What is Physical Separation?
Physical separation, also known as de facto separation, refers to a situation where, following rejected divorce cases, the parties have failed to restore their marital union, making the marriage unbearable and preventing the reconstruction of their shared life. The party claiming physical separation as grounds for divorce is required to prove with legal evidence that the parties did not live a family life during the relevant period.
What Conditions Are Required for the Existence of Physical Separation?
- The existence of a rejected divorce case
- At least 1 year has passed since the rejection decision
- During the process, the parties’ inability to establish a shared life
As stated in Article 166, paragraph 4 of the Turkish Civil Code, a number of conditions outlined by the law must be met in order for the divorce case filed by the parties to be based on the grounds of factual separation. Before the Constitutional Court’s annulment decision regarding this legal article on 22.02.2024, these conditions were as follows: the existence of a previously rejected divorce case, at least 3 years having passed since the court’s rejection decision, and the inability of the parties to establish a shared life within this 3-year period. The Constitutional Court annulled this provision, arguing that the duration was unfair and made divorce more difficult. It granted the legislative body a nine-month period from the date of publication of the annulment decision in the Official Gazette (RG. 19.04.2024; S: 32522). Subsequently, the Turkish Grand National Assembly (TBMM) decided to reduce this period from 3 years to 1 year in the 9th Judicial Reform Package, which was adopted in 2024.
Following these developments, the issue of divorce based on factual separation is now regulated in the new provision of the law as follows: If a divorce case is filed based on any of the divorce grounds and the case is rejected, and at least one year has passed since the finalization of the rejection decision, if the shared life has not been re-established for any reason, the marriage union is considered to be fundamentally broken, and upon the request of one of the spouses, a decision for divorce will be made. It should be noted that if an appeal or cassation is filed by the parties following the rejection of the divorce case, the aforementioned 1-year period will begin after the final decision.
The expression “if the shared life cannot be re-established,” as mentioned in the law, is a matter to be determined and decided by the judge based on the specifics of the case. A shared life can sometimes be seen in the form of the parties living separately at times or living in the same residence but having conflicts in their marriage. Moreover, there are situations where, although the marriage union seems to be intact, the shared life has not been re-established. For example, if the parties only meet to discuss a specific issue, are together due to mutual children, or meet at occasions such as weddings, holidays, and funerals, these do not constitute evidence of the re-establishment of a shared life. As mentioned in the Supreme Court’s decision dated 12.09.2018, case number 2016/21389 and decision number 2018/9106, such examples can be further diversified: “In the present case, it is evident from the unrefuted witness statements that the defendant husband did not contact or provide financial or emotional support to the plaintiff wife or their children during the period of factual separation. In this situation, there is a conflict between the parties that is so severe that it undermines the shared life and makes the continuation of the union impossible. The plaintiff wife is justified in filing the lawsuit. Under these circumstances, since it is no longer legally feasible to force the spouses to live together, it is incorrect to dismiss the case with insufficient reasoning instead of deciding on divorce.”
Important Features of Factual Separation
When examining the characteristics of factual separation, it is seen that it is a special, non-fault-based, and absolute ground for divorce. Ultimately, factual separation is considered one of the special grounds for divorce because its existence alone is sufficient for a divorce decision to be made. In divorce cases based on special grounds, the element to be proven is related to the existence of the alleged ground or grounds. However, in divorce cases based on general grounds, the defendant has a burden of proof concerning both the ground and fault, whereas the situation is the opposite in cases based on special grounds.
The fact that factual separation is not fault-based indicates that the parties will not encounter any inquiry into fault or a classification of being more or less at fault when filing for divorce based on this ground. Even a highly at-fault party has the right to file for divorce based on this ground, just like a party with less fault. However, in matters related to alimony, material, and moral compensation, fault is an issue that must be investigated and considered.
The fact that factual separation is an absolute ground for divorce means that if the party or parties claiming factual separation can prove their claims, the judge will definitively decide on the divorce. The reason for this is that the parties are unable to restore marital life despite a previously rejected divorce case. In other words, since it is foreseen that marital life cannot be established again between the parties, divorce must now be definite and absolute.
Procedural Rules in Divorce Cases Based on Factual Separation
Divorce cases based on factual separation are initiated by submitting a petition prepared in accordance with the prescribed procedures. This petition should include the personal information of the parties and their representatives, if applicable, the file number of the previously rejected divorce case, and a detailed explanation of the issue of “inability to resume joint life.”
Although the competent court for divorce cases based on factual separation is the family court, in areas and regions where there is no family court, such cases are also heard in civil courts of first instance. The competent court, as stated in Article 166 of the Turkish Civil Code (TMK), is the court of the place of residence of one of the spouses or the court of the place where the spouses last lived together for at least six months before the divorce case.
Frequently Asked Questions
1.Can Compensation Be Requested in a Divorce Case Based on Physical Separation?
Although physical separation is a special ground for divorce that does not depend on fault, the issue of fault is important when it comes to alimony, property division, and material and moral compensation. In this regard, in divorce cases based on physical separation, the fault ratio must be thoroughly examined and presented for alimony, property division, and compensation.
2.Is the First Divorce Case with a Rejection Decision Important in Physical Separation?
In this regard, it appears that the reason behind the rejection decision of the first divorce case does not matter to the judge in terms of which party filed the case and for what reason. The judge will evaluate the divorce case based on physical separation on its own merits and, if the claims are proven, will ultimately decide on the divorce.
3.How Long Does a Divorce Case Based on Physical Separation Take?
Divorce cases based on physical separation generally last between 1 to 3 years. The variation in these timeframes depends on factors such as the complexity of the case, the collection of evidence, the workload of the relevant court, and whether the case is appealed to higher courts such as the Court of Appeals or the Court of Cassation.
4.How to File for Divorce Based on Physical Separation?
Divorce cases based on physical separation are initiated when at least one of the parties applies to the family court, or if there is no family court, to the civil court of first instance. During this process, individuals may require the assistance of a divorce lawyer, such as an Antalya divorce lawyer, who will file and follow the case on their behalf.
5.Can a Divorce Case Based on Physical Separation Be Filed After Renouncing a Divorce Case?
Although the parties have renounced a divorce case, they still have the right to file for divorce based on physical separation. What is important in this regard is that a divorce case has been filed and rejected. If the other conditions are met, a divorce case based on physical separation can be filed even after the divorce case has been renounced and rejected.
6.Can Other Grounds for Divorce Be Included in a Divorce Petition Based on Physical Separation?
Divorce cases must be filed based on a specific ground, but they can also be filed by presenting multiple and different types of grounds for divorce. For example, in addition to physical separation, the petition can include abandonment, which is a special, fault-based, and absolute ground for divorce.
7.Can a Divorce Case Based on Physical Separation Be Filed After a Mutual Divorce?
If the parties end their marriage through mutual divorce, regardless of the reason, there will no longer be a marriage, and they will lose the right to divorce. However, within the 10-year statute of limitations from the date of the divorce, a lawsuit regarding the division of property according to the divorce protocol provisions may be filed.
Some Court of Cassation Decisions Regarding De Facto Separation
1.”Although de facto separation alone is not considered a reason for divorce, the duties of the defendant husband during the period of separation are not suspended. The defendant husband must at least fulfill his duties toward the common children.” (Court of Cassation, 2nd Civil Chamber, Decision dated 12.09.2018, Case No. 2016/21389, Decision No. 2018/9106)
2.“According to the collected evidence, it is understood that the plaintiff’s occasional visits to the defendant’s house were not aimed at re-establishing the marital union but were intended for visiting the children.” (Court of Cassation, 2nd Civil Chamber, Decision dated 28.12.2006, Case No. 2006/19707, Decision No. 2006/18593)
3.”The plaintiff’s stay in the village for about a week in August 2008 during a permitted visit, taking the children on a short vacation, was aimed at seeing the children and is not sufficient to accept that it was intended to re-establish and continue the marital life.” (Court of Cassation, 2nd Civil Chamber, Decision dated 10.10.2011, Case No. 2010/14252, Decision No. 2011/15321)
ANTALYA DIVORCE LAWYER – ANTALYA DIVORCE CASES
In our country, divorce cases resulting from the breakdown of family unity for various reasons, although unfortunate, can sometimes be inevitable for couples who wish to divorce and, consequently, for the children involved, in order to lead a healthier and happier life. Therefore, a divorce case is a legal process initiated by one or both spouses applying to the court to terminate the marriage union. During this process, important issues such as alimony, custody, property division, and compensation are addressed. Especially in contested divorces, it is crucial to work with an expert divorce lawyer to avoid any loss of rights.
A divorce lawyer defends the client’s rights in the best possible way within the framework of the Turkish Civil Code and relevant legislation, manages the case process correctly, and provides professional legal support. Whether it is a mutual consent divorce or a contested divorce, with the support of an experienced lawyer, the process can be carried out more quickly, securely, and smoothly.
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