Divorce Due to Abandonment in Turkish Law
As a rule, marriage necessitates joint life. Sharing the common life is part of the obligations of the spouses to each other. If one of the spouses moves away from the common life with the other spouse in order not to fulfill this obligation, he is deemed to have left his spouse. Abandoned spouse can file for divorce due to abandonment.
Abandonment, which literally means separation, abandonment, neglect, is a situation frequently encountered in practice within the framework of family law. For this reason, the legislator has regulated abandonment as a reason for divorce. In the event that one of the spouses knowingly and voluntarily leaves the shared residence where they live with the other spouse in order not to fulfill their obligations arising from the marriage union or does not return to this common residence without a justified reason, a divorce case may be brought to the agenda due to abandonment. However, filing for divorce due to abandonment depends on the existence of certain issues. There are conditions that must be met in order to file a divorce-based divorce case. We will describe these conditions below.
Abandonment is a special and absolute reason for divorce. If the plaintiff spouse proves the existence of abandonment in the concrete case, the judge decides to divorce without paying attention to any other issue. In addition, there is no debate about whether the marital union has been shaken. However, abandonment is a ground for divorce based on fault. The fault of the plaintiff is important for the acceptance of the divorce case.
CONDITIONS FOR OPENING A DIVORCE ACTION DUE TO ABANDONMENT
Filing a divorce case based on the reason for abandonment is subject to certain conditions. If these conditions are fulfilled, the plaintiff spouse is entitled to file for divorce due to abandonment. Since the conditions of the case are tied to strict conditions, divorce cases based on the reason for abandonment are very rare in practice. However, since it is an absolute and special reason for divorce, you can conduct an effective legal process by consulting with a lawyer.
1. One of the spouses must have ended the joint life. (must have left his wife)
2. This abandonment must be made knowingly and voluntarily. (must be flawed)
3. The purpose of the abandonment must be non-fulfillment of the obligations arising from the marriage union or not returning to the common residence.
4. The abandonment must last at least 6 months.
5. Abandonment must still be ongoing.
6. A warning must be given and this warning must be ineffective.
When the conditions given above are met, the abandoned spouse has fulfilled the conditions of the lawsuit and can file for divorce due to abandonment.
SITUATIONS ENDING THE COMMON LIFE IN DIVORCE DUE TO ABANDONMENT
In order to file for divorce based on abandonment, one of the spouses must leave the common residence unfairly, that is, without a justifiable reason. In this context, it is very important that the abandonment is unfair. For example, if he has left the common residence due to work, he will not be deemed to have left because there is a justifiable reason.
Persons who leave their homes for reasons such as deception or violence, which we frequently encounter in practice, will not be subject to a divorce lawsuit based on abandonment by the other spouse, as they have a justifiable reason in this regard. Another issue that needs to be emphasized is that the person must make this unjustified abandonment knowingly and willingly. The person leaving must do so of their own free will. Leaving the common residence of the person who has been exposed to fraud, coercion or threat will not give the other party the right to file for divorce. For more detailed information, you can visit our office and get legal support from our team specialized in divorce law.
IN WHAT CIRCUMSTANCES CAN A DIVORCE CASE BE OPENED DUE TO ABANDONMENT?
- When one of the spouses leaves the house in order not to fulfill their obligations arising from the marriage union,
- In cases where he left for a just cause and then did not return home even though this reason disappeared,
- In cases where one of the spouses forces the other to leave the house,
- In cases where one of the spouses prevents the other spouse from returning home without a justified reason
The important issue is the underlying reason for one of the spouses to leave the common residence, that is, the house. As a rule, if one of the spouses cannot be in the common residence because he is in prison, for treatment, for work, he is not considered to have left. In the presence of justified reasons such as one of the spouses having a contagious disease or being exposed to ill-treatment, the condition of litigation is not met.
However, in case of leaving the house based on a just cause, if this just cause has disappeared and the spouse does not return to the house despite this, the condition of filing a lawsuit based on abandonment will be provided. For example, if the other spouse has left the house due to his wife’s contagious disease and he still does not return home despite his recovery, the spouse will now be in the status of leaving because there is no justifiable reason.
If one of the spouses has been forced to leave the house by the other spouse, that is, he has been removed from the house without his consent and has been expelled, there is also a case based on abandonment. The spouse who was forced to leave can file a lawsuit against the spouse who removed him from the home. In this case, the spouse who expels the spouse from the house is in the position of “leaving”, and a divorce case can be filed against him or her due to abandonment.
6 MONTHS PERIOD IN DIVORCE CASES DUE TO ABANDONMENT
One of the conditions that must be met for abandonment is the completion of a period of at least 6 months. One of the spouses must not return to the common residence for at least 6 months or prevent the other spouse from coming without justified reason. However, abandonment must still be ongoing. If the spouses have reunited to maintain their common life despite all the conditions being met, a divorce case cannot be filed.
The 6-month period should run uninterrupted. If one of the spouses returned to the common residence within 6 months and left again, this 6-month period will start to run again. Today, however, this provision is frequently misused. If the leaving spouse visits the joint residence before the 6-month period expires so that the other spouse cannot file a divorce case due to abandonment and leaves the residence again, there will be abuse of right and this will not be protected in the legal world. When such a situation is detected, the judge will consider the time condition to be met.
DISCLAIMER CONDITION IN DIVORCE ACTION DUE TO ABANDONMENT
The warning is a legal obligation as an indispensable condition of the divorce case due to abandonment. The abandoned spouse must first give a warning for the leaving spouse to return home. A lawsuit cannot be filed without a warning. If it is determined that you did not receive a warning in the lawsuit you filed, your case will be rejected. A warning is not enough on its own. A warning that is not duly withdrawn is of no effect. There are important points that must be followed when taking a warning. These;
It must have been 4 months since abandonment.
The notice must be drawn through the family court judge or notary public.
The notice must be sincere.
After the warning is taken, the result of the warning should be waited for 2 months.
As stated above, the notice is subject to the form requirement. In other words, withdrawal by phone, letter or other methods does not meet the condition of the lawsuit. The element of judge or notary is mandatory.
The notice cannot be withdrawn at any time of the abandonment. As a rule, a warning cannot be made before the minimum period of 4 months has passed after the cancellation. When the warning is taken, as a rule, 2 months should be waited for the result of the warning. A warning cannot be filed within 4 months from the beginning of the abandonment, and a divorce case cannot be filed until 2 months have passed since the warning was issued. Thus, the 6-month period is completed and a divorce case can be filed due to abandonment.
DIVORCE ACTION PROCESS DUE TO ABANDONMENT
When the necessary conditions are met to file a divorce case based on abandonment, you can carry out your legal process effectively and quickly with divorce law lawyers, and you can file your case. As mentioned above, filing for divorce due to abandonment is not a simple process. It is necessary to provide certain conditions and to comply with heavy form conditions. However, when these conditions are met and this process is completed, the judge decides to divorce because it is an absolute reason for divorce. In this context, your process is not extended, other conditions are not sought.
FREQUENTLY ASKED QUESTIONS ABOUT DIVORCE DUE TO ABANDONMENT
Where to File a Divorce Due to Abandonment?
In divorce cases filed due to abandonment, the competent court is the residence of one of the spouses or the family court of the place where they have lived together for the last six months before the lawsuit.
Can Compensation Be Requested in a Divorce Case Due to Abandonment?
Yes, as a rule, the person who has suffered damage due to divorce can request financial compensation from the defective spouse. However, the important point here is that the person claiming compensation must be less at fault than the other spouse or not at all. Non-pecuniary compensation can be requested by the spouse whose personal rights have been violated due to the events leading to the divorce.
Can a spouse who states that he forgives what happened in the warning request moral compensation?
Forgiven incidents prevent non-pecuniary damages. If the divorced spouse states in his warning to the other spouse that he has forgiven what has happened until that time, he is considered to have forgiven other incidents and waived his right to moral compensation when he requests moral compensation. He cannot receive moral compensation for the events that took place up to that time. However, the right to demand non-pecuniary damages for incidents occurring after the warning is reserved.
Can a Divorce Case Be Filed Based on Multiple Reasons for Divorce?
If you have filed for divorce due to abandonment, you cannot claim other grounds for divorce even if they are present in the concrete case. This situation is not valid for other reasons for divorce, but is specific to abandonment.
For more detailed information on this subject, you can contact us on our contact page.
EXAMPLE DECISIONS ON DIVORCE CAUSED BY ABANDONMENT
“…by proposing to his sister-in-law, the man who was already in a flawed situation gave a warning to his wife, who did not return home for this rightful reason, and sent insulting letters and messages to the common child Tuğba and his wife. It has been understood that he filed for divorce on the basis of the article. by the local court; The description of “the woman tolerates the faulty behavior of the man” from the statement in the hearing dated 13.06.2012, which was cited as the reason for the rejection of the woman’s case, stating that “the divorce case was filed after the notice of the defendant, which is the basis for the divorce case based on abandonment, was served on me” does not fit the specifics of the concrete case. your man; The events that led to the divorce were caused by his faulty behaviors such as proposing to his sister-in-law, Sema, and writing insulting letters and messages to his wife. It is clear that the plaintiff is right to file a lawsuit against him and it is not legally possible to force the spouses to live together under these conditions.” (Law General Assembly 2017/2411 E. , 2021/995 K.)
“… the right to file a lawsuit in a divorce case based on abandonment, as the law clearly states, belongs only to the divorced spouse, and the spouse who forces the other spouse to leave the common residence or prevents them from returning to the common residence does not have the right to file a divorce case based on abandonment, since they are in the position of the abandoned spouse. In the evaluation of the concrete event; Even though the lawsuit filed by the court stating that the plaintiff who forced his wife to leave the common house, did not have the right to file a lawsuit, was rejected by the Special Chamber, stating that the case should be accepted on the grounds that “the defendant did not return to the common house to which he was invited, although he did not have a just cause”. When the events reflected in the file are evaluated as a whole, it is understood that the plaintiff husband constantly insulted her and forced her husband to leave by expelling her from the common residence. Considering all the facts, concepts and legal regulations discussed above, it should be accepted that the plaintiff is not the one who has been abandoned as he claims, but the one who leaves. When this is the case, since the plaintiff does not have the right to file a divorce lawsuit based on abandonment belonging to the abandoned spouse, his case cannot be accepted either…” (Legal General Assembly 2017/2727 E. , 2020/846 K.)
The plaintiff-defendant man filed for divorce based on the legal ground of abandonment (TMK art. 164), and the divorce was ruled upon the acceptance of the man’s case. In the divorce case due to abandonment, the spouses must be invited to an independent residence, either chosen by the spouses together (TMK Article 186) or chosen by one of the spouses or determined by the judge (TMK Article 195) due to the fulfillment of the conditions in Article 188 of the Turkish Civil Code. The residence to which the defendant-plaintiff woman was invited is not the common residence of the parties. For this reason, the defendant-plaintiff woman is right not to comply with the warning. (2nd Law Office 2019/308 E. , 2019/1378 K.)