What Is a Contested Divorce Case?

Divorce cases can be categorized as uncontested (mutual) divorce or contested divorce. A contested divorce occurs when one of the spouses wishes to end the marriage, but the other party either does not agree to the divorce itself or disagrees on related matters such as property division, child custody, compensation, or alimony. In a contested divorce case, both parties present their own demands and explanations regarding these issues to the court, aiming to obtain a decision in their favor.

On What Grounds Can a Contested Divorce Case Be Filed?

A contested divorce case can be based on a single ground or multiple grounds for divorce. In the Turkish Civil Code, the grounds for divorce are divided into two categories: general grounds regulated under Article 166, and specific grounds regulated between Articles 161 and 165.

A. General Grounds for Divorce

The general grounds for divorce, as stated in Article 166 of the Turkish Civil Code, include an unlimited number of reasons that cannot be individually listed in the law, such as severe incompatibility, insults, violence, disrespect towards the family, coercion into sexual intercourse without consent or in an inappropriate manner, failure to contribute to the household financially, behavior that undermines trust, and failure to fulfill marital obligations. These general grounds for divorce are categorized under subheadings such as the breakdown of the marital union and the impossibility of reestablishing a shared life.

1.Breakdown of the Marital Union

The breakdown of the marital union refers to a ground for divorce claimed when the continuation of the marriage becomes unsustainable due to various circumstances. In addition to the situations mentioned above, this includes reasons such as excessive debt, working in inappropriate jobs, and gambling.

2.Inability to Re-establish Marital Life

Another general ground for divorce is the “inability to re-establish marital life,” which refers to the ongoing de facto separation between the spouses and the existence of circumstances indicating that it is unreasonable or impossible to expect them to continue their marriage.

The duration of the required de facto separation has been reduced from three years to one year following the Constitutional Court’s annulment decision dated February 22, 2024, regarding Article 166/4 of the Turkish Civil Code (Official Gazette dated April 19, 2024; No: 32522).

With this amendment, the updated Article 166/4 now states:
“If a divorce case filed on any of the grounds for divorce is rejected and one year has passed since the finalization of this decision, and for any reason the common life could not be re-established, the marital union shall be deemed to have been irretrievably broken down, and divorce shall be granted upon the request of one of the spouses.”

B. Specific Grounds for Divorce

The legislator has outlined specific grounds for divorce between Articles 161 and 165 of the Turkish Civil Code (TMK) as follows: “Adultery,” “Attempt on Life, Severe Ill-treatment or Insult,” “Committing a Crime and Leading a Dishonorable Life,” “Desertion,” and “Mental Illness.”

Unlike general grounds for divorce, a party claiming at least one of these specific grounds is not required to prove the severity or fault of the other party’s act or behavior. Therefore, proving the mere existence of one or more specific grounds is sufficient for the court to grant a divorce.

1.Adultery

Adultery is a specific, fault-based, and absolute ground for divorce regulated in Article 161 of the Turkish Civil Code (TMK): “If one of the spouses commits adultery, the other spouse may file for divorce. The right to file for divorce expires six months after the spouse entitled to file learns of the reason for the divorce, and in any case, five years after the act of adultery. The forgiving spouse has no right to file for divorce.”

According to the principles of compensation law, the injured spouse may claim moral compensation from the spouse who committed adultery. Additionally, as with other grounds for divorce, both specific and general grounds for divorce can be cited in a divorce case. However, if the divorce case is filed solely on the ground of adultery, the judge will only determine whether adultery occurred and will base the decision on that. Any other grounds for divorce that were not requested will not be considered by the judge. On the other hand, if the grounds for divorce are to be changed, it can be done through a formal amendment procedure.

2.Attempt on Life, Cruel or Degrading Behavior

According to Article 162 of the Turkish Civil Code (TMK), either spouse may file for divorce if the other spouse attempts to take their life, treats them in a cruel manner, or engages in severely degrading behavior. The right to file a lawsuit is lost if six months have passed since the spouse learned of the reason for the divorce, and in any case, the right to file expires five years after the occurrence of the incident. A party who forgives the other has no right to file a lawsuit.

This is a special, fault-based, and absolute reason for divorce. In divorce cases, “attempt on life” refers to actions and behaviors indicating the intent to kill. “Cruel behavior” refers to actions that result in harm to the spouse’s health or bodily integrity, while “degrading behavior” refers to actions that humiliate the spouse, such as insulting them.

In a contested divorce case related to this reason, the Court of Cassation, in its decision dated October 15, 2024, Case No. 2024/6726, Decision No. 2024/7394, stated: “Following the retrial after the appellate decision, the lower court has ruled to dismiss both divorce cases. However, based on the collected evidence and witness testimonies, it was established that the male spouse had continuously subjected the female spouse to physical violence, and had left her at her father’s house, stating ‘I don’t want you’. Despite these material facts being proven, no fault was attributed to the male spouse, and the faults attributed to the female spouse could not be proven. It was understood that the male spouse was fully at fault in making the marriage unbearable. Therefore, a serious incompatibility exists between the parties, severely affecting the foundation of the marital relationship and making the continuation of the marriage impossible.”

3.Committing Crimes and Leading a Disreputable Life

This special and fault-based reason for divorce is regulated in Article 163 of the Turkish Civil Code (TMK): “If one spouse commits a degrading crime or leads a disreputable life, and as a result, it is impossible to expect the other spouse to live with them, the other spouse may file for divorce at any time.”

As can be understood from this provision, the crime committed must be degrading. Additionally, it is clear that no time limit for filing a divorce lawsuit is imposed when the reason for divorce is based on “committing crimes and leading a disreputable life.”

Furthermore, in the Court of Cassation’s decision dated March 19, 2015, Case No. 2014/20560, Decision No. 2015/4947, it stated: “It is understood that the parties married on August 8, 2005, and that the defendant was arrested 14 days after their marriage, on August 3, 2005, due to an alleged degrading crime committed, and is still incarcerated for this crime. In this case, there is clear and undeniable marital incompatibility that fundamentally undermines the relationship and makes it impossible to continue the marriage. Given the flow of events, the plaintiff is justified in filing for divorce. In light of these circumstances, it is no longer legally possible to force the spouses to live together, so the rejection of the lawsuit with insufficient justification was incorrect, and a divorce decision (TMK. Art. 166/1) should have been made.”

4.Desertion

Desertion, a special, fault-based, and absolute ground for divorce, is regulated by the legislator in Article 164 of the Turkish Civil Code (TMK): “If one spouse deserts the other with the intention of failing to fulfill the obligations arising from the marriage, or if they do not return to the shared home without a valid reason, and if the separation has lasted at least six months, is ongoing, and a notice issued by a judge or notary has been ignored, the deserted spouse may file for divorce. The spouse who forces the other to leave the shared home or prevents their return without a valid reason is also considered to have deserted.

Upon the request of the entitled spouse, a judge or notary, without examining the merits of the case, will notify the deserting spouse that they must return to the shared home within two months and inform them of the consequences if they fail to do so. This notice may, when necessary, be made via publication. However, no notice can be requested for filing a divorce lawsuit until the fourth month of the specified period has passed, and the lawsuit cannot be filed until two months after the notice.”
As stated in the legal provision, if one spouse deserts the other or fails to return to their shared home without a valid reason (the spouse who forces the other to leave or prevents their return to the shared home is also included), and this situation continues, a notice must be given by the fourth month of the separation. This notice, which is a call for the deserting spouse to “return home,” is made by a judge or notary through publication and upon request. To rely on “desertion” in a divorce case, this notice must be ignored, and at least two months must pass since the notice, meaning that at least six months must pass since the desertion. In this case, if there is enough evidence and conditions for the judge to conclude that one spouse has deserted the other, the judge will definitively decide on the divorce.

It should be noted that all events related to the grounds for divorce must occur or exist after the marriage. For example, if one spouse learns of the other’s pre-marriage mental illness during the marriage, they cannot base the divorce petition on “mental illness.” In such a case, the party should base the divorce petition on the fact that their spouse concealed their condition from them, i.e., the “deception” due to impaired will, and request the annulment of the marriage based on relative invalidity.

5.Mental Illness

According to Article 165 of the Turkish Civil Code (TMK), “If one of the spouses is mentally ill and as a result, the shared life becomes unbearable for the other spouse, the spouse may file for divorce provided that it is confirmed by an official health institution report stating that the illness is incurable.” Mental illness is a special, non-fault-based, and relative ground for divorce.

For “mental illness” to be a ground for divorce, as mentioned, it must be present during the marriage, make the shared life unbearable for the spouses, and be confirmed by an official health institution report indicating that the illness is incurable. If any of these conditions are not met, mental illness cannot be used as a ground for divorce. Additionally, as understood from the legal provision, there is no statute of limitations for filing a divorce based on mental illness.

Furthermore, if it is determined that the mental illness existed at the time of marriage, the marriage will be considered absolutely void, meaning that the marriage is invalid. Therefore, an invalid marriage will not result in any legal consequences.

Procedure in Contested Divorce Cases

Contested divorce cases are initiated by submitting a properly prepared divorce petition to the competent and authorized court. In this regard, the party/parties may need a divorce lawyer, such as a divorce lawyer in Antalya, to file and follow up on the case.

1.Court of Jurisdiction in Contested Divorce Cases

In contested divorce cases, the competent court is the family court. However, in places where family courts do not exist, the civil court of first instance, acting as a family court, is responsible for handling such cases.

2.Competent Court in Contested Divorce Cases

In contested divorce cases, the competent court is, as stated in Article 168 of the Turkish Civil Code, “the court of the place where one of the spouses resides or the place where they last lived together for six months before the lawsuit.” For example, if a party files the lawsuit in a court of a temporary residence, the court will issue a decision of lack of jurisdiction.

Is it Important Who Files the Contested Divorce Case First?

The case can be concluded by being filed by only one of the spouses, or if the other spouse also files a counter divorce case, both divorce cases can be heard together. In this regard, the order in which the case is filed by either spouse does not have any significance in determining the fault of the parties in the divorce; the fault situation is evaluated independently of who files first.

Claim for Compensation and Alimony in a Contested Divorce Case

In a contested divorce case, according to Article 174 of the Turkish Civil Code (TMK), the party that is without fault or less at fault may request an appropriate material compensation from the party at fault or more at fault. Additionally, if a spouse’s personal rights have been violated due to the events cited as grounds for divorce, they may request moral compensation from the party at fault or more at fault. The relevant amounts for compensation will be determined by the court, taking its discretion into account and evaluating the case specifically.

The calculation of material compensation will consider various factors such as the duration of the marriage, the ages of the parties, their economic conditions, and their degree of fault. In the case of moral compensation, conditions such as the violation of the personal rights of the requesting spouse by the other spouse and the termination of the marriage through divorce are considered.

In a contested divorce case, both parties also have the right to claim alimony. In Turkish law, alimony is divided into three categories: poverty alimony, precautionary alimony, and participation (maintenance) alimony.

1. Poverty Alimony: Poverty alimony is a type of alimony granted when one of the parties is likely to fall into poverty as a result of the marriage ending in divorce. Contrary to popular belief, poverty alimony is not only granted to the wife; if it is proven that the husband will fall into poverty after the divorce, he may also receive alimony. As a general rule, poverty alimony is subject to a request; it is not automatically granted by the judge.
2. Interim Alimony: Interim alimony is the alimony granted by the court during the divorce proceedings, before the divorce is finalized, to ensure the financial support of one of the spouses or minor children until the conclusion of the case. Similar to participation alimony, interim alimony is not subject to a request and can be decided by the judge ex officio.
3. Participation (Maintenance) Alimony: Another type of alimony is participation (maintenance) alimony, which replaces the interim alimony that ends after the divorce is finalized. However, it can only be requested for children. According to this, participation alimony is granted to cover the child’s expenses, starting from the finalization of the divorce case, and is ordered against the spouse who does not have custody. Additionally, as a rule, participation alimony can be decided by the judge ex officio, without the need for a request.

Who Will Be Granted Custody of the Child in a Contested Divorce Case?

In a contested divorce case, the issue of who will be granted custody of the child is determined by the judge, taking into account the child’s development and best interests. In this regard, even if the interests of the child and the parents are in conflict, the child’s best interests take precedence. In a contested divorce case, based on the child’s custody, the court determines the child’s welfare by reviewing the Social Inquiry Report, which evaluates the living conditions of the child with both parents. This report is prepared by experts such as pedagogues, psychologists, and social service professionals, and the court’s decision is made based on the findings of this report.

Personal Visitation Rights of the Spouse Not Granted Custody in a Contested Divorce Case

The right to personal visitation (Article 323 of the Turkish Civil Code) aims to ensure that the parent who does not have custody can regularly meet and maintain a relationship with the joint child. Since the right to personal visitation pertains to public order, it is considered by the court ex officio. However, in line with the principle of the child’s best interest, in cases where the parent’s personal visitation rights endanger the child’s development, negatively affect their education, or present significant risk factors, the court may revoke the parent’s right to personal visitation.

In a decision on personal visitation rights, the Court of Appeals 2nd Civil Chamber, dated 19.06.2008, case no. 2008/5816, decision no. 2008/8925, used the following statement:

“In the divorce case, a personal relationship was established between the joint child, whose custody was granted to the father, and the mother every weekend from 9:00 AM Saturday to 5:00 PM Sunday. The petitioner father, through this case, requested that the personal visitation be rearranged to once a month. The personal relationship every weekend between the joint child and the defendant mother would make the father dependent on the home every weekend and would also prevent him from properly fulfilling his custody duties, thus, the judgment should be revised to establish more appropriate and fewer hours of personal visitation between the mother and child in certain weeks of the month.”

Legal Consequences of a Contested Divorce Case

When examining the legal consequences of contested divorce cases, three situations can be observed: the contested divorce request may be rejected, the contested divorce request may be accepted, or a decision for separation may be made.

a. Rejection of the contested divorce case occurs when the divorce cause or reasons presented cannot be proven, or when it is seen that the divorce case was filed by the spouse at fault.

b. Acceptance of the contested divorce case occurs when the cause or reasons for divorce are proven and it is considered that a shared life between the parties is no longer possible. After this decision, the marriage bond is definitively terminated. c. Decision for separation may be made either because one spouse requests separation and the court rules for it, or when the judge considers that the possibility of re-establishing shared life is unlikely, even if there is no request for separation.

How is Property Division Handled in a Contested Divorce Case?

In a contested divorce case, property division is carried out after the filing of a property division lawsuit following the divorce. To perform the division of property, it is essential first to determine which marital property regime the parties were subject to during their marriage, and then to proceed with a liquidation specific to that regime. The Turkish Civil Code classifies property regimes into the legal property regime (participation in acquired property regime) and optional property regimes (shared property separation, property partnership, property separation). This classification means that under the participation in acquired property regime, personal and acquired properties are divided; under the shared property separation regime, shared and personal properties are divided; and in a property partnership, personal and partnership properties are separated. In the case of property separation, however, no division or liquidation is involved.

Frequently Asked Questions

1.How Long Does a Contested Divorce Case Take?

Contested divorce cases, when considering variables such as the parties’ claims, demands, and expert reports, typically last between 8 months and 24 months. This duration refers to the period in the first-instance court, which is the family court. After the case concludes in this court, the parties may proceed to the appellate and then the supreme court stages if they file an appeal.

2.What Does the Judge Pay Attention to in a Contested Divorce Case?

In contested divorce cases, the parties attempt to prove their claims by presenting evidence and await a decision in their favor. The most significant piece of evidence for the judge in this matter is witness testimony. Therefore, the court will request that witnesses, identified on the hearing day, provide their testimony to clarify the disputed issues between the parties. It should be noted that the judge prefers to hear the testimony of witnesses who have personally witnessed the events or situations in question.

3.What Happens If Both Spouses Are Considered Equally At Fault in a Divorce Case?

In divorce cases, fault has a significant impact on the parties’ claims for compensation. If the court deems both parties equally at fault, neither party will be able to request material or moral compensation or alimony. This is because the party requesting compensation or alimony must be less at fault. However, it should be noted that equal fault between the parties will not prevent the divorce from taking place.

4.Who Gets the Wedding Jewelry (Ziynet Eşyaları) in a Contested Divorce?

The issue of who gets the wedding jewelry (Ziynet Eşyaları) after a contested divorce has been divided into three principles in the decision of the 2nd Civil Chamber of the Court of Appeals, dated 04.04.2024, with case number 2023/5704 and decision number 2024/2402:

1. In Case of an Agreement; In this case, the distribution of wedding jewelry is carried out according to the provisions of the relevant agreement.
2. Custom and Tradition; If the agreement mentioned in the first principle does not exist, the wedding jewelry will be distributed according to local customs and traditions.
3. In the Absence of an Agreement or Custom and Tradition; If there is no agreement or local custom and tradition between the parties, anything of monetary value given to or worn by the husband or wife will be considered as belonging to the person to whom it was given. However, it should be noted, especially regarding wedding jewelry, that if something is given specifically to the woman or the man, it will be considered as belonging to that gender and thus will belong to that person.

The issue of who gets the wedding jewelry after a divorce is a matter in which the higher courts do not yet have a fully established practice, with different decisions being made from time to time. For example, in the decision of the 2nd Civil Chamber of the Court of Cassation dated 19.11.2018, with the case number 2017/1769 and decision number 2018/13037, the following was stated: “Regardless of who purchased the jewelry given to the woman during the marriage, it is considered a gift to her and will become her personal property.” In contrast, in the most recent decision of the 2nd Civil Chamber of the Court of Cassation dated 04.04.2024, with the case number 2023/5704 and decision number 2024/2402, it was stated: “If there is an agreement between the parties regarding the distribution of wedding jewelry, the distribution will be made according to that agreement. If there is no agreement between the parties regarding the distribution of wedding jewelry, and if the existence of local customs and traditions can be claimed and proven, the distribution will be made according to this rule. Otherwise, anything of monetary value given to or worn by the husband or wife will, by rule, belong to the individual to whom it was given. However, if something is specific to the opposite sex (either for the woman or the man), it will be considered as belonging to that gender. If there is a dispute regarding the specificity, an expert examination should be conducted if necessary. If, after the expert examination, it is determined that the item is specific to both genders, it will belong to the spouse to whom it was given. Regarding the ownership of items with economic value placed in the jewelry box/bag, if the item is specific to the woman or the man, it will be considered as belonging to that gender. If it is determined that the item is specific to both genders, it should be accepted as common property.” According to this, the most recent case law should be followed when distributing wedding jewelry.

5.Can Message Records Be Used as Evidence in a Contested Divorce Case?

During a divorce case, the parties may resort to methods such as message or phone records to prove the fault of the other party. Message or call records made through applications can be used as evidence in court, provided they are obtained in accordance with the law, without constituting a violation of personal data.

6.Can a Secretly Recorded Audio Be Used in a Divorce Case?

As mentioned above, any legally obtained evidence can be presented to the court and used as evidence. However, communications or audio recordings obtained unlawfully, meaning without the spouse’s knowledge, should not be presented to the court. If submitted, they may lead to legal consequences as outlined in Article 134 of the Turkish Penal Code under the heading “Violation of the Right to Privacy.”

7.How is Adultery Proven in a Divorce Case?

In a divorce case, all grounds for divorce must be proven with legally obtained evidence. Accordingly, adultery can be proven through various types of evidence, including legally obtained photos, videos, hotel, travel, phone records, messages, credit card statements, as well as evidence such as having a child with another person, bringing someone else into the home, living with the opposite sex, and witness statements. An example of this is found in the decision of the Court of Cassation 2nd Civil Chamber, Case No. 2015/1214, Decision No. 2015/15229: “The fact of living with another man is a situation that certainly requires considering the existence of adultery. Since the case also relied on adultery as a special ground, the decision should have been made to accept the divorce based on adultery, rather than the decision made in writing.”

8.Can Relatives Be Heard as Witnesses in a Divorce Case?

In divorce cases, even individuals who are closely related to the parties may testify as witnesses. In this regard, the court exceptionally grants the right to withdraw from testifying to the following individuals:

a. The individual and their spouse’s direct descendants and ancestors
b. Foster parents and their children
c. Individuals with an adoption relationship
d. Individuals who are blood relatives or in-laws

9.Can Reasons After the Filing of the Divorce Case Be Used in the Case?

It should be noted that behaviors that occur after the divorce case has been filed and are inconsistent with the duty of loyalty will not be directly considered as evidence in the related case.

10.What is a Counter Divorce Case, and What Happens If It Is Not Filed on Time?

In contested divorce cases, if no counterclaim is filed, the defendant will only be able to respond to the divorce case filed against them. Therefore, to avoid any loss of rights, the defendant should exercise their right to file a counterclaim. However, if the party misses the deadline for the counterclaim, they should file a divorce case with a request for consolidation.

11.Can a Contested Divorce Case Be Converted into a Mutual Divorce?

In order for a contested divorce case to be converted into a mutual divorce, the marriage must have lasted for at least one year. Therefore, a divorce case initially filed as contested can be converted into a mutual divorce with the statements and approval of both parties before the court. As a result, in a divorce case that transitions to mutual divorce, the process becomes shorter, and the divorce is finalized in a single session.

Some Court of Cassation Rulings Regarding Contested Divorce Cases

1. “The plaintiff man has forgiven his wife for her wrongful actions prior to the date of the notice. Since no new incident can be proven that could be attributed to the defendant woman after the request date of the notice, the divorce case should have been dismissed. However, the acceptance of the case was contrary to procedure and law, and this necessitated the reversal.” (Court of Cassation, 2nd Civil Chamber, Decision dated 09.01.2017, Case No. 2015/21712, Decision No. 2017/11)
2. “Considering the documents in the case file, the evidence on which the decision is based, and the legal grounds for the ruling — particularly the fact that the plaintiff/counter-defendant man installed a spyware program on his wife’s phone to obtain voice recordings, which are considered unlawful evidence and therefore cannot be taken into account in determining fault — it is nonetheless understood that the act of adultery has been proven when all the evidence, including witness statements, phone records, and photographs, are evaluated together. Therefore, the appeal objections are found to be unfounded, and it is ruled that the lawful and procedurally proper judgment be UPHELD…” (Court of Cassation, 2nd Civil Chamber, Decision dated 01.06.2017, Case No. 2015/26918, Decision No. 2017/6688)
3. “The party who will fall into poverty as a result of the divorce may request alimony from the other party for an indefinite period in proportion to the latter’s financial capacity, provided that their fault is not more severe. The fault of the party obligated to pay alimony is not a prerequisite. (Turkish Civil Code Art. 175) Considering that the defendant-counter plaintiff woman was found at fault in the events leading to the divorce and that no fault was attributed to the plaintiff-counter defendant man, the court should have rejected the counter plaintiff’s claim for spousal alimony. However, the decision to accept the claim as written is contrary to procedural rules and the law, and thus necessitates reversal.” (Court of Cassation, 2nd Civil Chamber, Decision dated 04.04.2017, Case No. 2015/23851, Decision No. 2017/3725)
4. “Although the court accepted the divorce case and the consolidated case by finding the plaintiff-counter defendant woman to be seriously at fault and ruled for the divorce of the parties, the proceedings and the evidence collected indicate that while the plaintiff-counter defendant woman committed adultery, the defendant-counter plaintiff man continuously subjected his wife to violence. Given these circumstances, it must be accepted that both parties were equally at fault for the events leading to the divorce. Compensation cannot be awarded in favor of a spouse who is equally at fault. Therefore, it was incorrect to consider the plaintiff-counter defendant woman as seriously at fault and to award pecuniary and non-pecuniary compensation (under Turkish Civil Code Art. 174/1-2) to the defendant-counter plaintiff man based on this erroneous fault determination, and the decision must be reversed.” (Court of Cassation, 2nd Civil Chamber, Decision dated 05.04.2017, Case No. 2015/26395, Decision No. 2017/4021)
5. “Based on the investigation conducted and the evidence collected, it is understood that the defendant woman was placed under legal guardianship due to mental illness in accordance with Article 405 of the Turkish Civil Code. There is no lawsuit filed by the plaintiff man on the grounds of mental illness (Article 165 of the TCC). Since the actions of the defendant woman are not voluntary, she cannot be held at fault, and a divorce cannot be granted based on the legal ground of ‘the breakdown of the marital union’ under Article 166/1 of the Turkish Civil Code. It was therefore procedurally and legally incorrect to issue a judgment as written, and the plaintiff man’s case should have been dismissed.” (Court of Cassation, 2nd Civil Chamber, Decision dated 15.05.2018, Case No. 2018/2559, Decision No. 2018/6246)

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