Contested Divorce Case in Turkey – Attorney Ozan Soylu
CONTESTED DIVORCE
The dissolution of the marriage union may occur with the death or absence of one of the spouses, or it may occur with a court decision. The marriage ends with the decision of divorce. Spouses can end the marriage union with two different divorce cases. In this context, the institution of divorce is carried out as either an uncontested divorce case or a contested divorce case. As a rule, a contested divorce is seen when the spouses cannot agree on the issue of divorce. In other words, when the parties cannot get an uncontested divorce or cannot agree on the issue of divorce, a contested divorce case comes to the fore. There may be multiple reasons why the parties cannot come to an agreement. A contested divorce case can be filed in cases of joint custody of children, alimony requests, compensation issues, disagreements in property division, and one of the spouses does not want to divorce.
IN WHICH CIRCUMSTANCES CAN A CONTESTED DIVORCE CASE BE OPENED?
In order for the divorce to take place, the judge must decide on the divorce with a lawsuit filed by one of the spouses, provided that both spouses are alive. The spouse or spouses who want to file a divorce case within the framework of Turkish Law have to base their case on a legal reason specified in the law. In this context, the parties may initiate the divorce process based on specific or general reasons for divorce. While the general reason for divorce is the deterioration of the marriage union, which is stipulated in TMK 166, the specific reasons for divorce are divorce due to adultery, divorce due to abandonment, divorce due to mental illness, divorce due to dishonorable life, and divorce due to bad and dishonorable behavior.
HIGH-CONFLICT DIVORCE
This reason for divorce, known as high-conflict divorce , is included in Turkish law as a general reason for divorce. In the event that the marriage union of the parties becomes unbearable to an extent that cannot be expected from them, a divorce may be decided.
Adultery is a special ground for divorce based on the breach of fidelity obligations of spouses to each other. If it is proven that one of the spouses had sexual intercourse with another person, the judge decides to divorce absolutely.
DIVORCE DUE TO FATAL INJURY, BAD BEHAVIOR, AND HONORABLE BEHAVIOR
In order for a divorce case to be filed based on these reasons, one of the spouses must be tried against his life by the other spouse or be treated badly or be subjected to a severely humiliating behavior. Acts such as committing violence and offending in public give the right to divorce based on this reason for divorce.
COMMITTING DISHONORABLE CRIMES OR LIVING BADLY
If one of the spouses commits a humiliating crime or leads a dishonorable life makes the life of the other spouse intolerable, they can file for divorce. Theft and sexual assault crimes are examples of humiliating crimes.
DIVORCE DUE TO ABANDONMENT
If one of the spouses has left the common house without a justifiable reason and the reason for this abandonment is to escape from the responsibilities brought by the marriage union, a divorce case based on abandonment can be filed. You can start your legal process after fulfilling the necessary issues such as giving a warning.
DIVORCE DUE TO MENTAL ILLNESS
If it is determined by the official report that one of the spouses has a mental illness and this mental illness cannot be cured at all, a divorce case can be filed.
THE PROCESS OF DIVORCE CASE
The spouse who wants to file a divorce case can start the legal process by applying to the Turkish Family Court. The petition submitted to the court is notified to the defendant, that is, to the spouse who wants to divorce. The defendant spouse must respond to the petition of action notified to him within 2 weeks. The plaintiff, that is, the spouse who filed the divorce case, can respond to the counterclaim petition submitted by the defendant within 2 weeks in the same way. The plaintiff and the defendant each have the right to present two petitions before the court. After the petition phase is completed, the parties are called to the first hearing. This hearing has the nature of a “preliminary examination hearing”. In this preliminary hearing, the parties have to present the documents and evidence they claim in their petitions. The party that fails to comply with this requirement shall be deemed to have given up relying on the said evidence. As a rule, the pre-examination hearing is held once, but if necessary, it can be held a second time. The hearings after the preliminary examination are the investigation hearings. These hearings are usually held more than once in practice, depending on the nature of the contested divorce case. All evidence is discussed at these hearings. At the end of these hearings, an oral hearing is held and the parties are heard for the last time and a judgment is made about the divorce case.
SHOULD THE PARTIES ATTEND THE HEARINGS?
If the parties have attorneys, they are not obliged to attend the hearing. Lawyers may represent the parties by attending hearings by proxy. However, it is important that the party who does not have a lawyer representing him attends the hearing and defends himself. It should be noted that if the plaintiff spouse, that is, the spouse who filed the divorce case, does not attend the hearing and does not have a lawyer to represent him/her, the divorce case is suspended until it is renewed within 3 months. In the event that the defendant spouse, that is, the spouse wanted to divorce, does not participate in the lawsuit and is not represented by a lawyer in the lawsuit, the lawsuit continues, but the defendant does not have the right to object to the transactions made while he is absent.
TEMPORARY CUSTODY DURING A CONTESTED DIVORCE CASE
After the divorce case is filed, the spouses have the right to live separately until the divorce decision is finalized. Where the underage children will stay during the separation of the spouses is a matter of debate. As a rule, spouses can decide who will have custody of their joint children by mutual agreement. However, in most of the contested divorce cases, there are disagreements about the custody of the child. This dispute is resolved by the court. In accordance with the best interests of the child, the judge may give custody of the child to one of the spouses or appoint a guardian for the child during the divorce case. Even if there is no demand in this regard, the judge may take measures regarding the temporary custody of the child spontaneously. The judge takes into account the best interests of the child and decides what his health, education, morals and safety require. Even if the parties have decided who will stay with the child, the judge does not have to approve this issue.
ABDICATE OF CONTESTED DIVORCE CASE
The petitioner, that is, the divorce case, can only waive the divorce case with his own consent. However, for this, the consent of the defendant, that is, the spouse who is to be divorced, is also required. The waiver is a valid matter for the plaintiff only. Waiving the case and withdrawing the case are two different situations. With the waiver of the lawsuit, the lawsuit disappears completely. While the plaintiff may state that he has waived the case during the hearing, he may also present it to the court with a petition. An important point to be considered is that the plaintiff cannot file a divorce case again based on the same reasons after the case he waived. Since the plaintiff will be deemed to have forgiven the events that led to the divorce case, a divorce case cannot be filed again on the issues that have been forgiven. All faults occurring up to the date of waiver will be deemed forgiven. However, the events that occurred after the waiver are not forgiven and a divorce case can be filed again based on these events.
SHARING OF GOODS IN DIVORCE ACTION
In Turkish Law, the regime of participation in acquired goods has been accepted as the legal property regime. Apart from this, there are also property separation, shared property separation and property partnership regimes. As a rule, if the parties have not determined the goods regime that will be valid between them, they are subject to the legally acquired goods participation regime. With the property regime contract, the spouses can choose the property regime to which they will be subject. This contract can be made before marriage as well as during or after marriage. It should be noted that the spouses are not under the obligation to make a property regime contract. However, if they have not, the regime of participating in the acquired property is observed while sharing property in the divorce process.
If the spouses have not made a property regime agreement between them, the marriage is considered to have ended on the date of the divorce case and the legal property regime is applied. In this case, the assets of the spouses are divided into two as personal and acquired (joined) property. The personal properties of the spouses are not included in the liquidation of the property regime. The property acquired by the spouses together from the date of marriage to the date of divorce is divided into two by making the necessary additions and reductions.
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Contested Divorce Case in Turkey
