What Are the Rights of Women in Divorce Proceedings?
1.Custody Right
According to Article 336/3 of the Turkish Civil Code, custody is a right granted for the purpose of raising, supporting the personal development, and protecting the various interests of the minor child. In the event of the death of one of the parents, custody passes to the surviving parent; in divorce cases, it is granted to the spouse to whom the child is assigned.
Under this right, responsibilities such as the child’s care, safety, education, and upbringing belong to the parent who holds custody, in line with the child’s best interests.
Accordingly, in a divorce case, the woman may request custody either within the same case or after the proceedings.
2.Right to Alimony
In Turkish law, alimony is a regular financial support ordered by the court, taking into account the degree of fault of the parties. It is divided into three categories: poverty alimony, interim (provisional) alimony, and child support (maintenance) alimony.
a. Poverty Alimony
Poverty alimony is a type of maintenance awarded when one of the parties is expected to fall into poverty as a result of the dissolution of marriage through divorce. Contrary to common belief, poverty alimony is not granted exclusively to the wife; if it is proven that the husband will fall into poverty after the divorce, it may also be awarded to him.
By its nature, poverty alimony is subject to a request and is not awarded ex officio by the judge.
b. Interim (Provisional) Alimony
Interim alimony is a type of maintenance granted to ensure the livelihood of one of the parties or the minor joint children during the divorce proceedings, and it remains valid until the end of the case.
In this context, it should be noted that interim alimony does not depend on a request and may be awarded ex officio by the judge.
c. Child Support (Maintenance Alimony)
Child support, also known as maintenance alimony, is the type of alimony that replaces interim alimony after the divorce is finalized and can only be claimed for the maintenance of the joint children.
Accordingly, child support is ordered against the spouse who does not have custody, for the purpose of covering the child’s expenses, and becomes effective from the date the divorce becomes final.
As a rule, the court may also award child support ex officio, without requiring a request.
3.Right to Material and Moral Compensation
In divorce proceedings, material compensation refers to compensation claimed by the less at-fault or blameless party whose interests have been harmed due to the divorce. Moral compensation, on the other hand, is the compensation claimed by the party whose personal rights have been violated against the other party.
Accordingly, in a divorce case, the woman has the right to file a compensation claim in accordance with the explanations above and depending on the circumstances of the case.
4.Right to Establish Personal Contact with the Child
The right to establish personal contact with the child is a right regulated under Article 323 of the Turkish Civil Code (TMK), which enables the parent who does not have custody to maintain a relationship with the child through regular visitation.
It should also be noted that the right to personal contact is taken into account ex officio by the judge.
5.Right to Claim Jewelry Assets
After a divorce case, the question of who is entitled to the wedding jewelry is examined in the decision of the 2nd Civil Chamber of the Court of Cassation dated 04.04.2024, case no. 2023/5704 and decision no. 2024/2402, depending on whether there is an agreement between the parties, the existence of local customs and traditions, or the absence of such agreement or customs.
Moreover, the issue of ownership of jewelry after divorce is a matter in which the higher courts do not yet have a fully settled and consistent practice, and different decisions may be rendered from time to time. For example, in the decision of the 2nd Civil Chamber of the Court of Cassation dated 19.11.2018, case no. 2017/1769 and decision no. 2018/13037, it was stated that: “Jewelry presented to the wife during the marriage is deemed to have been gifted to her, regardless of who purchased it, and thus becomes her personal property.”
In contrast, in the most recent decision of the 2nd Civil Chamber of the Court of Cassation dated 04.04.2024, case no. 2023/5704 and decision no. 2024/2402, it is regulated that: “If there is an agreement between the parties regarding the division of jewelry, the distribution shall be made in accordance with that agreement. If no such agreement exists, and the existence of local custom and tradition is proven, distribution shall be made according to such custom. Otherwise, all items of economic value given or presented to the man or woman are, as a rule, deemed to belong to the person to whom they were given. However, if an item is specific to one gender (female or male), it is deemed to have been given to that gender. If there is a dispute regarding whether an item is gender-specific, an expert examination shall be conducted if necessary. If, as a result of expert examination, it is determined that the item is common to both genders, it shall belong to the spouse to whom it was given. Regarding items of economic value placed in a jewelry box or bag, if the item is specific to one gender, it is deemed to belong to that gender; if it is determined to be common to both genders, it shall be considered joint property.”
Accordingly, the division of jewelry is carried out as explained in current case law, and in divorce proceedings the woman has the right to claim the return of jewelry either in kind or in cash based on her entitlement to jewelry assets.
6.Right to Request the Return of Personal Belongings
In a divorce case, a woman who is unable to obtain her personal belongings has the right to request the return of the relevant items from the court.
In this regard, it should be noted that the items that may be requested from the court are limited to the woman’s personal property; therefore, they include only items intended for her individual use.
7.Right to Request an Annotation of Family Residence
The right to request an annotation of family residence is a highly important right for women in divorce proceedings in order to prevent victimization.
Accordingly, the non-owning spouse may apply to the land registry office to request a family residence annotation in order to prevent the transfer of the residence to a third party or the establishment of a mortgage on it without the consent of the other spouse.
8.Right to Request Allocation of the Matrimonial Home
As a result of filing a divorce case, the allocation of the matrimonial home to one of the parties during the proceedings becomes an issue.
Accordingly, it should be noted that in divorce proceedings, the woman may request that the matrimonial home be allocated to her.
In this regard, when deciding which spouse will benefit from the matrimonial home, the judge takes into consideration factors such as the parties’ employment status, age and health conditions, which spouse the joint children live with, and their ability to find a new residence.
9.Right to Claim Rights Arising from the Matrimonial Property Regime
In a divorce case, the woman may file a lawsuit regarding the division of property after the divorce is concluded, or she may also file a claim for rights arising from the matrimonial property regime at the same time as filing the divorce case.
However, the filing of such a lawsuit depends on submitting a properly prepared petition to the court, specifying which assets are claimed and how they should be divided.
In this regard, the parties may need a divorce lawyer or a divorce lawyer in Antalya to file and pursue the relevant case.
10.Right to Request a Lawyer from the Bar Association
In divorce proceedings, as stated in Article 334 of the Code of Civil Procedure (HMK): “Persons who, without seriously jeopardizing the maintenance of themselves and their family, are unable to partially or fully pay the necessary litigation or enforcement costs may benefit from legal aid in their claims and defenses, requests for interim legal protection, and enforcement proceedings, provided that their claims are not manifestly unfounded.”
Accordingly, in a divorce case, a woman has the right to receive free legal assistance by applying to legal aid offices.
11.Right to Request a Protection Order
As regulated under Law No. 6284 on the Protection of the Family and Prevention of Violence Against Women, there are various measures and precautions aimed at protecting women, children, family members, and individuals who are victims of unilateral persistent stalking who have been subjected to violence or are at risk of being subjected to violence.
Examples of measures that may be requested in this context include changing the workplace, immediate removal from the shared residence and allocation of the shared residence to the protected person, prohibition on approaching the protected person’s school or workplace, and requiring the person against whom a protection order has been issued to surrender their firearms to law enforcement even if legally permitted to possess them.
In addition, the judge may consider requests for such protective measures and may also, taking into account the circumstances of the case, order the implementation of measures determined ex officio.
12.Right to Change Surname
The right of a woman to change her surname is regulated under Article 173 of the Turkish Civil Code (TMK), as cited below:
“In the event of divorce, the woman retains the personal status acquired through marriage; however, she regains her maiden surname. If the woman was widowed before marriage, she may request permission from the judge to continue using her maiden surname.
If it is proven that the woman has a legitimate interest in using her divorced husband’s surname and that this does not cause any harm to the husband, the judge, upon her request, may allow her to continue using his surname. The husband may request the revocation of this permission if circumstances change.”
In relation to this right, it should be noted that the woman may request to use the surname during the divorce proceedings, or alternatively, she may also file a separate lawsuit after the divorce has been finalized.
13.Right to Request Restriction of Disposal Authority
The right to request the restriction of disposal authority is regulated under Article 199 of the Turkish Civil Code (TMK). It is a measure requested by one spouse when the other spouse fails to protect the family’s economic assets or does not fulfill the financial obligations arising from the marriage, and it is ultimately ordered by the court.
Accordingly, the spouse subject to such a decision may dispose of their assets only with the consent of the other spouse.
Frequently Asked Questions
1.Can a Woman Use Her Husband’s Surname After Divorce?
Pursuant to the provision of Article 173 of the Turkish Civil Code (TMK) cited above, a woman may continue to use her former husband’s surname after divorce if she proves that she has a legitimate interest in doing so and that this does not cause any harm to her former husband.
In addition, it should be noted that this right may be granted only upon the woman’s request and by a court decision.
2.Can a Woman Claim Rights from Her Spouse’s Companies in a Divorce Case?
According to Turkish family law, property division is a type of legal proceeding in which the parties’ assets are distributed in accordance with the applicable matrimonial property regime, and it may be heard either together with the divorce case or separately.
Accordingly, in a divorce case, a woman may claim rights over her spouse’s companies, provided that the separation of property regime is not in effect during the marriage.
3.How Is a Family Residence Annotation Placed in a Divorce Case?
A family residence annotation is a restriction placed on a property to ensure that one spouse cannot terminate the lease of the family home, transfer the family home, or limit rights over it without the explicit consent of the other spouse.
Accordingly, the family residence annotation is placed through a written application submitted to the land registry office together with the required documents.
In this regard, it is also possible to place a family residence annotation on rented properties.
4.What Factors Affect Custody Decisions in a Divorce Case?
When determining which parent will be granted custody, the court primarily considers the best interests of the child. In this context, factors such as the child’s age, physical and mental development, sibling situation, and the parent with whom the child wishes to live (generally for children aged 8–10 and above), as well as the socio-economic conditions of the parties, are taken into account.
Accordingly, the judge makes a decision regarding the assignment or modification of custody by evaluating such factors.
Court of Cassation Decisions Regarding Women’s Rights in Divorce Proceedings
- “…It is understood that while a 1/6 share of the immovable property was registered in the name of Emine Ç., the mother of the defendant-plaintiff husband, it was transferred by sale and registered in the name of the defendant-plaintiff Mustafa Ali on 17.08.2005. Since the properties subject to liquidation were purchased in the name of the defendant-plaintiff husband during the period in which the regime of participation in acquired property was in force, they are deemed to be acquired property under the statutory presumption, and the burden of proving otherwise lies with the defendant-plaintiff husband (TMK Art. 6, HMK Art. 190). Therefore, although the burden of proving that the properties are personal property rests with the defendant-plaintiff husband, the court’s decision based on the erroneous assessment that the burden of proof lay with the plaintiff-defendant wife was incorrect and required reversal…” (Court of Cassation, 2nd Civil Chamber, decision dated 13.06.2022, case no. 2022/3443, decision no. 2022/5629)
- “In the present case, the defendant husband argued that the jewelry claimed by the plaintiff wife had been used during the marriage for wedding debts and medical expenses related to having children. However, he was unable to prove that the plaintiff wife had given them with her consent on a non-return basis. In this situation, as also accepted by the court, it is undisputed that the defendant husband failed to prove that the jewelry used for joint needs had been given to him voluntarily and without any obligation of return; therefore, he is obliged to return the jewelry in question. However, pursuant to Article 188 of the Code of Civil Procedure (HMK), ‘Facts admitted by the parties or their attorneys before the court are no longer disputed and do not require proof.’ In his statement of defense, the defendant party stated that a total of 12 bracelets were given during the wedding. Accordingly, the fact that 12 bracelets were given to the plaintiff wife at the wedding is no longer disputed. Therefore, the court should have taken this principle into account and, considering the defendant’s admission regarding the number of bracelets given to the plaintiff, ruled in favor of the claim based on a total of 12 bracelets. Instead, by failing to consider the defendant’s admission that 5 bracelets were given during the wedding and basing its decision only on 7 bracelets, the court reached an incorrect conclusion, which necessitated reversal…” (Court of Cassation General Assembly of Civil Chambers, decision dated 04.03.2020, case no. 2017/1040, decision no. 2020/240)
- “In light of all these general explanations, when the present case is assessed, the husband admitted regarding the disputed jewelry that ‘during the marriage, these items were exchanged for cash and spent, but the quantity of the jewelry was not as claimed.’ In this situation, it is understood that the husband bears the burden of proving that these items—considered the wife’s personal property—were either returned or taken without any obligation of return; however, he failed to fulfill this burden of proof. In such a case, the court should collect the evidence submitted by the wife regarding the existence, type, quality, number, and quantity of the jewelry items subject to the claim; if necessary, all witnesses of the parties should be re-heard regarding this issue to clarify their direct knowledge and observations about the jewelry items; and, if required, an expert examination should be conducted to determine the value of the jewelry items proven to exist without raising doubt or uncertainty as of the date of the lawsuit. Only after evaluating all collected evidence should a decision be made. Instead, dismissing the case on the grounds that it was not proven, without considering these principles, is contrary to procedural law and substantive law and requires reversal.” (Court of Cassation General Assembly of Civil Chambers, decision dated 30.03.2021, case no. 2017/2715, decision no. 2021/360)
- “Accordingly, since there is no doubt that the property in question qualifies as a family residence, and since the mortgage established on the property without the explicit consent of the plaintiff, in violation of Article 194/1 of the Turkish Civil Code (TMK), has no binding effect, it is in line with the purpose of the said provision to annul the land registry record of the property sold to the defendant bank through enforcement proceedings and to register it in the name of the defendant spouse, Giyasettin. The fact that the name of the defendant … was written as Gıyasettin in the short judgment and in the operative part of the reasoned decision was considered a material clerical error that can be corrected locally. During the deliberations of the General Assembly of Civil Chambers, it was argued that the case was based on Article 194 of the TMK and decided accordingly; that in voluntary dispositions, a lawsuit for cancellation and registration of title based on the claim of family residence may be filed; that Article 194 of the TMK cannot be applied to enforcement sale transactions under Article 705 of the same Code; that the property subject to the dispute had already been registered in the name of the bank through a finalized auction before the date of the lawsuit; that at the time of the lawsuit the property was no longer a family residence; that the reasoning of the dissent referred to the principle of causation and unlawful registration; and that a family court cannot examine allegations of unlawful registration. Although it was argued that, for these reasons, the resistance decision should be reversed, this view was not accepted by the majority of the Board for the reasons explained above. Therefore, in light of the principles and reasoning set out above, the resistance decision is in accordance with procedure and law and must be upheld.” (Court of Cassation General Assembly of Civil Chambers, decision dated 28.11.2019, case no. 2019/318, decision no. 2019/1238)
- “Based on the collected evidence, it is understood that the parties were married for 26 years, and that during this period the plaintiff wife graduated from various universities and used her marital surname in her diplomas, master’s theses, participation certificates, certificates, banking transactions, and retirement procedures. It has been proven through the evidence that the plaintiff’s use of the defendant’s surname would not cause any harm to the defendant, and that the plaintiff has a legitimate interest in continuing to use the defendant’s surname. The conditions set out in Article 173/2 of the Turkish Civil Code have therefore been met. Instead of accepting the claim, the dismissal of the case on insufficient grounds was not considered correct.” (Court of Cassation, 2nd Civil Chamber, decision dated 19.03.2009, case no. 2007/19005, decision no. 2009/5094)
