Is a Spouse Who Abandons the Home Considered at Fault in Turkish Law?

Is a Spouse Who Abandons the Home Considered at Fault?

In marriages, it is essential for spouses to live together and fulfill their mutual responsibilities. However, sometimes one spouse may leave the home due to problems experienced within the marriage. In this case, whether the spouse who left the home is at fault or not and the effect of this situation on the divorce process becomes a matter of discussion. Within the framework of the Turkish Civil Code, whether the spouse who left the home will be considered at fault depends on the reason and conditions of leaving.

 

According to the Turkish Civil Code (TMK), “fault” refers to a person being held legally responsible for not fulfilling their legal obligations or causing harm to another person. Fault occurs when an action is carried out intentionally or negligently in a manner contrary to the law, and it generally comes up in divorce cases when one of the parties violates their marital obligations. The party at fault may be obligated to pay compensation or alimony to the other party.

 

To understand why it is important whether the spouse who left the home is at fault or not, the elements of divorce due to abandonment regulated in TMK Article 164 should be examined first. The following situations are considered abandonment in the Turkish legal system:

• One spouse leaving the other spouse with the intention of not fulfilling marital obligations
• Not returning to the shared home without a justifiable reason
• Forcing the other spouse to leave the shared home
• Preventing the other spouse from returning to the shared home without a justifiable reason

As seen, there is a precondition in the article that not returning to the shared home and preventing return to the shared home must be based on a justifiable reason. If it is based on a justifiable reason, the spouse who left the home will not be considered at fault. The spouse not being at fault means that the spouse who left will not be subject to sanctions that will occur due to divorce in a divorce case filed due to abandonment.

Note: Although the word “abandonment” is understood as the act of leaving the house, a spouse who prevents the other spouse from returning to the shared home without a justifiable reason is also considered to have abandoned the home.

Note: For filing a divorce case due to abandonment, it is not enough for the spouse to have left the home in a faulty manner. In addition to this, a warning must also be issued.

 

Situations Where Leaving the Home is Considered a Fault

Whether the spouse who left the home is considered at fault depends on whether the abandonment is based on a valid reason. Under this heading, situations where a spouse’s leaving the home can be considered a fault are discussed.

Abandonment Without a Valid Reason: If one of the spouses leaves the home without a justifiable reason, in this case, the spouse who left is considered at fault. For example, simple family disagreements are not a valid reason for abandonment.

Long-Term Separation: If one of the spouses stays away from home for a long time and this separation harms the marital union, it is possible for the spouse who left to be considered at fault.

Refusal to Continue Shared Life: If one of the spouses avoids continuing the shared life, resulting in leaving the home, it is possible for the spouse who left to be considered at fault.

Causing the End of Shared Life: If the spouse who left the home ends the shared life with this action, they can be considered at fault.

Unfounded Claim of Violence and Mistreatment: If the spouse who left the home has left claiming violence or mistreatment and these claims turn out to be unfounded, they can be considered at fault.

Notification of Leaving the Home: If one of the spouses leaves the home without notifying the other, this situation can be considered a fault.

Weakening the Marital Union: If the spouse who left the home weakens the marital union with this behavior, in this case, they can be considered at fault.

Material and Moral Damage: If the behavior of the spouse who left the home causes material and moral damage to the other spouse, they can be considered at fault.

Situations Where Leaving the Home is Not Considered a Fault

A spouse’s leaving the home may not always be considered a fault. Especially in situations such as violence, threats, or when shared life becomes unsustainable, the spouse who left may be considered justified. Under this heading, situations where leaving is not considered a fault are examined.

Violence and Threats: If one of the spouses has been subjected to physical or psychological violence by the other spouse and had to leave the home for this reason, the spouse who left is not considered at fault.

Being Expelled from Home: If one of the spouses has been expelled from the home by the other spouse or if it has become impossible for them to stay at home, in this case, the spouse who left is considered justified and not at fault.

Shared Life Becoming Unsustainable: If one of the spouses leaves the home because the shared life has become unsustainable due to the behavior of the other, this situation means that the spouse who left is not at fault.

Material and Moral Necessities: If one of the spouses has been under severe material or moral pressure and had to leave the home for this reason, this situation cannot be considered a fault.

Leaving with the Spouse’s Consent: If one of the spouses has left the home with the consent of the other, in this case, it is not possible for the spouse who left to be considered at fault.

Medical Reasons: If one of the spouses had to leave the home due to health problems, this situation cannot be considered a fault.

Leaving for the Safety of Children: If one of the spouses has left the home to ensure the safety of the children, in this case, they are not considered at fault.

Unfair Behavior of the Spouse: If one of the spouses had to leave the home due to the unfair and illegal behavior of the other spouse, in this case, the spouse who left is not considered at fault.

Deterioration of Living Conditions in the Shared Home: If one of the spouses had to leave the home because the living conditions in the shared home deteriorated, this situation cannot be considered a fault.

 

Legal Consequences of the Spouse Who Left the Home Being Considered at Fault

The spouse who left the home being found at fault can lead to various legal consequences in the divorce process. Under this heading, legal consequences such as custody, alimony, property division, and compensation are detailed.

Custody Rights: In case the spouse who left the home is found at fault, custody of the children is usually given to the other spouse. The court makes this decision considering the best interests of the child.

Obligation to Pay Alimony: The spouse found at fault may have to pay alimony to the other spouse. This alimony is determined according to the fault ratio of the spouse who left and the economic situation of the other spouse.

Loss of Rights in Property Division: In case the spouse who left is found at fault, this situation is taken into account during property division and the share of the spouse who left may be reduced. This stands out as an important factor in the liquidation of the property regime.

Material and Moral Compensation: The spouse at fault may be obligated to pay material and moral compensation to the other spouse. This compensation aims to cover the damage experienced during the divorce process.

Use of the Family Home: In case the spouse who left the home is found at fault, the court may decide to allocate the family home to the other spouse. This is a valid practice especially for the spouse who gets custody of the children.

Right to Establish Relationship with Children: The right of the faulty spouse who does not get custody to establish a relationship with the children may be limited or a decision for supervised visitation may be made. The court can take such measures to protect the psychological and physical health of the child.

 

Evidence to Prove Whether the Spouse Who Left the Home Will Be Considered at Fault

In divorce cases, determining whether the spouse who left the home will be considered at fault is possible with the evidence presented. The court makes a decision by considering the evidence supporting the claims of the parties. Below is a list of various evidence that can be used in such situations:

Witness Statements: Testimonies of family members, neighbors, or close friends regarding the reason for the spouse leaving the home are accepted as important evidence in court.

Phone and Message Records: Communication records between spouses can be used to clarify the reason and process of leaving. These records can support the explanations made by the spouse while leaving the home.

Physical and Psychological Violence Reports: If the abandonment is based on reasons such as violence or threats, doctor reports, police reports, or prosecutor complaints documenting this situation can be presented as important evidence.

Police and Prosecutor Records: Any previous police application or prosecutor record made regarding the spouse leaving the home can be used to prove the event of leaving and its reasons.

Hospital Records: In case one of the spouses claims to have left the home due to health problems, hospital records and doctor reports supporting this claim can be presented as evidence.

Psychologist and Family Counselor Reports: Psychologist or family counselor reports regarding the professional support received by the spouses during the marriage process can help in understanding the reason for leaving.

 

Examination of Supreme Court Civil Chamber Decision on Whether the Spouse is at Fault

SUPREME COURT SECOND CIVIL CHAMBER Case: 2022/11473 – Decision: 2023/2275 – Date: 09.05.2023

This decision focuses on the element of “fault” in a divorce case filed due to abandonment.

1- Claims of the Plaintiff Man: The plaintiff man claimed that the defendant woman caused the foundation of the marital union to be shaken because during the period when he was receiving cancer treatment, the defendant woman distanced herself from him, left the home, and did not return.

2 – First Instance Court Decisions: The First Instance Court stated that the fault of the defendant woman could not be proven and that the plaintiff acted contrary to the principle of loyalty, finding the plaintiff completely at fault and deciding to dismiss the case.

3 – Regional Court of Appeal Decision: The Regional Court of Appeal overturned the decision of the First Instance Court, stating that the defendant left the home and did not return despite the plaintiff’s insistence, finding the woman completely at fault. Therefore, the plaintiff man’s appeal request was accepted and divorce was decided.

4 – Supreme Court Decision: The Supreme Court emphasized that fault cannot be attributed to the defendant woman because there is no evidence that the defendant woman left the home without a justifiable reason. Furthermore, it stated that for a divorce decision to be made, it must be proven that the defendant is at least slightly at fault, but such fault could not be proven.

As a result, the Supreme Court decided that the Regional Court of Appeal made a mistake in determining fault and that the plaintiff man’s divorce case should be rejected. In this case, it was concluded that the defendant woman was faultless and the plaintiff’s demands should be rejected.

 

In divorce cases in Turkey, whether the spouse who left the home will be considered at fault is evaluated separately in each concrete case. Legal consequences arise by considering under which conditions the spouse who left the home left and the effect of this situation on the marital union. Therefore, it is of great importance to get support from an expert lawyer during the divorce process.

 

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