimony to be requested later in a separate lawsuit is subject to a 1-year statute of limitations.

When necessary, a request can be made to increase, decrease or completely eliminate alimony.

PRECAUTIONARY ALIMONY IN DIVORCE CASE

TMK Art. Precautionary alimony, regulated under the title of temporary measures in Article 169, is the temporary measures taken ex officio by the judge when a divorce case is filed, especially regarding the accommodation and livelihood of the spouses and the care and protection of the children, which are necessary during the course of the case.

Precautionary alimony can also be requested before filing for divorce, if certain conditions are met. You can get detailed information from our article titled MEASURY ALIMONY

However, it should be noted here that the basis for the provisional alimony awarded in the divorce case is Turkish Civil Code art. It is 169 and the judge can also evaluate it ex officio.

ALIGNMENT IN DIVORCE CASE

The payment made by the party who is not given custody of the child to the party who has custody, in accordance with the obligation to contribute to the expenses such as education, housing, health and nutrition, in accordance with his/her own means, is called participation alimony.

Participatory alimony can be requested during the divorce case, or it can be requested later in a separate lawsuit.

The amount of alimony is determined by taking into account the needs of the child and the economic situation of the parties.

A lawsuit can be filed to increase or decrease child support depending on the child's needs.

According to the civil law, the care of the child belongs to the mother and father until the child reaches adulthood. After the child becomes an adult, that is, 18 years old, child support is stopped. However, if the child's needs continue (he may continue to study at university), the adult child may request alimony through a lawsuit, as the care obligation of the mother and father will continue.

IF THE SPOUSE REQUESTING MATERIAL AND MORAL COMPENSATION AND POVERTY SUPPORT DUE TO DIVORCE IS GROSSLY FLAWLED, THEIR REQUESTS WILL BE REJECTED

 "In the cases filed on the grounds that the man behaved indifferently and coldly, insulted the woman, his parents also insulted the woman, beat the joint children, treated the woman coldly to her family, the woman behaved coldly to the man's family, was constantly on her phone, did not pay attention to the cleanliness of the house and behaved in a way that undermined trust by meeting with another person, the woman should be accepted as being seriously at fault, and it was not right to accept that the parties were equally at fault, the woman was deemed to be seriously at fault and her claims for alimony and compensation were rejected." (Y2HD, 2020/631 E. 2020/3444 K. 30.06.2020 T.)

" ... It is understood that the woman's behavior exceeded the level of trust-shattering and that it should be considered as infidelity. In addition to the man's accepted and actual faulty behavior by the court, it is understood that the defendant-plaintiff man did not provide a house with moral independence, remained silent to the intervention of his family, claimed that the woman was possessed by a demon and was taken to the teachers, was not taken to the hospital, and lastly called her family and said, "Your daughter is dead." In the face of this situation, it must be accepted that the man is seriously at fault and the woman is slightly at fault.

It has been understood that the defendant-plaintiff woman who requested compensation for the events that caused the marital union to be shaken was not seriously or equally at fault, these events constituted an attack on the woman's personal rights, and as a result of the divorce, this spouse lost the financial support of at least the other. In that case, while the court should have awarded an appropriate amount of material and moral compensation for the benefit of the woman, taking into account the social and economic situations of the parties, the gravity of the act that is the basis for compensation, and the rules of equity, making a decision in writing as a result of the erroneous determination of fault was not deemed appropriate and required reversal." (Y2HD. E. 2019/6088 K. 2020/369 T. 27.1.2020)

CAN A DIVORCE CASE BE FILED WITH DELAY?

It is possible to file a delayed lawsuit in the same divorce case based on two separate reasons. Thus, more than one claim is made in a single case. Since there is a primary-secondary relationship between legal reasons, the judge first examines the primary request and cannot deny the secondary request unless he rejects the primary request. What needs to be taken into consideration is that a legal or economic connection has been established between the requests.

"The plaintiff woman firstly requested a divorce based on the grounds of adultery and, if not accepted, the marital union would be undermined. Adultery is an absolute cause for divorce. If the fact of adultery occurs, the reason for divorce is deemed to have occurred. If the legal reason for adultery, or in the absence of the marital union, is gradually relied upon; If adultery is proven, a divorce decision must be made for this reason. In such a case, it is no longer considered whether the conditions of the general reason for divorce are met and it is not necessary to create a separate provision regarding this." (Y2HD. , E. 2019/6633 K. 2020/443 T. 28.1.2020)

CONVERTING A CONTESTIOUS DIVORCE CASE INTO AN AGREEMENT

A contested divorce case can be converted into a consensual divorce if the necessary conditions are met. It is a common situation that consensual divorce cases are continued as contested divorce cases due to reasons such as the spouses not being able to agree on every issue, reneging on the agreement, or their marriage being less than 1 year old. Sometimes we witness the opposite of this situation, that is, spouses who are in a contentious divorce case, want to turn the contentious case into a consensual divorce case because they reach an agreement on all the issues they request from each other and want to take the divorce decision as soon as possible.

Spouses who want to end the contested divorce case by consensual divorce prepare a protocol containing all the issues they need to agree on and submit this request to the judge. Thus, a contested divorce case can turn into a consensual divorce case.

An important and noteworthy point is that in practice, if the marriage period has not exceeded 1 year at the time the contested divorce case is filed, the request for conversion to consensual divorce is rejected by the courts. Instead, the parties may waive the contested divorce case and file a new consensual divorce case.

THE COURT IN CHARGE AND AUTHORITY IN THE DIVORCE CASE

The competent court in divorce cases is the Family Court. In places where there are no family courts, civil courts of first instance are responsible for hearing divorce cases as family courts. The competent court is; According to Article 168 of the TMK, "In divorce or separation cases, the competent court is the court of the place of residence of one of the spouses or the court of the place where they last lived together for six months before the case."