What is High-Conflict Divorce Under Turkish Law?
One of the most common types of lawsuits today is divorce. Divorce occurs through a lawsuit filed by one or both spouses together. Divorce cases can be contested or uncontested. In the petition, the parties can base their claims on general or specific divorce reasons, limitedly enumerated in the Turkish Civil Code (TCC), and a divorce case cannot be filed based on reasons other than these. High-conflict divorce is a general divorce reason and is defined in the law as a fundamental breakdown of the marital union, and the reasons are not limited in number. The judge may evaluate any allegation presented by the parties under the scope of high-conflict divorce. In this article, general divorce reasons will be defined, their conditions and application procedures will be examined, and frequently asked questions about the subject will be addressed.
General divorce reasons are reasons not limitedly enumerated in the law or can be interpreted by the judge based on the course of events. It arises when the fundamental unity of the marriage is shaken due to a situation that the spouses may encounter in the normal course of life, and this unity becomes intolerable for at least one of the spouses. General divorce reasons can be examined by highlighting two elements.
Fundamental Breakdown of the Marital Union
The question "what does the fundamental breakdown of the marital union mean?" is frequently asked by couples who want to divorce. In summary, it can be defined as the termination of the spouses' belief in the essence of marriage. For this reason, a fault is not necessarily sought for the occurrence of this reason for divorce. An unforeseeable and uncontrollable event may also lead to the fundamental breakdown of the marital union. If one of the spouses initiates a divorce lawsuit, and the other spouse accepts the case or the spouses file a joint divorce lawsuit, it is deemed that the fundamental unity of the marriage is shaken. In such cases, the judge may decide on the divorce through an uncontested divorce.
For divorce based on high-conflict, the marriage must have become intolerable for the spouses. High-conflict divorce reasons are not limited in number and the actions taken will be evaluated based on the nature of the concrete case. If integrity within the union has been disrupted, and the spouses have reached a point that harms them functionally, then the fundamental breakdown of the marriage is at stake. Indeed, feelings such as respect and trust between spouses have come to an end, and high-conflict divorce, insults, and avoidance of marital duties occur. According to Turkish Civil Code Article 166/3, for such a divorce case to be filed, the marriage union must have lasted for at least 1 year. The aim here is to prevent divorce without the parties getting to know each other well.
Requirements for High-Conflict Divorce
When it comes to general divorce reasons, drawing the boundaries is almost impossible because each marriage has different values and limits. It is also difficult to present reasons that would have the same effect for every marriage. Thus, giving discretion to the judge in this regard allows for an evaluation of the effects of the reasons on the marital union. The judge will decide whether the conditions of high-conflict divorce are present in the case that comes before them. Therefore, general divorce reasons provide the judge with an area for evaluation and are relative.
Simultaneous Invocation of General and Special Divorce Reasons
It is possible to strike a balance between general and special divorce reasons. When filing for divorce based on both special and general reasons, confusion may arise about which reason will be considered primary and which reason will be considered incidental. Similarly, according to the decision of the Court of Cassation in a divorce case filed based on both special and general divorce reasons, the legal consequences will vary. Therefore, it should be determined first whether there are any special divorce reasons. If the reason exists, a judgment must be made based on that reason. If the special divorce reasons do not occur, or the right to file a case based on special divorce reasons has expired, a judgment should be made based on the general reason. (Court of Cassation 2nd Civil Chamber, 29.06.2010, K. 2010/12941, E. 2009/8440)
Procedure for Adjudication in Divorce Cases Based on General Divorce Reasons
In divorce cases based on high-conflict divorce, the competent court is the place of residence of one of the spouses or the court of the place where the spouses have resided together for at least 6 months before the lawsuit. The spouse(s) seeking divorce files a divorce petition, in which the divorce reasons and evidence are specified. For example, the divorce petition should mention high-conflict divorce and the petition should be constructed accordingly. It should be noted that the judge cannot investigate or take into account a fact not raised by the parties within the scope of the principle of bringing the case. However, the judge can investigate and use the facts put forward by the parties in the case. If the divorce case is filed based on special divorce reasons, it is not necessary to prove that the parties are at fault to grant a divorce. The proof of special divorce reasons is sufficient for granting a divorce. However, in general divorce reasons, it is expected that the parties prove each other's faults. If the defendant's fault is more severe than the plaintiff's fault under TCC 166/2, the defendant has the right to object to the case. However, if no value to be protected within the marriage union is left, and if this objection right carries the nature of abuse, the judge can decide on the divorce.
According to Turkish Civil Code Article 184; the facts on which the divorce case is based will not be deemed proven unless the judge is convinced of their existence. Additionally, it should be noted that the judge cannot offer an oath to the parties during the trial. Also, the confession of the parties will not bind the judge. For example, if one of the parties states that there is high-conflict divorce or very bad behavior, it does not mean that the fact is proven. The judge will evaluate the case based on their conscience. Under normal circumstances, the trial is conducted openly as a procedure, but upon the request of one of the parties, the trial can be conducted secretly.
In divorce cases based on high-conflict divorce, proving the existence of the reason is crucial. Following the case calmly and taking crucial steps when necessary are essential in divorce cases. Otherwise, divorce cases can cause significant damages. Because divorce cases come with challenging situations depending on the type of lawsuit and the reason for divorce. In this regard, consulting a divorce lawyer in Turkey is essential to minimize the negative impact of divorce and act planned during the trial.