MESCI Law Firm, having its’ head office in Istanbul, Turkey, formed by reputable lawyers registered in Istanbul Bar Association provides legal consultancy and law services for over ten years regarding divorce, material and moral compensation, alimony, child custody, establishment of personal relationship with the child in common, division of marital property, obtaining injunction decision related to protection, education and accommodation for domestic violence victims and many other topic that can be examined under family law, child protection and divorce.
Our law firm in Turkey is experienced on both contested and consensual divorce cases. Clients and client candidates can contact our Istanbul Divorce Lawyers for issuance of divorce protocols to be presented to the court for consensual divorce or marital property division protocols too to be issued before or during marriage.
Under this Article we have published, we tried to answer to the frequently asked questions we receive from our clients and client candidates. We hope all the information below is useful for you. Please do not hesitate to obtain detailed evaluation regarding your own domestic violence or divorce case.
Legal Advice For Divorce In Turkey
There are many parameters that may affect your divorce case before and after you file for divorce. Consulting a divorce lawyer if you are considering to file for divorce, will allow you to relax and feel safe, analyse the unfortunate events you have experienced in your private life, take the right decision for yourself, gain in-depth information about the divorce process and avoid any action that may harm your case.
If you want to divorce from your spouse, you can contact our Istanbul Divorce Lawyer and obtain information about the legal procedures and your rights. Within the scope of requests of recommendation we received from our clients upon the problems they usually face during divorce, we decided to provide herewith some advices that will definitely effect your case in a positive manner. In order to obtain information on a case-by-case basis, please contact our Istanbul Divorce Lawyer.
- Divorce process might be corrosive for you and your child. First try to make sure if you are really willing to divorce or not. You can decide this by obtaining professional help from marital counselling doctors, family and marriage therapists, psychiatrists and psychologists. Applying in order to obtain such help will make you analyse how the common life affects your psychology of you and your children.
- Obtain credible and strategic information from a divorce lawyer regarding contested and consensual divorce and financial and non-financial results of divorce.
- If you believe you and your spouse can agree on the terms and conditions of consensual divorce, both of you can authorize the same lawyer with one Power of Attorney. Consensual divorce cases will be finalized with only one hearing if both spouses agree on all of the terms and conditions of the divorce.
- Do not hide any information from your divorce lawyer. Any information you are hiding might undermine your case. All the information you share with your lawyer is being protected under 1136 numbered Lawyers Act, Article 36, attorney-client privilege.
- If your safety of life and property is not in danger, do not change lock of the matrimonial house.
- Avoid any action that may harm physical and mental integrity of your child.
- After you file for divorce, in order to obtain your personal belongings, you need to make a request from the court. Do not try to enter into the matrimonial house by force.
- Be sure to follow advice of your divorce lawyer. Filing for divorce gives both spouses to live separately. The use of the right to live separately by the spouse who filed for divorce will be interpreted in his/her favour in terms of proving that it is not possible to maintain a common life. As a rule, the person who will stay at home during the divorce process is the spouse who has his/her name in the rental agreement or title deed. However, if there is a disagreement on which spouse will stay in the matrimonial house during the divorce process, the judge will decides by reviewing income of both spouses.
- Collecting your evidences is crucial for your case especially if you are victim of domestic violence and if there is adultery. While you are collecting evidences make sure you are not breaching Turkish Criminal Code, Article 132, violation of confidentiality of communication and Article 133, eavesdropping and recording of conversations between persons.
- If you are a victim of domestic violence in Turkey, seek help from relevant institutions, organizations and authorities. Do not forget that you can directly go to the Chief Public Prosecutors Office and file a criminal complaint and/or apply to the Family Court in order to obtain any protection order. You can also directly apply to police or gendarmerie and ask them to take your statement; to send you to a public hospital in order to obtain a assault report; to take preventive and protective measures under 6284 numbered Code Regarding Protection of Family and Prevention of Domestic Violence Against Women; and Spousal Abuse Incident Registration Form and Risk Evaluation Form to be filled. Or you can apply directly to a hospital and make a complaint before the hospital police and obtain an assault report; it is important to collect evidence that will prove the assault you have experienced, before the marks on your body disappear.
Types Of Divorce In Turkey
Divorce can be defined basically as the termination of the marital union by court decision. Provisions regarding divorce are regulated under the 4721 numbered Turkish Civil Code through Article 161 and the articles following. Turkish Law System makes it possible for the spouse that is willing to divorce, to file a contested divorce case or a consensual divorce case.
A divorce case will be named as a contested divorce case if spouses who are willing to terminate the marital union disagree on the terms and conditions of the divorce. A divorce case where spouses agree on the terms and conditions of the divorce such as alimony, compensation and custody will be named as a consensual divorce case.
When one of the spouses files a lawsuit with the aim to divorce, he can request for divorce by indicating there is a reason for divorce which is listed under 4721 numbered Turkish Civil Code. In such a case the divorce case is being filed as a contested divorce case. In a contested divorce case, the party claiming the ground for divorce is obliged to prove such a reason exists.
In this respect, it is important to collect the evidences proving the reason for the divorce with precision. It is possible to file a contested divorce case based on the general or special divorce grounds regulated under the Turkish Civil Code.
The general reason for divorce stated within the 4721 numbered Turkish Civil Code is the fundamental breakdown of the union of marriage. Article 166/1 states that, if there is a severe breakdown of the union of marriage, and family life that the continuation of common life cannot be expected, either spouse can sue for a divorce. Fundamental breakdown of the union of marriage was known as high-conflict divorce when the former law was in force.
The spouse with no fault or less fault, who filed for divorce by claiming that there is fundamental breakdown on the union of marriage is obliged to prove that the defendant was at fault and his/her fault has led to dissolution of the marriage.
Making fun of the spouse, insulting the spouse, cursing the spouse, acting extremely jealous, avoiding sexual intercourse with the spouse, not wanting guests or family members to visit the house and behaving in an offensive way, meeting third parties for romantic relationship or sexual intercourse through social media platforms, constant drinking problem, neglecting the care of home and children, lack of love and distantness are among the reasons that fundamentally breakdown the union of marriage as per Supreme Court decisions.
Whatever the reason is, Article 166/1 indicates that in order for a divorce decision to be issued by the Family Court based on such reason, continuation of the common life shall be at a level that the spouses cannot be expected to maintain.
On the other hand, adultery, attempt against life, abominable or degrading treatment, committing crime and living a dishonourable life, desertion, mental illness are regulated as special grounds for divorce under Turkish Civil Code. If there is one or more special ground for divorce, the plaintiff spouse is not obliged to prove fault of the defendant, plaintiff will be obliged only to prove the existence of the reason which can be categorized as special ground for divorce.
As per Article 166/4 of 4721 numbered Turkish Civil Code, in a case that the divorce lawsuit filed based on one of the grounds for divorce is dismissed, three years have passed as of the date when this rejection decision is finalized, union of marriage shall be deemed to have incurred a fundamental breakdown if a common life is not successfully established over again for any reason whatsoever within mentioned period thus a decree shall be issued upon request of one of the spouses.
Of course, if a new reason for divorce has emerged within the stated three years period, it is possible to file a new divorce case based on this new divorce reason, without waiting for the period of three years mentioned in the law.
What Are The Reasons For Divorce In Turkey?
The reasons for divorce that can be claimed in a contested divorce case are regulated in order under Article 166 and the following articles of the Turkish Civil Code No. 4721.
- Divorce due to adultery (TCC Article 161),
- Divorce due to attempt against life, abominable or degrading treatment (TCC Article 162),
- Divorce due to actions of the other spouse constituting a crime and leading a dishonourable life (TCC Article 163),
- Divorce due to mental illness (TCC Article 165),
- Divorce due to the fundamental breakdown of marital union and family life (TCC Article 166/1),
- Applying to the court together if the marriage lasted for at least one year (TCC Article 166/3).
In the contested divorce cases, the spouses have disagreements on the reasons for the divorce or terms and conditions of the divorce such as material and moral compensation, custody and alimony. The marital property division case shall be filed separately after the divorce case on the other hand. If the property division case is filed at the same time with the divorce case but as a separate case, the court dealing with the property division lawsuit will make the finalization of the divorce case a pending matter.
Is It Possible To Use Surname Of The Spouse After the Divorce?
With the divorce decree, the woman takes her maiden surname again. A woman who is known by her husbands’ surname during their marriage may wish to continue using her husband’s surname in case of divorce. 4721 numbered Turkish Civil Code, Article 173 states that the divorced woman can keep the family name of the husband if she convinces the judge that she has an interest in using this name and if this does not damage the interest of the former husband.
Court Proceedings In Case of Contested Divorces in Turkey
Contested divorce cases are filed before the Family Courts in the place of residence of one of the spouses or in the place where they have lived together for the last six months previous to the filing of the divorce lawsuit. Contested divorce cases can be concluded within 1 to 3 years depending on the workload of the family court appointed for the case.
Contested divorce cases can be filed based only on Turkish Civil Code Article 166/1 which is severe breakdown of family life or through an alternative pleading indicating Article 166/1 as general ground for divorce along with any other special divorce reason specified in law. For example the plaintiff may request the judge to issue a decision based on adultery, and if the judge comes to the conclusion that terms for the divorce due to adultery are not met, secondarily to issue a decision based on severe breakdown of the union of marriage.
When a divorce lawsuit is filed, the judge of the relevant family court takes the interim measures regarding accommodation of the spouses, childcare and protection of children ex officio.
The spouse, against whom a divorce case has been filed for any reason, may file a counterclaim together with the reply petition or with a separate petition within the 2 weeks of legal response time stated in Turkish Code of Civil Procedure. If the spouse, against whom the divorce case is filed, does not file a counterclaim (counter litigation) within the mentioned period, he/she will only be able to present his/her responses to the case filed against him/her by the plaintiff.
If a counterclaim is not filed within the two-week period of submitting the reply petition, it will be strategic for the defendant spouse to file a separate divorce lawsuit and request joinder of both cases that has a legal connection between them. It is possible to extend the deadline for submitting the two week reply petition, upon request, with a time extension petition as per Turkish Code of Civil Procedure.
Conditions For A Consensual Divorce in Turkey
In Turkish law system, it is possible for spouses to agree on divorce with their free will. The principles regarding consensual divorce are stated under Article 166/3 of 4721 numbered Turkish Civil Code. With an consensual divorce, it is often possible to get a divorce in only one hearing. Consensual divorce lawsuits are known to be finalized between 2 to 4 months maximum. It may take a shorter time depending on the workload of the relevant family court that the case is being examined by.
Pursuant to Article 166/3 of the Turkish Civil Code, it is required that the marriage union has lasted for at least 1 (one) year in order to decide on a consensual divorce. The aforementioned one year period is calculated on the basis of the time elapsed between the date of marriage and the date of filing the lawsuit.
If the marriage has lasted for at least one year, if the spouses apply together or if one spouse accepts the lawsuit other spouse filed, in other words, if there are mutually agreed declarations of will that the spouses want to divorce, the foundation of the marriage union is deemed to have been fundamentally broken down. In this case, in order for a divorce decision to be issued, the judge must listen to the parties in person during the hearing and be convinced that their will has been expressed freely and approve the divorce agreement to be accepted by the parties regarding the financial consequences of the divorce such as alimony and the status of the children.
In other words, although it is possible to file a consensual divorce case through a lawyer, hearing the lawyer during the trial is not sufficient for a divorce judgement to be issued in consensual divorce lawsuits. If a spouse is located in a place other than the place where the divorce case is heard, it is not possible for the spouse to be heard by way of rogatory.
“Financial Consequences of Divorce” mentioned in the Article 166/3 of the Turkish Civil Code does not cover the marital property division. In accordance with the Supreme Court decisions, the claim for participation is not accepted among the ancillaries of the divorce. It is not obligatory for the parties to agree on the division of the marital property during divorce case.
Following the finalization of the divorce order, one of the parties can apply to the family court by filing a marital property division lawsuit. Marital property division lawsuit must be filed within 10 (ten) years following finalization of the divorce order.
On the other hand, in order to include the regulations regarding the division of property in the divorce protocol not to file a separate marital property division lawsuit, all of the properties that will be subject to the marital property division shall be stated within the agreement one by one clearly and the agreement shall be found valid by the Judge.
Procedure For Consensual Divorce In Turkey
Consensual divorce cases are filed before the Family Courts in the place of residence of one of the spouses or in the place where they have lived together for the last six months previous to the filing of the divorce lawsuit like the contested divorce cases.
A consensual divorce case can be filed by joint application of the spouses. In such divorce lawsuits, spouses prepare an agreed divorce protocol together, sign it and present it to the court together. It is recommended that both spouse give a Power of Attorney to the same divorce lawyer in consensual divorce cases to be filed and followed up by a lawyer.
A consensual divorce can also occur as a result of one spouse accepting the contested divorce lawsuit filed by the other spouse. Of course, in such a case, it should be examined by the Judge whether the conditions for consensual divorce specified within the Article 166/3 of the Turkish Civil Code are met and whether the spouses agree on the conditions of the consensual divorce with their own free will or not.
What Must A Divorce Decree Contain?
While a verdict is being issued on a consensual divorce lawsuit, along with the decree about the mutually agreed divorce protocols’ approval, clauses of the protocol itself shall also be included to the verdict enabling the verdict to be wholely in accordance with the divorce protocol and preventing any type of doubt for execution of the protocol by the spouses.
As stated before, in contested divorce lawsuits, divorce decree is the decree that can be issued by the judge if conditions of general or special grounds for divorce stated within the Turkish Civil Code exist. In other words, no other type of decision can be issued, other than divorce, such as discontinuance of a marriage.
As per Article 26 of Turkish Code of Civil Procedure, the judge is bound by the request results of the parties; he cannot decide more than what is requested or anything else other than what is requested. If the spouse against whom the divorce case is filed has filed a counterclaim, these two cases should be considered as separate cases and a separate verdict shall be issued for each of the cases. On the other hand, in a divorce case filed for more than one reason, a decree must be established for each divorce reason.
Divorce Proceedings Of Foreigners In Turkey
It is possible for foreign nationals to divorce in Turkey. If both spouses are foreign citizens living in Turkey, foreign spouses can file for divorce in Turkey, but for this, the marriage must be registered with the Birth Registration Office. If you were married in abroad, in order to get a divorce in Turkey, you must have reported the valid marriage abroad to the Birth Registration Office through the Turkish Consulate and have it registered in the register of persons in Turkey.
If one of the spouses is a foreigner and the other is a Turkish citizen, the divorce case between these spouses and the divorce case between two Turkish citizens will proceed in an almost identical manner. However, it is also common for the foreigner spouse to return to his country and his address cannot be determined. The address of the foreigner spouse whose address is unknown is investigated by the family court upon your lawyers’ request. If the address of the foreigner spouse is determined, the petition and its annexes are first notified to the address detected. If the address information of the foreigner spouse cannot be accessed, it is necessary to apply to the summons by publication method stated within Article 28 of 7201 numbered Notification Law.
On the other hand, if you got married and divorced in abroad, if your marriage was registered in the Turkish Birth Registration Office in Turkey and if you want the foreign divorce decision to be valid in Turkey, it is possible to file a recognition and enforcement lawsuit in Turkey. In order for you to be able to file a recognition and enforcement lawsuit in Turkey regarding recognition and enforcement of the foreign divorce decree, the divorce decision issued in the foreign country must be duly finalized.
If you want to file a recognition and enforcement lawsuit in Turkey, you must submit the foreign court decision, the finalization annotation, the foreign court-approved copies of the divorce decree and the finalization annotation, and notarized sworn translations of all these documents to our lawyers.
In case of divorce of foreign nationals in Turkey, the issue of which law will be applied to the dispute is clearly regulated within 5718 numbered MOHUK, the Law on International Private and Procedural Law. As per Article 14 of MOHUK, the grounds and provisions for divorce shall be governed by the common national law of the spouses. If the spouses have different nationalities, the law of the place of their common habitual residence, in case of absence of such residence, Turkish law shall govern. In divorce cases with the element of foreignness the judge determines the applicable law to the dispute ex officio. If both of the spouses are for example German, Family Law Regulations of Germany will be applied by the Turkish Judge.
Pre-nuptial And Post-nuptial Agreements In Case Of Foreign Citizens’ Separation
Turkish law system enables issuance of nuptial agreements previous to the marriage also known as marital property division agreements previous to or at the time of marriage before the marriage officer (pre-nuptial agreements) or after the time of marriage before a notary public (post-nuptial agreements). As you all will understand a nuptial agreement signed between spouses after marriage can be deemed valid only if it is issued and notarized by a Notary Public based in Turkey. In Turkey, nuptial agreements actually are legal documents that regulate how the property of the parties will be managed during the marriage, and how the properties will be divided when the property is separated and liquidated after the divorce.
Future spouses are not obliged to issue a nuptial agreement (marital property division agreement) previous to the marriage as per Turkish law. Spouses married after the date 01.01.2022 and haven’t chose a specific asset regime defined under Turkish law by issuing a pre-nuptial agreement previous to the marriage, automatically will be subject to acquired asset regime as per Article 220 and following articles of the Turkish Civil Code. However, if spouses are not willing to be subject to acquired property regime, they can make a pre-nuptial agreement before the marriage and determine a specific property regime stated under Turkish law, such as separation of estates regime.
Turkish Family Law And Divorce Regulations
Provisions on family law and divorce in Turkey are regulated under the 4721 numbered Turkish Civil Code. On the other hand, 6284 numbered Law On The Protection Of The Family And The Prevention of Violence Against Women; the Implementation Regulation of the 6284 numbered Code, 5237 numbered Turkish Criminal Code and Constitutional Law are other codes that are used by lawyers under issues related to family law.
Best Divorce Lawyer In Turkey
If you are looking for a divorce lawyer in Turkey, you can contact MESCI Law Firm and consult our experienced team of divorce lawyers about the consensual and contested divorce process. Mesci Law Firm knows deeply that the divorce process is traumatic by nature for spouses especially for woman and the common child thus adopts a sensitive form of communication; listens to her clients deeply and transparently provides in-depth information about the legal process.
We stand by your side until we obtain the finalization statement! Not every lawyer is knowledgeable in every legal area. It is important to follow up the divorce case with a lawyer who is specialized in family law and divorce procedures.
Our law firm in Turkey closed hundreds of domestic violence case with the element of foreignness with success. If you need urgent legal assistance you can directly contact with our English Speaking Turkish Lawyers specialized in Turkish Family Law and Divorce Lawsuits and obtain legal help.
