Divorce Due to Severe Incompatibility in Turkey – Atty. Ozan Soylu
What is Severe Incompatibility in Turkish Law?
Severe incompatibility refers to situations where it has become unreasonably difficult for spouses to continue a shared life. This concept, also known as the fundamental breakdown of the marital union, is regulated as a general grounds for divorce in Article 166 of the Turkish Civil Code (TCC).
What Does TCC Article 166 Regulate?
Article 166 of the Turkish Civil Code regulates the conditions for divorce in case of breakdown of the marital union. This article explains the conditions and procedure for filing a divorce case in the event of fundamental breakdown of the marital union in three paragraphs.
Content of TCC 166/1: This paragraph regulates the right to file for divorce in case of fundamental breakdown of the marital union. If the marital union has been so severely shaken that the spouses cannot be expected to continue their shared life, either spouse may file for divorce. This provision provides a legal way out for spouses in cases where the continuation of the marriage has become impossible.
Content of TCC 166/2: The second paragraph regulates the right of objection of the defendant in cases where the plaintiff’s fault is more severe. However, if this right of objection is abused and there is no longer any interest worth protecting for the defendant and the children in the continuation of the marriage, the judge may still decide on divorce.
Content of TCC 166/3: The third paragraph determines the conditions for uncontested divorce in case of breakdown of the marital union. If the marriage has lasted at least one year and the spouses apply jointly or one spouse accepts the other’s case, the marital union is considered to be fundamentally shaken. The judge should personally hear the parties and be convinced that their will is freely expressed, and should find the agreement on the financial consequences of divorce and the situation of children appropriate. The judge can make necessary changes and decree the divorce if the parties accept.
As can be seen, TCC Article 166/1-2 is designed for filing a contested divorce case based on the fundamental breakdown of the marital union; whereas TCC Article 166/3 is designed for filing an uncontested divorce case.
To exemplify the relationship between TCC Article 166/1-2 and 166/3 through a Court of Cassation decision:
“(…) The parties have divorced according to Article 166/3 of the Turkish Civil Code (uncontested divorce), and the judgment has been appealed by the defendant husband. Until the decision on uncontested divorce becomes final, the parties legally have the right to withdraw from the agreement on the financial consequences of divorce and the situation of children. In this case, the uncontested divorce case should be treated as a “Contested divorce (TCC Article 166/1-2)” (…)” 2nd Civil Chamber Case No: 2020/4971 Decision No: 2020/5355 Date: 04.11.2020
Reasons for Severe Incompatibility and Examples of Court of Cassation Decisions
Commonly Encountered Reasons
The reasons that fundamentally shake the marital union can vary for each marriage. However, when court decisions and legal doctrine are examined, some common reasons stand out. These reasons can be listed as follows:
1 – Infidelity: An extramarital affair by one of the spouses can seriously damage the marital union. However, infidelity alone is not accepted as fundamentally shaking the marital union; it is evaluated together with other factors.
Example Court of Cassation Decision: (…) Given that it is accepted that the man engaged in unfaithful behavior, it is not correct to attribute the woman’s jealousy as a fault to her. According to the collected evidence and the scope of the file, it should be accepted that the man is fully at fault in the fundamental breakdown of the marital union and the events leading to divorce. (…) 2nd Civil Chamber Case No: 2015/15201 Decision No: 2016/6659 Date: 04.04.2016
2 – Violence and Mistreatment: Physical, psychological, or economic violence are among the reasons that deeply shake the marital union. Continuous behaviors such as insults, humiliation, and threats are also considered within this scope.
Example Court of Cassation Decision: “(…) From the investigation and collected evidence, in the events that caused the fundamental breakdown of the marital union; in response to the faults of the defendant-counter plaintiff husband determined by the court, it is understood that the plaintiff-counter defendant wife also insulted her husband by saying “you’re sterile, you can’t have children, are you even a man“. In this case, there exists and is proven an incompatibility between the parties that fundamentally shakes the common life and makes it impossible to continue the union.(…)” COURT OF CASSATION 2nd Civil Chamber Case No: 2014/754 Decision No: 2014/2657 Date: 13.02.2014
3 – Alcohol and Substance Addiction: If one of the spouses is addicted to alcohol or drugs, it can negatively affect family life and shake the marital union.
Example Court of Cassation Decision: (…) During the actual cohabitation of the spouses, it is understood that the defendant-counter plaintiff man continuously used alcohol and drugs in a way that made the marital union unbearable. In this case, there exists and is proven an incompatibility between the parties that fundamentally shakes the common life and makes it impossible to continue the union.(…) 2nd Civil Chamber Case No: 2021/1246 Decision No: 2021/3011 Date: 14.04.2021
4 – Economic Problems: Economic issues such as excessive borrowing, gambling habits, or failure to provide for the family can threaten the marital union.
Example Court of Cassation Decision: (…) On the other hand, it is understood that the defendant husband, who does not fulfill his union duties, gambles, and does not allow his wife to see her family, is entirely at fault in the fundamental breakdown of the marital union with these faulty behaviors. (…) 2nd Civil Chamber Case No: 2009/17477 Decision No: 2010/20154 Date: 02.12.2010
5 – Sexual Incompatibility: Sexual incompatibility between spouses or avoidance of sexual intercourse can damage the marital union.
Example Court of Cassation Decision: (…) There is no evidence or claim that the plaintiff woman avoided or prevented sexual intercourse. It has been determined that there is no physical or anatomical condition preventing the parties from having sexual intercourse. According to this realized situation, the husband who cannot provide sexual intercourse is entirely at fault in the fundamental breakdown of the marital union.(…) 2nd Civil Chamber Case No: 2013/22464 Decision No: 2014/5606 Date: 13.03.2014
6 – Relations with Family Elders: Excessive interference of one spouse’s family in the marriage or disagreements between spouses regarding family relationships can shake the marital union.
Example Court of Cassation Decision: (…) The first instance court stated that while the marital union continued, the plaintiff defendant man’s family interfered with the marriage, he didn’t want the woman to see her family,(…) and the defendant-plaintiff woman also didn’t want him to see his family, she didn’t fulfill her union duties, and in the last incident she didn’t let her spouse into their shared home, therefore in these events causing divorce, the parties were equally at fault (…)
Although the regional court of appeal accepted that the parties were equally at fault in the fundamental breakdown of the marital union; “Not letting her spouse into the shared home in the last incident” attributed to the defendant-plaintiff woman by the regional court of appeal is a reactive behavior due to her husband kicking the door, therefore it cannot be attributed as a fault to the woman. According to the other faulty behaviors determined and realized by the first instance court and the regional court of appeal, it should have been accepted that the plaintiff-defendant man was heavily at fault rather than accepting that the parties were equally at fault, which was not correct.
As explained in paragraph 2 above; in the events causing the breakdown of the marital union, the man is heavily at fault, and these faulty behaviors attributed to the man also constitute an attack on the woman’s personal rights. The woman will be deprived of the spouse’s material support as a result of the divorce. Therefore, considering the social and economic status of the parties, the severity of the act that is the basis for compensation, and the rules of equity (TCC Article 4), it was necessary to decide on material and moral compensation (TCC Article 174/1-2) in favor of the woman, but as a result of the erroneous fault determination, the decision to reject the material and moral compensation claim was not found correct and required reversal.(…) 2nd Civil Chamber Case No: 2020/1670 Decision No: 2020/2633 Date: 03.06.2020
7 – Lack of Communication: The inability to establish healthy communication between spouses can weaken the marital union over time.
8 – Personality Incompatibilities: The inability to reconcile differences in character and lifestyle of spouses can threaten the marital union.
9 – Disagreements on Having or Raising Children: Deep disagreements on the desire to have children or on child-rearing can shake the marital union.
Example Court of Cassation Decision: (…) On the other hand, the fact that the eye disease accepted as the reason for divorce may have genetic characteristics for future children under certain conditions, in other words, even the existence of such a possibility cannot be characterized as a fundamental breakdown of the marital union. Such a possibility can at most lead spouses to some decisions and precautions about whether to have children. As clearly stated in many decisions of our Court of Cassation, even “infertility” alone is not a reason for divorce.(…) 2nd Civil Chamber Case No: 1990/10764 Decision No: 1991/2883 Date: 18.02.1991
10 – Religious or Cultural Differences: The inability to reconcile differences in religious beliefs or cultural values between spouses can damage the marital union.
Example Court of Cassation Decision: (…) In the concrete case, within the framework of freedom of religion and belief, the woman changed her religious belief within the marital union…and joined the religious group known as…. Religious preferences are the most important rules that affect and regulate people’s culture, lifestyles, and purposes. By changing her religious belief, the woman has changed the lifestyle known and mutually accepted by the parties at the beginning of the marriage in a way that makes it unbearable for the other spouse. If the other spouse thinks that this change has fundamentally shaken the marital union for him, he can no longer be expected to continue this marriage.(…) 2nd Civil Chamber Case No: 2014/11841 Decision No: 2014/26353 Date: 22.12.2014
Each of these reasons, alone or together, can fundamentally shake the marital union. However, since each marriage is unique, courts evaluate each case within its own circumstances. A reason that shakes the union for one marriage may not have the same effect for another marriage.
It is important to note that the existence of these reasons does not automatically constitute grounds for divorce in Turkish law. The court evaluates to what extent these reasons have shaken the marital union and whether the continuation of the common life can be expected. Also, the fault rates of the spouses are taken into consideration.
Types of Divorce Due to Severe Incompatibility
Contested Divorce
Contested divorce is the most common type of divorce cases filed due to the fundamental breakdown of the marital union. In such cases, one spouse files a lawsuit without the consent of the other and tries to prove that the marital union has been fundamentally shaken.
In contested divorce cases, the plaintiff spouse needs to prove their claims. However, the defendant spouse also has the right to present counter-evidence.
(…) From the collected evidence, it has been proven that the defendant husband inflicted violence on his wife. The violence inflicted on the plaintiff is a faulty behavior that fundamentally shakes the marital union and necessitates divorce. The fact that the plaintiff did not mention this incident in the petition is contrary to procedure and law to not consider it as evidence in divorce cases filed due to “fundamental breakdown of the marital union“. Since the plaintiff has proven that the defendant spouse inflicted violence on her, she has also proven her claim that the marital union has been fundamentally shaken (…) 2nd Civil Chamber Case No: 2013/26864 Decision No: 2014/10528 Date: 07.05.2014
It should be noted that according to Article 166/2 of the Turkish Civil Code, the defendant has the right to object if the plaintiff’s fault is more severe. However, for this objection to be accepted, the defendant must have an interest worth protecting in the continuation of the marriage, and the objection must not be in the nature of abuse of right.
(…) DISSENTING OPINION
The Turkish Civil Code No. 4721 and other Laws do not assign a duty of “having a wedding ceremony” to the man.
There is no such obligation among the general provisions of marriage (Ömer Uğur GENÇCAN, “General Provisions of Marriage According to Turkish Civil Code No. 4721″, Journal of the Court of Cassation, Volume:29, January-April 2003, Issue:1-2, Pages:43-49. (Abbreviation: GENÇCAN-Marriage General).
Due to economic conditions, “not having a wedding ceremony” is the rule in our country, while “having a wedding ceremony” is the exception.
Even the wealthiest families avoid having wedding ceremonies nowadays.
Even if not having a wedding ceremony is considered a “fault” for a moment, such an action does not constitute the “element of damage” (GENÇCAN-Divorce-2, p. 707-708) for moral compensation. In other words, not having a wedding ceremony does not put the plaintiff in the position of “one whose personal rights have been violated”. (…) 2nd Civil Chamber Case No: 2006/2463 Decision No: 2006/8656 Date: 01.06.2006
Uncontested Divorce
Uncontested divorce is a form of divorce regulated in Article 166/3 of the Turkish Civil Code and is considered a type of fundamental breakdown of the marital union. According to this article, “If the marriage has lasted at least one year, in case of joint application by the spouses or acceptance of the case by one spouse, the marital union is considered to be fundamentally shaken.” This provision allows spouses to divorce by mutual agreement.
For an uncontested divorce to take place, the spouses must not only agree on the divorce but also reach a mutual understanding regarding the financial consequences of the divorce and the situation of the children, if any.
(…) has turned into a divorce case based on the fundamental breakdown of the marital union. The defendant woman’s statement that she does not demand alimony and compensation is aimed at achieving an uncontested divorce, and the transformation of the case into a contested divorce case under Article 166/1 of the Turkish Civil Code does not mean waiving these demands.(…) 2nd Civil Chamber Case No: 2012/11337 Decision No: 2012/19728 Date: 12.07.2012
However, even in uncontested divorce, the judge has discretionary power. If the judge does not find the agreement of the parties appropriate, they may not decide on divorce or may request changes to the agreement. This is particularly important for protecting the interests of children.
(…) A divorce case was filed by the plaintiff wife based on adultery and the breakdown of the marital union, and the defendant party submitted a response petition. Within the period for the plaintiff to respond to the answer, upon the agreement of the parties, the court decided on their divorce pursuant to Article 166/3 of the Turkish Civil Code, and the judgment was appealed by the defendant. Until the decision on uncontested divorce becomes final, there is no legal provision preventing the spouses from withdrawing their declarations of will covering the arrangements accepted regarding both the financial consequences of the divorce and the situation of the children. In this case, the divorce case should be treated as a “contested divorce case”.(…) COURT OF CASSATION 2nd Civil Chamber Case No: 2016/8375 Decision No: 2017/14574 Date: 14.12.2017
In conclusion, both contested and uncontested divorce types can occur due to the fundamental breakdown of the marital union. In both cases, the judge’s discretionary power and the claims and defenses of the parties play a decisive role in shaping the process.
Judicial Process in Severe Incompatibility Cases
Filing a Lawsuit and Burden of Proof
A divorce case due to the fundamental breakdown of the marital union can be filed by either spouse according to Article 166/1 of the Turkish Civil Code. As the right to file a lawsuit is a strictly personal right, this right must be exercised by the spouses themselves. The lawsuit is filed in the competent Family Court, and claims and evidence regarding the fundamental breakdown of the marital union are presented in the petition.
(…) The plaintiff woman could not prove the facts that the defendant man insulted and inflicted violence on her. The events that caused the breakdown of the marital union are not of a nature to violate the personal rights of the plaintiff woman. Considering that the conditions of Article 174/2 of the Turkish Civil Code are not met in favor of the plaintiff woman, the request for moral compensation by the plaintiff woman should have been rejected, and it was not correct to accept the request.(…) 2nd Civil Chamber Case No: 2015/11000 Decision No: 2016/1176 Date: 21.01.2016
It should be noted that according to Article 184 of the Turkish Civil Code, the judge applies the principle of ex officio investigation in divorce cases. Therefore, the judge can conduct necessary investigations and collect additional evidence without being bound by the evidence presented by the parties.
(…) Secondly, listing and showing all events that shake the marital union one by one in the petition is not mandatory in terms of procedural law. What is mandatory is showing summaries of the facts that form the basis of the claim in the petition. In a divorce case based on the breakdown of the marital union, a bundle of events or events that fundamentally shake the union (whether they are mentioned in the petition or not) is brought before the judge. Among these events, the judge does not have the opportunity to say, “The plaintiff reported this event in the petition, did not report that one, so even if the unreported event is proven, I will not consider it.” The rule that “the judge is bound by the material facts brought by the parties” cannot justify such an approach. In a case based on the breakdown of the marital union, the judge’s being bound by material facts is in terms of the cause of action. COURT OF CASSATION 2nd Civil Chamber Case No: 2015/2733 Decision No: 2015/17206 Date: 01.10.2015
Judge’s Discretionary Power
In cases of fundamental breakdown of the marital union, the judge has broad discretionary power. According to Article 4 of the Turkish Civil Code, “In matters where the law grants discretionary power or orders consideration of the requirements of the situation or just causes, the judge decides according to law and equity.” This provision determines the role of the judge in divorce cases.
“(…) The judge cannot consider events shown for divorce as proven unless he is conscientiously convinced of their existence. Even the acceptance of both parties on this matter does not bind the judge. The judge freely evaluates the evidence presented.(…) COURT OF CASSATION GENERAL ASSEMBLY Case No: 1999/1032 Decision No: 1999/1048 Date: 15.12.1999
Additionally, according to Article 166/2 of the Turkish Civil Code, the evaluation of the defendant’s objection in case the plaintiff’s fault is more severe is also within the scope of the judge’s discretionary power. The judge evaluates whether this objection is based on just causes and whether it is in the nature of abuse of right.
Consequences of Divorce Due to Severe Incompatibility
Financial Consequences
Divorce due to the fundamental breakdown of the marital union has important financial consequences. According to Article 174 of the Turkish Civil Code, the innocent or less faulty party whose existing or expected benefits are damaged due to divorce may demand appropriate material compensation from the faulty party.
“(…) From the collected evidence; it is understood that while the defendant woman insulted her husband with harsh words, the plaintiff husband opposed his wife’s desire for a spiritually independent residence and remained silent about his family’s interference in the marital union. In this case, it should be accepted that both parties are equally at fault in the events that caused the fundamental breakdown of the marital union. Given this situation, considering the defendant woman as heavily at fault and, based on this fault determination, deciding to reject the defendant woman’s request for alimony has been inappropriate and requires reversal.(…)”General Assembly Case No: 2012/1084 Decision No: 2013/401 Date: 27.03.2013
According to Article 175 of the Turkish Civil Code, the party who will fall into poverty due to divorce may demand alimony indefinitely from the other party in proportion to their financial power for their subsistence, provided that they are not more at fault. It should be noted that the fault of the alimony obligor is not sought.
(…) The weight of fault in the events that caused the fundamental breakdown of the marital union lies with the defendant. Alimony cannot be awarded in favor of the spouse who is heavily at fault. In the face of this realized situation, it is inappropriate to make a judgment in the written manner instead of rejecting the alimony requested by the woman.(…) 2nd Civil Chamber Case No: 2002/11461 Decision No: 2002/12540 Date: 18.11.2002
Custody of Children
The effect of divorce on children is one of the most important legal consequences. According to Article 182 of the Turkish Civil Code, when deciding on divorce or separation, the court must grant custody of the children to one of the spouses. The best interest of the child is the primary consideration in determining custody rights.
General Assembly Case No: 2017/2446 Decision No: 2019/80 Date: 07.02.2019
(…) The psychologist expert stated that as a result of the interviews, the mother was willing to take custody, and although the mother was competent to meet the emotional needs of the children, there were doubts about how she would meet the care and education needs of the children due to her frequent changes in statements about her lifestyle and income level.
The main thing in regulating custody is to protect the interest of the minor and secure their future. For this reason, every event that hinders the physical and mental development of the child and is understood to be continuous should be evaluated considering the magnitude of the danger and the irreparable consequences it may cause; the child’s interest should be primarily considered in determining and regulating custody.
Therefore, when all evidence is evaluated together, considering that the defendant-joined plaintiff mother’s sense of responsibility is not fully developed, thus she will be inadequate in fulfilling the custody duty, and granting the custody right to the plaintiff-joined defendant father would be in the best interest of the minors, we do not agree with the opinion of the majority in approving the local court’s decision.(…)
The right of the spouse who is not granted custody to maintain personal relations with the child is regulated in Article 182/2 of the Turkish Civil Code. The child’s interest is also the primary consideration in regulating this relationship. Additionally, the spouse who is not granted custody is obliged to contribute to the child’s care and education expenses.
(…) Establishing personal relations between the minor A, born on 20.9.1997, and her defendant father every weekend will not only make the plaintiff mother home-bound but also prevent her from properly exercising her custody right. While personal relations should be established between the defendant father and the minor on certain weeks of the month, deciding in the written manner is contrary to procedure and law and requires reversal.(…) 2nd Civil Chamber Case No: 2005/3190 Decision No: 2005/4978 Date: 28.03.2005
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Divorce Due to Severe Incompatibility
