Table of Contents

What Is a Divorce Case Due to Abandonment?

A divorce case due to abandonment is filed when one of the spouses ends the marital life with the intention of not fulfilling the obligations arising from the marriage union. Article 164 of the Turkish Civil Code clearly sets out the grounds for divorce due to abandonment.

Article 185 of the Turkish Civil Code contains the following statement:
By getting married, a union of marriage is established between the spouses. The spouses shall ensure the happiness of this union in cooperation and take care of the maintenance, education, and supervision of the children together. The spouses are obliged to live together, remain faithful to each other, and assist each other.
This regulation imposes living together as an obligation on the spouses.

A divorce case due to abandonment can be filed when one of the spouses leaves the marital home willfully and on a continual basis, terminating the marital life without a justified reason. The main conditions for this case are as follows:

  • The abandonment must have continued for at least six months and still be ongoing,
  • An official warning by a judge or a notary public to the abandoning spouse to return to the marital home must have remained inconclusive,
  • The two-month waiting period after the warning must have expired.

In a divorce case due to abandonment, the spouse who forces the other to leave the marital home or prevents the other from returning to the marital home without a justified reason is also considered the abandoning spouse. Furthermore, the warning may be made by public announcement, if necessary.

A divorce based on abandonment, as regulated in Article 164 of the Turkish Civil Code, requires following a specific procedure. In this process, taking the correct legal steps and fulfilling legal requirements such as the warning are the most important factors affecting the outcome of the case.

Two individuals placing their hands on a divorce contract, with rings and a pen on the table.

What Are the Conditions for Filing a Divorce Case Due to Abandonment?

Filing a divorce case due to abandonment requires meeting certain conditions set forth under Article 164 of the Turkish Civil Code. These conditions are crucial for the lawful initiation and resolution of the case. The conditions for filing a divorce case due to abandonment can be listed as follows:

  1. Termination of marital life:
    One of the spouses must have willfully abandoned the marital life and failed to fulfill obligations arising from the marriage union by leaving the marital home.

  2. The abandonment must not be based on a justified reason:
    The abandoning spouse must have left the marital home without a justified reason. If the spouse is not present in the marital home for a justified reason and does not return to the marital home after that justified reason ceases to exist, the situation constitutes abandonment.

  3. The abandoned spouse must be without fault:
    The abandoned spouse must not have forced the other spouse to leave the marital home or driven them out. Additionally, the abandoned spouse must not have prevented the other spouse from returning to the marital home without a justified reason.

  4. The abandonment must have continued uninterruptedly for 6 months:
    The abandonment must have continued for 6 months without interruption and must still be ongoing on the date the case is filed.

  5. The sending of a warning:
    After 4 months of abandonment, the abandoned spouse must send a warning to the abandoning spouse to return to the marital home. This warning must be made in accordance with legal procedures.

  6. 2-month waiting period after the warning:
    Following the notification of the warning, the abandoning spouse must fail to return to the marital home without a justified reason within 2 months. This period is mandatory for filing a case.

A divorce case due to abandonment may be filed if all the above conditions are met. Receiving legal support at every stage ensures that the process proceeds more smoothly.

Conditions for Filing a Divorce Case Due to Abandonment

The conditions for filing a divorce case due to abandonment are based on Article 164 of the Turkish Civil Code and require a legal evaluation of the state of abandonment. Below is a detailed explanation of the conditions for filing a divorce case due to abandonment:

A couple in the process of divorce sitting in their living room looking in different directions; the man looks pensively at the camera while the woman, with a drink in her hand, gazes in another direction.

The Occurrence of Abandonment

The first condition for filing a divorce case due to abandonment is that the abandonment must have actually or presumably taken place. This refers to a separate marital home through which the abandonment took place. The marital home is the place the spouses have chosen to live together. If one spouse does not leave the mentioned home or if there is a disagreement about what constitutes the marital home, then it cannot be said that the conditions of abandonment exist.

  • Actual abandonment occurs when a spouse leaves the separate marital home. For instance, if one spouse leaves the marital home and goes to live with their family, and then the other spouse also leaves the marital home to rent another place, any warning issued regarding this new place may be considered invalid. In that case, it would be accepted that the spouse receiving the warning has a justified reason not to comply with it.
  • Presumed abandonment is regulated in the last sentence of Article 164 of the Turkish Civil Code. If one spouse has forced the other spouse to leave the marital home or has unjustifiably prevented the other spouse from returning to the marital home, then it is considered that the conditions for abandonment have not been met. In such a case, the person deemed to be the abandoning spouse cannot file for divorce due to abandonment.

The Abandoning Spouse’s Reason for Living Separately Must Not Be Lawful

For a divorce case due to abandonment to be filed, the spouse who leaves must be living separately without a lawful reason. If the abandoning spouse had a justified reason for leaving the marital home, the conditions for filing a divorce case due to abandonment do not arise.

  • Reasons that justify abandonment include situations such as the abandoning spouse experiencing physical or psychological abuse, or the marital home being uninhabitable. In the presence of such reasons, the abandoning spouse’s behavior may be considered justified, and the divorce case based on abandonment may be rejected.
  • Article 164/1 of the Turkish Civil Code regulates the spouses’ obligation to live in a separate marital home. If one spouse forces the other spouse to return to the marital home or unjustifiably prevents them from returning, it cannot be said that the conditions of abandonment have been met.
  • The lawfulness of the abandonment should be evaluated in accordance with the specific features of each concrete case.

The Right of One Spouse to Live Separately

The right of one spouse to live separately is regulated under Article 197 of the Turkish Civil Code. If living together seriously endangers the personality, economic security, or peace of the family of one of the spouses, that spouse is entitled to live separately. The law requires that the extent of the danger be serious in such situations.

Not every dispute grants spouses the right to live separately. If one spouse, pursuant to Article 197 of the Turkish Civil Code, has a justified reason to temporarily suspend cohabitation, a divorce case based on abandonment cannot be filed. If one of the selection-based reasons for living separately mentioned in this Article has occurred, the spouse in danger acquires the right to live separately.

Views in Doctrine and the Necessity of a Court Decision

In this regard, there are different views in legal doctrine. The majority view holds that a court’s permission is not required to have the right to live separately. This is because the provisions of Article 197 of the TCC differ from the separation institution governed by Article 170 et seq. of the TCC. However, some authors argue that even if a spouse has justifiable reasons, they do not have the right to live separately unless there is a court decision.

If the spouse who is in danger requested independent alimony for precautionary measures, this may be considered persuasive evidence that they have the right to live separately. A court-ordered alimony indicates that the spouse in whose favor the alimony is ruled is justified in living separately.


The Existence of a Request for Independent Alimony for Precautionary Measures by One of the Spouses

Article 197/2 of the Turkish Civil Code regulates the pecuniary contribution one spouse may make to the other, as well as the necessary measures to be taken regarding housing and household goods if they temporarily suspend living together. The text of the Article is as follows:
If suspension of cohabitation is based on a justified reason, the judge, upon the request of one of the spouses, shall take measures regarding the pecuniary contribution to be made by one spouse to the other, the right to use the residence and household goods, and the management of the spouses’ property.

Accordingly, if there is a request for independent alimony for precautionary measures by the abandoned spouse under Article 197 of the TCC before sending the warning required in cases of abandonment, it may affect the filing of a divorce case based on abandonment. Once an independent alimony case is filed, no warning can be sent due to abandonment before 4 months have elapsed, and it cannot be expected for the abandoning spouse to return to the marital home before this period passes.

  • Proof of Justified Reasons: The request for independent alimony for precautionary measures by the spouse claiming the right to live separately serves as strong evidence that the dangers to their security or living standards are significant.
  • The Warning Process: A case of independent alimony for precautionary measures under Article 197 of the TCC directly affects the warning procedure and the filing of a divorce case due to abandonment.

The Existence of an Ongoing Divorce Case Between the Spouses

If there is already an ongoing divorce case between the spouses, both parties have the right to live separately, and this prevents the filing of a divorce case on the grounds of abandonment. In this context, the following considerations apply:

  • Sending a warning to the abandoning spouse and the filing of a divorce case before the warning reaches them: If a warning is sent to the abandoning spouse, but the spouse files a divorce case before the warning reaches them, this grants the abandoning spouse the right to live separately. Therefore, any warning in this scenario would not produce legal results.
  • Filing a divorce case after the warning: If the abandoning spouse files for divorce after the warning has been served, this does not justify the abandonment. In that case, the warning remains legally valid.

If the divorce case is rejected: After the pending divorce case between the parties is concluded, if the request for divorce is rejected and no separation decision is issued, once the legal conditions for filing a case due to abandonment are met, a divorce action due to abandonment may be initiated within 4 months from the finalization of the divorce judgment.

Furthermore, if the divorce petition is rejected, after the date of rejection, the parties may file a new divorce case at any time based on new occurrences (See Judgment of the 2nd Civil Chamber of the Court of Cassation dated 20.11.2013, numbered 2013/13533 E., 2013/27103 K.).


An Issued Separation Decision

Article 171 of the Turkish Civil Code provides that if the grounds for divorce cannot be proven in a divorce case, but there is a possibility that the common life can be restored, the judge may decide for separation. Separation is regulated as follows:

  • A decision for separation is issued for a period ranging from one to three years, and this period begins once the separation decision becomes final.
  • During the separation period, the parties have the right to live separately, and it is deemed lawful. Hence, no warning may be given, and it is not possible to file a divorce case due to abandonment in this period.

In addition, one of the spouses may directly file a separation case, asking the judge to render a decision for separation. In this scenario, the judge will issue a separation decision if they consider that the chance for restoring the common life exists.

The Existence of a Criminal Case Between the Parties:

If there is an ongoing criminal case between the parties, the parties are justified in living separately. Thus, no warning should be issued for abandonment during such a period.

  1. An Ongoing Divorce Case: If there is already an ongoing divorce case, the parties are justified in living separately, which prevents filing a divorce case due to abandonment.
  2. A Separation Decision: A separation decision legitimizes living separately, and no divorce case due to abandonment can be filed during this process.
  3. After the Rejection of a Divorce Case: If a divorce case is rejected and new circumstances arise, the parties may file a new divorce case.

Lack of a Justified Reason for the Abandoning Spouse’s Failure to Comply with the Warning

A woman receiving legal counseling from a lawyer during a divorce process, with documents and a scale of justice emblem on the table.

For a divorce case due to abandonment to be filed, the abandoning spouse must not have a justified reason for failing to comply with the warning. The abandoning spouse may have legitimate reasons for leaving the marital home. However, even if the spouse left the marital home for justified reasons, they may not have a legitimate reason for not returning. In such a case, in order for the divorce due to abandonment to be dismissed, it must be shown that there was a justified reason for not returning to the marital home, rather than for the abandonment itself.

  • Burden of Proof: It is the defendant’s responsibility to prove that there is a justified reason for failing to comply with the warning.
  • The Judge’s Duty to Investigate: In a divorce case due to abandonment, the judge must investigate whether the defendant has any justified reason for not returning to the marital home.

For example:

  • A woman who suffers physical violence cannot be held at fault for leaving home.
  • A spouse who was forced out of the home or whose belongings were thrown out of the marital home cannot be deemed at fault for abandonment if they were compelled to leave.

The Warning Must Be Valid and Sincere

In order to file a divorce case due to abandonment, a warning must be issued to the abandoning spouse and that warning must be valid. For a warning to be considered valid, it must be sincere. During the trial, the judge examines whether the warning was sincere and whether the abandoning spouse had a justified reason for not complying and returning home.

  • Examples of Insincere Warnings:
    • After sending a warning to the abandoning spouse, the spouse issuing the warning says, “Nothing will change even if you come home.”
    • The spouse issuing the warning continues living with someone else or negotiates marriage with third parties.
    • The door lock is changed after sending the warning.
    • The spouse issuing the warning states in the divorce petition that the marital union is already irretrievably broken.

Such instances show that the spouse issuing the warning is not sincere in doing so. However, these examples are only typical cases; each situation must be evaluated according to its own particular conditions and circumstances.

  • The Existence of a Justified Reason: The abandoning spouse’s proof that they have a justified reason for not complying with the warning directly affects the outcome of the case.
  • The Sincerity of the Warning: In a divorce case due to abandonment, it is essential that the warning process has been legally and sincerely carried out.

The Requirement of Warning in Order to File a Divorce Case Due to Abandonment

To be able to file a divorce case due to abandonment, a warning must be duly issued. In lawsuits based on the reason of abandonment, a duly issued warning is a prerequisite for filing the case (For more information, see Judgment of the Supreme Court of Appeals General Assembly on the Unification of Judgments dated 16.01.2013, numbered 2012/2-686 E., 2013/67 K.). For a warning to be deemed duly issued, the following conditions must be met:

  1. Duration of Abandonment and Timing of the Warning:

    • Before filing a divorce case due to abandonment, at least 4 (four) months must have passed since the act of abandonment.
    • The date of abandonment must be established without leaving any doubt and in a provable manner. By law, this four-month period must be calculated from the date of separation.
    • The separation must have continued for at least four months and must still be ongoing on the date of the case.
  2. Malicious Returns:

    • If one spouse has unjustifiably left the marital home and returns to the marital home just before the expiry of the four-month period prescribed by law, only to leave again, this may be aimed at invalidating the warning.
    • The abandoning spouse’s conduct contrary to the principle of good faith does not interrupt the four-month period stipulated by law. This means that the four-month waiting period required for the warning remains unaffected.
  3. Method of Sending the Warning:

    • To file a divorce case due to abandonment, the warning must be sent by a judge or a notary public.
  4. Content of the Warning:

    • The warning must be prepared to be sent to the abandoning spouse and include the following information:
      • The complete address of the residence to which the abandoning spouse is invited.
      • The time period (2 months) within which the abandoning spouse must return and the legal consequences in the event of non-compliance.
      • If the spouse inviting them home will not be present, the whereabouts of the house key must be stated.
      • If the abandoning spouse is in another city or country, proof must be given that travel expenses have been provided. These expenses encompass one day’s lodging as well as transportation costs for the spouse and children.
  5. Notification of the Warning:

    • The warning must be duly served on the abandoning spouse. A divorce case due to abandonment cannot be filed until 2 (two) months after the warning has been served.
  6. Filing the Divorce Case:

    • After the warning has been served, a divorce case due to abandonment may be filed only after a further period of 2 (two) months prescribed by law has passed.
    • In line with the law and Supreme Court decisions, if the abandoning spouse fails to return to the marital home within 2 (two) months following the service of the warning without a justified reason, the abandoned spouse is entitled to file a divorce case due to abandonment.

Key Points

  • Formal Requirements of the Warning: The warning issued by the judge or notary must contain all the required details and be in accordance with legal procedures.
  • Principle of Good Faith: Acts of the abandoning spouse that conflict with good faith do not affect the warning or the waiting period for filing the lawsuit.
  • Period After the Warning: A divorce case due to abandonment cannot be filed before two months have passed from the date on which the warning was served.

Which Court Has Jurisdiction Over a Divorce Case Due to Abandonment?

A divorce case due to abandonment must be filed before the competent family court. The competent court is determined in accordance with Article 168 of the Turkish Civil Code. Under this Article, the case can be filed in two locations:

  1. The court of the place of residence of one of the spouses
  2. The court of the place where the spouses last lived together for six months prior to the lawsuit

In places without a family court, the civil court of first instance hears these cases in its capacity as a family court. Thus, it is important to correctly determine the competent court when filing for divorce due to abandonment.


Can More Than One Ground for Divorce Be Cited in a Divorce Case Due to Abandonment?

In divorce cases due to abandonment, only the reason of abandonment should be invoked. It is not possible to request a divorce decision on grounds of abandonment and the irretrievable breakdown of the marriage simultaneously. The reason for this is that these two grounds are contradictory.

  • The Principle of Forgiveness: By sending a warning for abandonment, the spouse indicates that they want the abandoning spouse to return home. If the abandoning spouse does return, the spouse’s wrongful acts prior to the warning are deemed forgiven.
  • Conflicting Request: When the spouse issues a warning and invites the abandoning spouse to come home, yet at the same time uses this warning as grounds for divorce, it creates a situation contrary to the purpose of the warning. Therefore, citing an alternative ground for divorce along with abandonment is not recommended.

If I Send a Warning for Abandonment, Does It Mean I Have Forgiven My Spouse?

Yes, by sending a warning for abandonment, you are considered to have forgiven your spouse’s wrongful conduct prior to the date of the warning. This prevents you from filing for divorce based on events that took place before the abandonment warning. For example, you cannot file a contested divorce based on the irretrievable breakdown of the marriage.

Therefore, before filing a divorce case due to abandonment or a contested divorce, you should discuss which legal grounds to use with an attorney. Relying on the wrong legal ground can lead to loss of rights. To learn more about divorce grounds other than abandonment, you can review our article on Contested Divorce Cases.

A representation of the divorce process with a gavel, wedding rings, and the hands of disputing parties on a table.

When Can a Divorce Case Due to Abandonment Be Filed?

The timeline for filing a divorce case due to abandonment is specified in Article 164 of the Turkish Civil Code. Under this article, the following conditions must be met for filing a divorce case due to abandonment:

  1. A Minimum of 6 Months of Abandonment:
    The spouse who has left must be absent from the marital home for at least 6 (six) months, and this separation must be ongoing.

  2. Sending a Warning:

    • Before filing a divorce case due to abandonment, the abandoning spouse must be duly served with a warning as prescribed by law.
    • This warning can only be sent after at least 4 (four) months have passed since the abandonment.
    • After this period, the abandoned spouse may send a warning to the abandoning spouse via a notary public or by applying to a court (See Decision of the 2nd Civil Chamber of the Supreme Court of Appeals, dated 15.04.2009, numbered 2008/4623 E., 2009/7281 K.).
  3. Notification of the Warning and a 2-Month Waiting Period:

    • After the warning has been served to the abandoning spouse, there must be an additional period of at least 2 (two) months. If, during this time, the abandoning spouse fails to return to the marital home without a justified reason and the separation continues, a divorce case due to abandonment may be filed.
  4. Filing the Case Within a Reasonable Time:
    Once the 2-month period following service of the warning has expired, the divorce case must be filed within a reasonable period. If there is a significant delay in filing the divorce case after this period ends, the warning may be deemed contrary to the principle of good faith, leading to possible dismissal of the case.


What Does the Judge Examine in a Divorce Case Due to Abandonment?

In a divorce case due to abandonment, the judge closely examines the following points:

  1. Whether the Grounds for Divorce Are Met:

    • Whether the separation has lasted for at least 6 months.
    • Whether the spouse who left did so with a justified reason.
    • Whether there is a valid reason preventing the abandoning spouse from returning.
  2. The Situation of the Abandoned Spouse:

    • Whether the abandoned spouse was subjected to violence, or whether they prevented the other spouse from returning home.
  3. The Validity and Sincerity of the Warning:

    • Whether the warning sent to the abandoning spouse was lawful and appropriate.
    • Whether the spouse who issued the warning acted contrary to the principle of good faith and merely used the warning to establish grounds for divorce.
  4. Acceptance of the Case by the Defendant:

    • The defendant’s acceptance of the divorce case in a divorce lawsuit due to abandonment does not bind the judge. The judge examines whether all the legal conditions for a divorce due to abandonment are truly fulfilled, irrespective of whether the defendant accepts it.

The Judgment of the Supreme Court of Appeals General Assembly, numbered 2017/2289 E. and 2020/939 K., provides a significant guide on what elements the judge should examine in divorce cases due to abandonment.


Key Points

  1. Duration of Abandonment and Warning Requirement: A 6-month period of abandonment must pass before a lawsuit can be filed, and a warning must be served after 4 months of abandonment.
  2. The Judge’s Power of Investigation: In a divorce case due to abandonment, the judge is obliged to examine all aspects and does not rely solely on the defendant’s acceptance.
  3. Reasonable Time: Delays in filing the lawsuit after the warning may invalidate the warning.

Information about a Sample Petition for a Divorce Case Due to Abandonment

The publication of sample petitions for divorce cases due to abandonment on websites is not considered appropriate both for ethical reasons and because each case has its own unique characteristics. Particularly for a divorce petition due to abandonment, preparing a petition based on a standard format may result in loss of rights, since each case has different details.

Points to Consider When Drafting a Petition:

  1. Risks of Using Ready-Made Templates: Sample petitions for divorce cases due to abandonment found on websites or in books may not suit the specific situation and can be misleading. Consequently, a petition written with incorrect or incomplete information may negatively affect the outcome of your lawsuit.
  2. The Importance of Legal Counsel: Every lawsuit petition should be crafted according to the specific features of the case. A divorce petition due to abandonment should be meticulously drafted from start to finish by a divorce attorney to ensure a successful case outcome. In particular, the content of the petition and the list of evidence must be prepared in line with the lawsuit strategy.
  3. Advantages of Obtaining Legal Services: Attorney support in a divorce case due to abandonment ensures that the petition and the entire litigation process are managed professionally. Preparing a suitable list of evidence alongside the petition is a critical step for the success of the lawsuit.

If you need a sample petition for divorce due to abandonment, you can contact our divorce lawyers through our website to have your petition professionally drafted. You can also take advantage of the legal services we offer regarding contested divorce cases and the process of divorce due to abandonment.

Divorce Due to Abandonment - Frequently Asked Questions

What should I do if my spouse leaves home?

If your spouse leaves home, under Article 164 of the Turkish Civil Code, you must wait for a separation period of 4 months before filing for divorce due to abandonment. Then, you need to send a warning to your spouse via notary or court. If your spouse does not return within 2 months after the warning, you can file for divorce due to abandonment.

Is living separately a ground for divorce?

If one of the spouses leaves the marital home without a valid reason and the separation continues uninterrupted for 6 months, it is considered a ground for divorce under the Turkish Civil Code. However, separation becomes a valid ground for divorce only after the abandonment situation and necessary legal procedures are completed.

Is declaring you do not love your spouse a ground for divorce?

Declaring that you do not love your spouse is not solely a ground for divorce. However, this can be considered as a ground for divorce if supported by other evidence showing that the marital union has fundamentally collapsed.

What is abandonment?

Abandonment occurs when one spouse leaves the marital home without a valid reason and fails to fulfill their marital obligations. Abandonment is considered a ground for divorce if it lasts for at least 6 months and continues despite a warning.

What are the grounds for divorce?

According to the Turkish Civil Code, the grounds for divorce include adultery, attempt on life, gross misconduct, abandonment, mental illness, committing a crime, leading a dishonorable life, and the fundamental breakdown of the marital union.

Is a husband who leaves home considered at fault?

If a husband leaves the marital home without a valid reason and does not return, this is considered a serious fault. This can significantly impact divorce cases based on abandonment.

What does the Supreme Court say about a spouse leaving home?

According to Supreme Court rulings, if a spouse leaves the marital home without a valid reason and continues to stay away for 2 months following a warning, this is sufficient grounds for divorce due to abandonment. (See Supreme Court 2nd Civil Chamber, 2008/4623 E., 2009/7281 K.)

Can a wife who leaves home claim property division?

A wife who leaves home retains her rights regarding property division under the general marital property regime. However, if she is found at fault, her claims for alimony or compensation may be restricted.

Is a wife who leaves home considered guilty?

If a wife leaves the marital home without a valid reason, this can be considered a fault in divorce cases. However, if there is a valid reason, such as physical abuse, leaving the home cannot be considered a fault.

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