Divorce Due to Mental Illness in Turkish Law – Atty. Ozan Soylu
Mental illness is an important reason for divorce when it comes to terminating the marriage union in Turkey. This reason for divorce, regulated in Article 165 of the Turkish Civil Code, allows the other spouse to divorce when one of the spouses has a mental illness. However, for this option to be used, certain conditions must coexist. These conditions are the existence of mental illness, the illness making common life unbearable, and the impossibility of recovery from the illness. The point to note is that all of these conditions must be met.
Divorce based on mental illness is a relative and special reason for divorce in the Turkish Legal System. Being relative means that mental illness is not considered a reason for divorce on its own, but the condition that common life becomes unbearable is also sought. Being special stems from the fact that it is explicitly regulated in the law. However, this reason for divorce is not based on fault. In other words, it is not investigated whether the mentally ill spouse is at fault. Also, there is no time limit for filing a divorce case based on this reason. Therefore, no matter how long the spouse has been mentally ill, a divorce case can be filed if other conditions are also present.
A divorce case filed due to the breakdown of the marriage union can be converted into a divorce case based on mental illness through amendment. However, for a decision to be made for divorce due to mental illness, it is essential that the illness makes common life unbearable for the other spouse and that it is determined by an official health board report that there is no possibility of recovery.
The following psychiatric illnesses can be listed as examples that may cause a divorce case to be filed due to mental illness. However, each case should be evaluated on its own merits, and it should be documented with an official health board report that the illness makes the marriage union unbearable and is not treatable.
- Schizophrenia
- Bipolar disorder (Manic depressive disorder)
- Severe depression
- Obsessive-compulsive disorder (OCD)
- Paranoid disorders
- Severe anxiety disorders
- Dementia (including Alzheimer’s disease)
- Severe personality disorders
- Psychotic disorders
- Severe post-traumatic stress disorder (PTSD)
Note: This list is exemplary, and each situation should be evaluated on its own merits. The severity of the illness, its treatability, and its effect on the marriage union are taken into consideration for the divorce decision.
What constitutes mental illness and its detection is a matter of medical science. Therefore, in a divorce case based on mental illness, the judge cannot make an assessment on whether the person in question is mentally ill or not. Instead, a report from the official health board is required. In a Supreme Court decision, it was clearly stated that “It must be determined by an official health board report whether the defendant is mentally ill or not, and if it is understood that he/she is mentally ill, the guardianship authority should be notified about appointing a guardian to the defendant, and the case should be directed to the guardian to be appointed by the guardianship authority.”
The official health board report should clarify two important points. First, the presence or absence of mental illness, and second, if there is mental illness, whether it is possible for it to be cured. A report on the existence of mental illness and its incurability is essential for a divorce decision to be made based on this reason. However, it is also possible to file a divorce case based on mental illness in cases where the disease may be cured with many years of treatment or where it will be clear whether there is a chance of recovery as a result of these treatments.
The time of onset of mental illness is not important. What matters is that the person is mentally ill at the time of filing the case and during the trial. If mental illness exists before marriage, in this case, both nullity and divorce cases can be filed. The point to note is that only the spouse who is not mentally ill can file a divorce case based on mental illness.
Filing the case does not directly require the appointment of a guardian to the other spouse. First, the ability of the mentally ill spouse to represent themselves in the case is investigated. If it is concluded that they do not have this ability, an application is made to the civil court of peace to obtain a restriction decision for the person concerned and to ensure the appointment of a guardian. With the appointment of the guardian, the authority to follow the case will now be with the guardian.
The spouse who is not mentally ill can file a divorce case if they are not permanently deprived of the power of discernment. However, if the other spouse is also not mentally ill, the reason for this case will not be mental illness, but can be any reason listed among the reasons for divorce in the law and whose condition has been fulfilled in the event. In other words, if the conditions are met, a case can be filed based on one of the other reasons for divorce other than mental illness. However, if the mentally ill spouse is permanently deprived of the power of discernment and if equity requires, their legal representative can file this case on their behalf.
In divorce cases based on mental illness, since the mentally ill spouse will not be at fault, material and moral compensation cannot be ruled against them.
The situation will not be special in terms of alimony. On the other hand, the mentally ill spouse can demand material, moral compensation and alimony from their spouse if the conditions are met. In a Supreme Court decision, it was clearly stated that “Since the behaviors of the mentally ill defendant woman are not voluntary, her fault cannot be mentioned. On the other hand, the defendant man who did not care for his wife and did not call or ask about her during the period she was in the hospital is completely at fault in the events that caused the divorce. The realized faulty behaviors are also of a nature that constitutes an attack on the woman’s personal rights. For the stated reasons, it is necessary to decide to accept the material and moral compensation demands of the defendant woman.”
In divorce cases based on mental illness, it should be investigated whether the defendant has the ability to defend themselves adequately. If it is understood that they do not have this ability and there is no existing restriction and guardian appointment decision, the judge should notify the civil court of peace to appoint a guardian to the defendant and make it a prejudicial issue.
In a Supreme Court decision, it was clearly stated that “The capacity to sue and be sued is related to public order and is directly taken into consideration by the courts. Given that the plaintiff’s mental illness has been alleged in the case and this claim has been confirmed by some evidence in the file, what the court needs to do is to write to the Civil Court of Peace in accordance with Articles 355 of the Civil Code and 42 of the Code of Civil Procedure, to investigate whether the plaintiff needs to be placed under guardianship, to consider this issue as a preliminary issue, if necessary, to take action in accordance with Article 405/8 of the Civil Code, and to suspend the trial until the result.”
If the mentally ill spouse is permanently deprived of the power of discernment, they cannot make a statement of acceptance of the case. Also, since their legal representative is not authorized to make this statement, it will not be possible for the case based on mental illness to turn into an agreed divorce. This situation is an important guarantee for the protection of the rights of the mentally ill spouse.
With the divorce decision, the marriage union is terminated. In this case, there arises a necessity to make arrangements regarding many of the institutions and situations that arise with the marriage union. Among these, the ones that are especially important in the case of divorce based on mental illness are; compensation, alimony, and custody of children. While some of these decisions are taken ex officio, some are taken upon request.
Regarding compensation, according to Article 174 of the Turkish Civil Code, the existence of fault is sought in order to rule on material and moral compensation. In a divorce case filed based on mental illness, since the fault of the mentally ill defendant cannot be mentioned, material or moral compensation cannot be ruled against them. However, Article 65 of the Turkish Code of Obligations should be analogously applicable here. For example, if a spouse who has become mentally ill and has a very high financial situation, if other conditions of responsibility are present and if equity also requires, they should be obliged to give material and moral compensation to the other spouse by analogy to Article 65 of the Turkish Code of Obligations.
Regarding alimony, according to Article 175/2 of the Turkish Civil Code, the fault of the alimony obligor is not sought in poverty alimony. Since it is regulated independently of the fault condition, poverty alimony can be ruled against the mentally ill person if the conditions are met. The situation does not differ for the mentally ill person for the precautionary and participation alimony ruled for the spouses to contribute to the expenses of their children whose custody is not given to them, as the fault condition is not sought for these either.
Regarding the custody of children, according to Article 336/1 of the Turkish Civil Code, “as long as the marriage continues, the spouses use custody together”. In case of divorce, the judge can give custody to one of the spouses (Article 336/2). In the face of the fact that one of the spouses is mentally ill, it is argued that it would be more appropriate not to leave custody to the mentally ill spouse. The issue to be examined here is whether the mental illness of the mentally ill spouse prevents the proper fulfillment of the custody duty. If this situation prevents the proper fulfillment of the custody duty, it is not possible to give the right of custody to the mentally ill spouse. Because this situation is a reason for the removal of the existing right of custody according to Article 348/2 of the Turkish Civil Code.
In conclusion, divorce cases based on mental illness are a special and sensitive issue. In these cases, a balance needs to be struck between protecting the rights of the mentally ill spouse and removing the obligation of the other spouse to continue the marriage union. In order to achieve this balance, it is of great importance to carefully examine the conditions stipulated in the law and to evaluate each concrete case within its own characteristics. In addition, the complete fulfillment of procedures such as obtaining an official health board report and appointing a guardian when necessary in such cases is critical for a fair trial.
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Divorce Due to Mental Illness in Turkish Law
