Grounds for Divorce:

Divorce reasons in Turkish Civil Code are divided in two groups; special divorce reasons and general divorce reasons. We call special divorce reasons as absolute; general divorce are as relative divorce reason. Special divorce reasons; 1) ADULTERY, 2) ATTEMPT AGAINST LIFE, 3) DESERTION, 4) ILL TREATMENT, 5) INDIGNITY, 6) COMMITING CRIME, 7) DISHONORABLE LIVING AND 8) MENTAL ILLNES.

It is not possible to determine general divorce reasons one by one. Yet, any event that causes cohabitation to be unbearable is a general divorce reason.  For example, a general divorce action can be sued against a person who has spent all of the family’s earning in the gambling.  Filing a divorce case for special reasons are governed under certain rules in the law. To be able to file divorce case for special reason, these rule must absolutely be observed. Yet, in case that foundation of the marriage community is shaken due to the special reasons and  the marriage has become unbearable any longer, the parties may file lawsuit at any time alleging that special divorce reason has shaken the foundation of marriage (that is, it became a general divorce ground). For example, a party has got into a habit of abandoning home, and he/she abandons home for at least 1 month in even any smallest quarrel, the other spouse may file divorce lawsuit.

THE REQUESTS WHICH THE PLAINTIFF SPOUSE MAY CLAIM: If legal conditions exist, FAULTY SPOUES OR LESS FAULTY SPOUSE may claim the followings due to the event that caused divorce;

1. DIVORCE

2. PECUNIARY DAMAGES

3. NON-PECUNIARY DAMAGES

4. ALIMONY

5. GUARDIANSHIP OF THE CHILD TO GIVEN HIMSELF/HERSELF

IF FAULTY PARTY FILES LAWSUIT; DEFENDANT MAY REQUEST DISMISSAL OF THE CASE BY PROVING THAT PLAINTIFF HAS MORE FAULT IN THE EVENTS THAT CAUSED DIVORCE.

THE PARTY WHO HAS SUFFERED PECUNIARY DAMAGE BECAUSE OF DIVORCE, MAY FILE PECUNIARY DAMAGE LAWSUIT IF HIS/HER FAULT IS LESS AND PROVE HIS/HER DAMAGE. There are four type alimony:

1. PRECAUTIONARY ALIMONY

2. POVERTY ALIMONY

3. CHILD MAINTENANCE

4. SPOUSAL SUPPORT

Precautionary alimony; it is a kind of alimony which is claimed for the protection when the case is filed. It must be paid during the divorce case, namely, until the decision is finalised. This alimony is named, according to circumstance, as poverty alimony or maintenance alimony when the decision is finalised. Poverty Alimony: it is the kind of alimony which can be claimed by the spouse who might become poor because of divorce against the other spouse.  Child maintenance alimony: it is the alimony to be paid for the purpose of participating in the maintenance and education expenses of the child by the spouse, to whom guardianship is not given.

Spousal Support: it is the alimony to be paid for the lineal kinship and brothers/sisters who may fall into poverty when the support is not given. This type of alimony is different from the one that is claimed through divorce case. It is a separate case subject. The alimony case filed against the father by the child who continues his/her training until 20 years is an example for this.

THE PERSON WHO MIGHT GET POOR DUE TO THE DIVORCE MAY CLAIM, STARTING FROM THE LAWSUIT DATE, PRECAUTIONARY ALIMONY WHICH CAN BE CONVERTED TO POVERTY ALIMONY LATER ON. 

THE SPOUSE WHO GAINED GUARDIANSHIP MAY CLAIM CHILD MAINTENANCE FOR THE MAINTENANCE AND TRAINING OF THE CHILD.

Division of Property in Divorce:

Spouses may make property sharing on their own when they get divorced. Yet, if any dispute arise in this subject, this situation is a separate lawsuit subject. The parties may request property division when they file the case. However, the court separates this case; keeps it waiting. Since, in order for the property sharing to be made, divorce decision must be finalised.  Apart from that, the parties may file a separate divorce case for property sharing after divorce decision is finalised, if they wish to do so. In this case, highly comprehensive and detailed investigations are conducted. The courts often give the file to the experts and make the calculation done.

IMPORTANT POINT IN PROPERTY SHARING IS THAT; WHEN AND HOW HAVE THE PARTIES EARNED THE PROPERTIES AND WHEN HAVE THEY MARRIED. Turkish Civil Code 4721 took effect in 01 January 2002.   THOSE WHO HAVE MARRIED BEFORE THIS DATE ARE LEGALLY SUBJECTED TO SEPERATION OF ESTATE REGIME UNTIL 01 JANUARY 2002. AFTER THE DATE OF 01 JANUARY 2002, THEY ARE SUBJECTED TO THE ACQUIRED PROPERTY REGIME. THOSE WHO ARE MARRIED AFTER THE DATE OF 01 JANUARY 2002 ARE LEGALY SUBJECTED TO THE REGIME OF PARTICIPATING IN THE ACQUIRED PROPERTIES. The subjected parties may select other marital property regimes provided in civil code in notary if they wish so.  The sharing is then made according to selected regime. The whole properties are summed up first. The properties that are acquired before marriage, personal properties and those which are listed in the law are extracted from this total. The properties that are earned before 2002 are left to one who possess them. The additions provided in the law are made to the properties that are earned after 2002.  After personal properties and legal extractions are made, nominal value of the remaining balance is then distributed.

Acquired properties are those which have been earned by labour during continuation of the marriage. That is, they have been added to the properties by means of labour. These properties are shared.

Acquired properties:

1. ACQUISITION IN RETURN FOR EMPLOYMENT (SUCH AS WAGE, SALARY)

2. PAYMENTS MADE BY SOCIAL SECURITY AGENCIES (FOR EXAMPLE, RETIREMENT PENSION)

3. COMPENSATION PAID IN RETURN FOR THE LOSS OF WORKING ABILITY

4. INCOMES OF PERSONAL PROPERTIES (RENTAL RECEIVABLE, INTEREST)

5. VALUES SUBSITUTING ACQUIRED PROPRETIES (THE CAR ACQUIRED BY PREMIUM EARNINGS)

Personal Properties:

1. THE PROPERTIES UTILISED FOR PERSONEL USAGE (WATCH, BAG, TREADMILL)

2. PROPERTIES THAT ARE POSSESED BY A SPOUSE AT THE BEGINNIG OF MARITAL PROPERTY REGIME (THE CAR BOUGHT BEFORE MARRIAGE, FOR EXAMPLE)

3. THE PROPERTIES ACQUIRED BY INHERITENCE (PATRIMONIAL HOUSE)

4. PROPERTY VALUES THAT ARE ACQUIRED THROUGH GRATUITOUS ACQUSITION (NATIONAL LOTTERY)

5. RECEIVABLES OF NON-PECUNIARY DAMAGES

6. VALUES SUBSTITUTING PERSONAL PROPERTIES (HOUSE EARNED BY THE PREMIUM PAYMENTS)

Marital property regimes provided by Civil Code:

Property regimes in Turkish Civil Code are provided as legal property regime and selective property regime. There are FOUR property regime in our Civil Code. These are;

1) Participating in acquired properties,

2) Separation of properties

3) Shared property separation

4) Community property

Participating in acquired properties is a legal property regime, and the other are SELECTIVE PROPERTY REGIMES.

The claims which might be asserted in Property Division (Dissolution) case;

Petitioning spouse may claim;

1. Dissolution of property regime,

2. His/her sharing receivable,

3. His/her value increase share, if any.

In dissolution, each spouse has a PARTICIPATION RECEIVABLE RIGHT over half value (residual value) of the acquired properties of other spouse during dissolution. Acquired properties that exist during the time when property regime is terminated are taken into account by their dissolution time values. Termination of property regime is one thing and dissolution time is another.  In addition, unlike dissolution of property regime and participation receivable right at the time of dissolution, if a spouse contributed to the acquisition of other spouse’s property, he/she will have, in proportion to his/her contribution, the right of receivable, namely, SHARE INCREASE RECEIVABLE for the value increase of this property which is occurred at the time of dissolution, and this receivable is accounted according to the dissolution time value of that property.

A&N LAW OFFICE 2015