One of the recognized legal grounds for divorce in Turkiye is abandonment (leaving), which occurs when one spouse leaves the marital home without a justified reason. The Turkish Civil Code (TCC) provides specific provisions for divorce based on abandonment, aimed at protecting the rights of the spouse who has been deserted. This article will explain what constitutes abandonment under Turkish law, the legal process for filing for divorce on these grounds, and key considerations to keep in mind.
1. Legal Definition of Abandonment
Under Article 164 of the Turkish Civil Code, abandonment is defined as a situation in which one spouse leaves the marital home without a justifiable cause and fails to return. The abandonment must be continuous and must last for at least six months for it to serve as grounds for divorce. It can also occur when one spouse forces the other out of the marital home without a valid reason.
The abandonment is described in the law as:
TCC Article 164/1:
If one of the spouses leaves the other spouse with the intention of not fulfilling his/her obligations arising from the union of marriage or does not return to the common residence without a justifiable reason, if the separation has lasted for at least six months and this situation continues and the warning made by the judge or notary public upon request is ineffective; the abandoned spouse may file for divorce. The spouse who forces the other to leave the common residence or prevents the other from returning to the common residence without a justifiable reason shall also be deemed to have abandoned.
There are two essential types of abandonment:
Physical Abandonment: When one spouse physically leaves the shared residence without any legitimate reason.
Constructive Abandonment: When one spouse forces the other to leave the marital home, essentially abandoning the spouse without physically departing themselves.
In both cases, the spouse filing for divorce must prove that the abandonment was unjustified and that they have made reasonable efforts to encourage the other spouse to return to the marriage.
2. Conditions for Filing a Divorce Based on Abandonment
For abandonment to serve as valid grounds for divorce, several key legal conditions must be met:
Six-Month Absence: The spouse must have been absent from the marital home for a continuous period of at least six months. This period begins when the abandoning spouse leaves and does not attempt to return.
No Justifiable Reason: The abandonment must be without a valid or justifiable reason. Reasons such as safety concerns, health issues, or significant disputes may be considered justified, and in such cases, abandonment cannot be grounds for divorce.
Issuance of a Notice: The abandoned spouse must issue a formal legal notice to the abandoning spouse, requesting them to return to the marital home. This notice is sent through the court and is a critical step in the process. If the abandoning spouse does not return within two months after receiving the notice, the abandoned spouse may file for divorce.
Ongoing Refusal to Return: If the spouse continues to refuse to return to the marital home within two months of receiving the legal notice, the abandonment becomes legally actionable, and the abandoned spouse can proceed with the divorce process.
3. Process of Filing for Divorce on the Grounds of Abandonment
The process for filing a divorce on the grounds of abandonment follows several steps:
Initiating the Legal Notice: The first step is for the abandoned spouse to file a request with the family court, asking that a legal notice be sent to the abandoning spouse. The court will issue this notice, giving the abandoning spouse two months to return to the marital home.
Waiting for the Response: After the notice is issued, the abandoned spouse must wait for two months to see if the abandoning spouse will return. If they return within this period, the grounds for abandonment are no longer valid, and divorce cannot be filed based on this reason.
Filing for Divorce: If the spouse does not return within the two-month period, the abandoned spouse can file for divorce, citing abandonment as the reason. The divorce petition will be submitted to the family court, where the case will be heard.
Providing Evidence: The abandoned spouse must provide evidence that the abandonment was unjustified and that they followed the correct legal procedures, including issuing the notice. This evidence may include the legal notice, witness testimony, or other documentation demonstrating the abandonment.
4. Legal Consequences of Abandonment in Divorce Cases
Once abandonment is established as the cause of divorce, several legal consequences may follow, particularly in areas like alimony, child custody, and division of property:
Alimony: The spouse who abandoned the marital home without a valid reason may be ordered to pay alimony to the abandoned spouse. This is particularly likely if the abandoned spouse has suffered financial hardship as a result of the abandonment.
Child Custody: In cases involving children, abandonment can significantly impact custody decisions. The court will prioritize the best interests of the children, and if the abandoning spouse’s actions negatively affected the children’s well-being, it may influence the court’s decision to grant custody to the other parent.
Division of Property: While the division of marital property is generally determined based on equitable principles, the fault of one spouse in abandoning the marriage can play a role in how assets are divided. The abandoning spouse may receive a smaller portion of the marital assets if their abandonment caused financial or emotional harm to the other spouse.
Compensation: The abandoning party may be ordered to pay financial compensation and moral damages. The amount of this compensation is basically determined according to the degree of fault of the abandoning spouse and the socio-economic situation of the parties.
5. Common Defenses Against Claims of Abandonment
Spouses accused of abandonment may present various defenses to challenge the claim. Some of the most common defenses include:
Justifiable Reason for Leaving: The abandoning spouse may argue that they left the marital home due to a legitimate reason, such as domestic violence, safety concerns, or health issues. If the court finds these reasons valid, the abandonment claim will likely be dismissed.
No Legal Notice: If the abandoned spouse failed to issue the required legal notice or if the notice was improperly issued, the abandoning spouse may argue that they were not given the opportunity to return, invalidating the claim of abandonment.
Reconciliation Attempt: If the abandoning spouse can show that they attempted to reconcile or return to the marital home but were prevented from doing so by the abandoned spouse, this may also serve as a defense against the abandonment claim.
If there is no agreement between the parties to divorce or maintain the marriage, such claims will be discussed in the course of the proceedings. The court will make a decision according to the parties’ ability to prove their claims. The litigation strategy should be prepared taking into account the specific circumstances of each case and case.
6. Alternative Rightful Grounds for a Divorce
What issues or behaviors can be addressed as grounds for a divorce? Please check our “Grounds for Divorce in Turkiye” article.
7. Methods and Process of a Divorce
For methods and process of a divorce, we recommend you to read our article “Divorce in Turkey: Process, Tips and Consequences”
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