Family Relations, Custody, and Fault in Divorce in 7 Questions — Attorney Aylin Esra Eren

Yes. It is possible for the more at-fault spouse to file for divorce. However, if the other spouse objects to the lawsuit within the scope of Article 166 of the Turkish Civil Code, the fault assessment becomes important.

Under the statutory conditions, the more at-fault spouse’s claim may succeed if the objection amounts to an abuse of rights and neither the other spouse nor the children retain a legally protected interest in continuing the marriage.

Therefore, being more at fault is not an obstacle to filing a lawsuit; but it may affect the rendering of the divorce decision.

Monitoring a spouse's social media accounts is not considered psychological violence on its own in every case. However, behaviors such as constantly asking for passwords, checking messages, restricting communication, threatening, humiliating, and isolating from the social circle, when evaluated as a whole, may qualify as psychological or economic violence. The continuity of the behaviors, the pressure it creates, and its impact on the person's freedom are important.

A spouse not working is not a fault on its own. The spouses' contribution to the marital union is not limited to earning income; housework and childcare are also contributions to family life. However, completely failing to participate in the obligations of shared living despite having the working capacity and opportunity, or leaving the other spouse in a difficult economic situation, may affect the fault assessment in the specific case.

Taking a child to another city must be assessed in light of custody rights and existing court orders. Even a parent who holds custody may cause legal difficulties by acting in a way that prevents the child’s contact with the other parent or seriously disrupts the child’s living arrangements. The other parent may ask the family court to revise contact arrangements or order necessary measures. The child’s best interests are always the main criterion.

Whose name the immovable property is registered under and its status as a family residence are important. In terms of the family residence, pursuant to Article 194 of the Turkish Civil Code, transfers cannot be made without the explicit consent of the other spouse. Additionally, if there is a risk of asset concealment or neutralizing the liquidation of the property regime, a precautionary injunction can be requested from the court. However, filing for divorce does not automatically create a sales ban on all assets.

Disagreements between spouses regarding having children are evaluated within the concrete conditions of the marital union. A spouse stating that they do not want children does not mean they will be considered at fault in every case; bodily integrity, freedom of decision regarding reproduction, health status, and the nature of the shared life must be taken into account. Regarding Article 166 of the TCC, whether the marital union has fundamentally shaken and the behaviors of the parties are examined together. Marriage does not constitute a legal basis to force someone to have children.

An automatic divorce or fault result cannot be inferred from a single behavior in this regard. Health problems, violence, pressure, the entirety of the relationship, and the rights of the parties are evaluated in the specific case. Marriage does not justify non-consensual sexual relations; a person's physical and sexual integrity is protected. Whether the dispute leads to the fundamental shattering of the marital union within the scope of Article 166 of the TCC is determined by considering legitimate reasons and all evidence together.