Divorce case due to abandonment

Divorce due to abandonment refers to the divorce case filed on the basis of ABANDONMENT, which is regulated under the title of Reasons for Divorce in Article 164 of the Turkish Civil Code and is considered among the special reasons for divorce.

TMK Art. 164: "If one of the spouses abandons the other for the purpose of not fulfilling their obligations arising from the marriage union or does not return to the common residence without a justified reason, the separation has lasted at least six months and this situation continues and if the warning made by the judge or notary upon request is inconclusive, the abandoned spouse may file for divorce. The spouse who forces the other to leave the common residence or prevents the other from returning to the common residence without a justified reason is also deemed to have abandoned."

"Upon the request of the spouse who has the right to file a lawsuit, the judge or the notary, without examining the merits, warns the abandoning spouse that he must return to the shared residence within two months and the consequences that will arise if he does not return. This warning is made by announcement when necessary. However, a warning cannot be requested unless the fourth month of the certain period for filing a divorce case expires and a lawsuit cannot be filed until two months have passed after the warning."

As can be understood from the text of the law, in order to file a divorce case due to abandonment, certain conditions must be appropriate to the concrete case. That is;

CONDITIONS OF DIVORCE CASE DUE TO ABANDONMENT

A- ONE OF THE SPOUSES HAS LEAVED THE SHARED HOUSING WITH THE INTENTION OF NOT FULFILLING HIS OBLIGATIONS ARISING FROM THE MARRIAGE UNION: There are some rights and obligations regulated in the Turkish Civil Code that spouses have upon marriage.

TMK Art. In 185 "With marriage, the marital union is established between the spouses.

Spouses are obliged to jointly ensure the happiness of this union and to jointly pay attention to the care, education and supervision of the children.

Spouses have to live together, remain loyal to each other and help each other." It is stated as follows.

No two marriages are the same in a socio-cultural sense. As a natural consequence of this, apart from these obligations listed in the text of the law, of course, each marriage has other responsibilities that the spouses have in their own way. These are determined by the court by evaluating the concrete case and the responsibilities to be imposed on the spouses.

In order to file a divorce case due to abandonment, one of the spouses must have left the common residence with the intention of not fulfilling one of these duties and responsibilities imposed by law, especially the obligation to live together. However, abandoning the shared residence does not in any case give the other spouse the right to file for divorce due to abandonment. In order to file a divorce case based on the reason for abandonment, which is one of the special reasons for divorce; The spouse who leaves the common residence must not have a justified reason, but the spouse who wants to have the right to file a lawsuit must not force the spouse who leaves the common residence to leave. For example, the absence of one of the spouses from the shared residence due to a business trip does not give the other spouse the right to file a lawsuit. Apart from this, spouses living separately is TMK Art. It may be based on a justified reason arising from Article 197. For example, if there is a pending divorce case between the spouses.

Article 197- "One of the spouses has the right to live separately as long as his personality, economic security or the peace of the family is seriously endangered due to shared life.

If the break from living together is based on a justified reason, the judge, upon the request of one of the spouses, takes measures regarding the financial contribution to be made by one of the spouses to the other, the use of housing and household goods, and the management of the spouses' property.

One of the spouses may also make the above requests if the other avoids living together without a justifiable reason or if shared life becomes impossible for another reason.

If the spouses have minor children, the judge takes the necessary measures in accordance with the provisions regulating the relations between parents and children.

Another issue is that in order for the other spouse to have the right to file a lawsuit, he or she must not be the party that forces the abandoning spouse to leave. Because, in a decision of the General Assembly of the Supreme Court of Appeals, the concept of "… abandoning spouse" does not include the spouse who abandons the other for the sole purpose of not fulfilling his obligations arising from the marriage union or who does not return to the common residence without a justified reason; According to the clear provision of the law, this concept also includes the spouse who is deemed to have abandoned the other spouse by forcing him/her to leave or not to return.

"Because the law has clearly regulated that the spouse who forces the other to leave the common residence or prevents the other from returning to the common residence without a justified reason will be deemed to have abandoned the spouse, and by including the concept of a spouse with the right to sue, this spouse has the right to file a lawsuit as the abandoned one." He stated as follows.

Therefore, the spouse who forces his/her spouse to leave or prevents him or her from returning to the shared residence will be deemed to have "abandoned". However, the spouse who is forced to leave will not have the right to file a lawsuit, while the spouse who is forced to leave or is prevented from returning to the common residence will have the right to file a lawsuit.

B- THE SPOUSE WHO LEFT THE SHARED HOUSE LEAVES THE HOUSE WITHOUT A JUSTIFIED REASON AND THIS SITUATION LASTS FOR 6 MONTHS - THE WARNING SENT TO THE LEFT SPOUSE REMAINS INFLUENT

In order to file a divorce case due to abandonment, the conditions stipulated by the law must be met and the deadlines must be waited. That is;

WITHDRAWAL NOTICE

The abandoning spouse is warned by the judge or notary to return home within 2 months, upon the request of the spouse who has the right to sue. In order to issue a notice of abandonment, the 4-month period stipulated by law must be waited and at the end of the period, it must be made in accordance with the procedure and purpose. Even though the conditions such as providing certain opportunities stipulated by law to the spouse who left him/her after the warning to return home have been met, and the joint residence has been prepared 4 months in advance before being invited with the warning, a divorce case can be filed against the spouse who does not return within the legal period of 2 months after the warning, that is, at the end of a period of 6 months in total, based on the reason for abandonment. The warning in question must be made by the inviting spouse with sincere feelings and must have the intention of continuing the marriage. In cases where it is understood that the notice of abandonment is not sincere and does not carry the intention of continuing the marriage, it will be deemed invalid and the divorce case based on the reason for abandonment will be rejected.

For detailed information about the conditions that must be met in the joint residence to which the spouse who left the house with notice is invited, you can review our article titled COMMON RESIDENCE- FAMILY RESIDENCE .

WILL A CASE FILED DUE TO ABANDONMENT BE TURNED INTO A CONTRACTED LAWSUIT?

According to the Turkish Civil Code, consensual divorce is possible if the spouses apply together or if one spouse accepts the lawsuit filed by the other spouse. TMK art. 164, that is, it is not possible for a case filed on the basis of abandonment to turn into a consensual divorce case with the acceptance of the defendant. However, in a divorce case filed on the basis of abandonment, a consensual divorce can be achieved by using the "islah" procedure regulated in Article 176 of the Civil Code.

THE COURT IN CHARGE FOR DIVORCE DUE TO ABANDONMENT

The court responsible for hearing divorce cases is Family Courts. In places where there are no Family Courts, Civil Courts of First Instance are responsible for hearing consensual divorce cases as Family Courts. The competent court is the court where one of the spouses resides or where they lived together for the last six months before the lawsuit.