In the Turkish legal system, divorce lawyers are attorneys who provide legal consultancy and represent clients in court, particularly in divorce cases and various disputes arising from family law. Lawyers referred to as divorce lawyers by the public are specialists in the field of family law, which is regulated by the Turkish Civil Code.
Divorce cases can be highly exhausting processes for spouses, who are often already emotionally and mentally drained by the time they reach the decision to divorce. For this reason, they aim to navigate the process as quickly and smoothly as possible. To achieve this, they seek a lawyer with extensive legal knowledge and the ability to manage the case professionally. Hiring a lawyer specialized in family law is crucial for facilitating the process and preventing the loss of rights.
While divorce cases are among the primary disputes in the field of family law, they also require extensive legal expertise in terms of their causes and consequences. At this stage, spouses may engage in actions that necessitate criminal sanctions. Therefore, it is essential for a lawyer specializing in family law to also have proficiency in criminal law.
Which Cases Do Divorce Lawyers Handle in Turkish Law?
- Disputes arising from the return of gifts after the termination of an engagement,
- Claims for material and moral compensation following the termination of an engagement,
- Uncontested divorce cases,
- Contested divorce cases,
- Custody requests, revocation of custody, and joint custody cases,
- Claims for material and moral compensation,
- Alimony cases,
- Cases for the annulment of the waiting period (iddet süresi),
- Property division and property sharing cases,
- Claims regarding poverty and child support alimony,
- Guardianship and trusteeship cases,
- Paternity and lineage cases,
- Adoption cases,
- Drafting prenuptial agreements and other family law-related contracts,
- Filing protective measures under the Law on the Protection of the Family and the Prevention of Violence Against Women,
- Divorce cases involving foreign nationals, including completing the process and the recognition and enforcement of foreign divorce decrees,
- Divorce cases due to mental illness.
What Are the Grounds for Divorce in Turkish Law
In our country, divorce cases frequently arise from various reasons and often involve challenging processes for the spouses. Under family law, the grounds for divorce are divided into two categories:
- General grounds for divorce,
- Special grounds for divorce.
The Turkish Civil Code regulates the grounds for divorce between Articles 161 and 166.
Special Grounds for Divorce:
- Divorce due to adultery,
- Divorce due to intent to kill,
- Divorce due to cruel and degrading behavior,
- Divorce due to committing a crime or leading a dishonorable life,
- Divorce due to mental illness,
- Divorce due to abandonment.
General Grounds for Divorce:
- Breakdown of the marital union,
- Severe incompatibility,
- Uncontested divorce,
- De facto separation for three years following the rejection of a divorce case.
How to File a Divorce Case in Turkish Law?
When terminating a marriage, couples may sometimes decide to divorce amicably. However, in some cases, one spouse may refuse to divorce, creating difficulties. While uncontested divorce is a healthier and simpler option for both parties, contested divorce unfortunately involves more challenging and exhausting processes. To navigate these processes more easily and to avoid losing rights such as custody and alimony, it is in the spouses’ best interest to seek legal assistance from a lawyer specialized in family law.
Filing an Uncontested Divorce Case
To file for an uncontested divorce, the marriage must have lasted at least one year. Once this period has passed, the spouses prepare a petition for uncontested divorce or have it prepared by a lawyer. An uncontested divorce protocol is also attached to this file, which is then submitted to the competent family court.
Filing a Contested Divorce Case
For a contested divorce case, a petition for divorce is prepared by the parties themselves or through a lawyer. The necessary evidence and witnesses for the contested divorce are also added to the file, which is submitted to the competent family court. In both types of cases, the required court fee must be paid to initiate the case, after which a preliminary proceedings report (tensip zaptı) is sent to the parties.
Preliminary Proceedings Report (Tensip Zaptı)
The preliminary proceedings report includes deadlines for responding to petitions, notices about depositing advance payments for expenses, and timelines for submitting evidence. It also notifies the date and time of the preliminary hearing. The judge reviews the case file, and if no deficiencies are found, the preliminary hearing is held. During this hearing, the judge rules on initial objections, and the prohibition on expanding or modifying claims and defenses takes effect.
Investigation and Final Judgment
After the preliminary hearing, the investigation phase begins. During this stage, evidence is collected, and witnesses are heard. This is followed by the judgment hearing, during which the judge announces their decision. The judge’s short decision, along with its justification, is then communicated to the parties. Following the notification of the decision, the appellate and cassation stages (if applicable) begin. Once these stages are completed, the decision becomes final, and the case file is closed.
In Which Court Is a Divorce Case Filed in Turkish Law?
In divorce cases, the competent court is the family court. If the spouses previously lived together, they can file the case in the family court of that location. However, if the spouses are living separately, the filing spouse can apply either to the family court in their own place of residence or to the family court in the other spouse’s place of residence. If there is no family court in the area where the divorce case will be filed, the case can also be filed in the Civil Court of First Instance.
According to Article 167 of the Turkish Civil Code No. 4721: “In divorce or separation cases, the competent court is the court located in the place of residence of one of the spouses or the place where they last lived together for at least six months prior to the case.”
Custody Case in Turkish Law
In the Turkish legal system, the custody of a minor child belongs to the parents. Without a legal reason or a court decision, the custody of the child cannot be granted to anyone else. A custody case is the type of lawsuit filed by the parent who does not have custody, seeking to obtain custody of the child from the other spouse. The provisions related to custody are regulated in Articles 335-351 of the Turkish Civil Code. When determining custody, the court considers factors such as the best interests of the child and the child’s age, as outlined in these provisions. Some of the regulations mentioned in the articles are as follows:
Article 335 – A minor child is under the custody of the mother and father. Unless there is a legal reason, custody cannot be taken away from the parents. Unless the court deems it necessary to appoint a guardian, restricted adult children also remain under the custody of the mother and father.
Article 337 – If the parents are not married, custody belongs to the mother. If the mother is a minor, incapacitated, deceased, or her custody has been revoked, the court, based on the best interests of the child, may appoint a guardian or grant custody to the father.
Article 342 – The mother and father, within the scope of their custody, are the legal representatives of their child against third parties. Good faith third parties may assume that each of the spouses is acting with the consent of the other. Provisions related to the representation of restricted persons also apply to the representation of a child in custody, except for matters that require approval from guardianship authorities.
Additionally, the child’s ability to understand plays an important role in the custody arrangement. When deciding on the custody of children above a certain age, the court must listen to the child and obtain their opinion. According to the Court of Cassation, a child’s ability to understand is considered to begin at the age of 8. Custody arrangements, changes, or revocations for children aged 8 and above cannot be made without considering the child’s opinion.
What is the Iddet Period in Turkish Law and How Can It Be Lifted?
The waiting period required by law for a woman to remarry after the dissolution of her marriage is referred to as the “iddet” period. This period is established to preserve the lineage, as the woman may be pregnant at the time of divorce, and the child may need to establish a legal relationship with the father, the ex-husband. Additionally, the iddet period serves to protect the rights of the woman who intends to marry another person.
The iddet period is 300 days from the date of divorce and ends either when the woman gives birth or after the 300-day period has passed. If the woman does not wish to wait for the iddet period to expire, she may request the court to lift it. In such a case, the woman must provide medical reports indicating that she is not pregnant.
Alimony Cases and Types in Turkish Law
Alimony is the money determined by the judge to be given to the spouse who will experience financial difficulties or will not be able to meet their needs due to divorce. According to the regulations in the Turkish Civil Code, there are two types of alimony: maintenance alimony and assistance alimony. Additionally, maintenance alimony is further divided into three types: child support (participation alimony), poverty alimony, and provisional alimony.
Provisional Alimony: This is the measure taken by the judge during the period between the filing and conclusion of the divorce case. It is the money paid by one spouse to the other spouse, who will experience poverty during the divorce process, to provide for their living expenses. Provisional alimony can be requested right before the divorce case is filed or during the case process and ends when the case concludes.
Child Support (Participation Alimony): This alimony can be ordered once the divorce case has concluded. If there are children, the custody of the child will be granted to one of the spouses. The spouse who does not have custody of the child must pay a certain amount of money for the child’s living expenses, education, and other needs, based on their financial situation and the amount determined by the judge. The judge can decide on participation alimony ex officio, meaning they do not wait for a request from the spouse, although the spouses can request it as well.
Poverty Alimony: Poverty alimony is a type of alimony that the judge must order along with the divorce decision. The requesting spouse claims that they will fall into poverty due to the divorce. However, fault is an important factor here. The spouse requesting poverty alimony must be less at fault or not at fault at all compared to the other spouse. The judge will expect one of the spouses to request poverty alimony. This type of alimony does not have a set duration; it is paid indefinitely. However, there is a possibility of termination, and certain conditions apply for this, which are as follows:
- If the person receiving the alimony gets married, the spouse paying the alimony can request that the payments be terminated.
- If the recipient of the alimony is living with someone else as if married without a legal marriage, they will lose this right.
- If one of the spouses dies, this alimony right ends and is not passed on to the heirs.
How is Property Division Handled in Divorce under Turkish Law?
After the divorce case is finalized, the division of acquired property, which is another challenging process, begins. One important thing to note is that in order to prevent the sale or, in other words, the concealment of property subject to division during the ongoing divorce case, a precautionary order must be obtained from the court in the property division case. Additionally, divorce and property division cases are separate proceedings, and the property division case is filed after the divorce is finalized.
If a contract was made beforehand regarding property division, it will be followed. However, if no such contract exists, the property division regime will be followed. According to this regime, the property acquired during the marriage is divided equally between the spouses after the divorce. Often, one spouse may not be working, and the other spouse may argue that it is unfair, claiming that they earned everything through their own work, opposing the division. However, it should be understood that such an objection has no meaning. The court does not consider such objections when dividing the property.
Material and Moral Compensation in Divorce under Turkish Law
In divorce cases, the spouse who is less at fault or faultless may request material and moral compensation. Material compensation is determined to ensure the spouse’s livelihood, while moral compensation is requested for the emotional damage (such as sorrow, grief, suffering, etc.) incurred during the marriage. An important aspect of requesting moral compensation is the ability to prove fault through evidence in the Family Court.
Material and moral compensation can be requested during the divorce process or, within one year after the divorce is finalized, a separate lawsuit for material and moral compensation can be filed. The determination of the compensation amount is at the discretion of the judge. In determining this amount, the judge considers the financial status of the spouses, their degree of fault, and, if applicable, the number and ages of the children.
Divorce and the accompanying alimony, property division, or compensation lawsuits can be long and challenging processes. Seeking legal support from an expert lawyer during these proceedings will both speed up the process and prevent potential loss of rights.
Recognition and Enforcement of Divorce Decisions Given Abroad in Turkey
Decisions made by foreign courts abroad are not automatically valid in Turkey. In order for a decision made by a foreign court to be valid in Turkey, a separate lawsuit must be filed. Since our topic is divorce, for example, if a couple gets divorced by filing a lawsuit abroad, they must go through the process of recognition and enforcement for this decision to be valid in Turkey. Otherwise, the couple will continue to be considered married in Turkey.
To file for recognition and enforcement, an application is made to the Family Courts. For this process, the decision made by the foreign court must be final, and a certified copy of the final decision with an apostille must be submitted to the court in Turkey.
ANTALYA DIVORCE LAWYER – FAMILY LAWYER ANTALYA
In our country, divorce cases, alimony cases, or cases involving property division arising from divorce, especially in the case of contested divorces, are often long and exhausting processes. We would like to emphasize again that these processes require extensive legal knowledge and experience. Therefore, it will be in the best interest of the spouses to manage these processes through a lawyer who specializes in family law and has the necessary legal knowledge and experience.
Our law office in Antalya has been providing services in various areas of law for a long time. Additionally, we continue to offer legal consultancy and representation to our clients with our professional team of lawyers, resolving disputes through various family law cases and procedures. You can reach us through the contact section or make an appointment.
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