DIVORCE CASE DUE TO THE IRRETRIEVABLE BREAKDOWN OF THE MARRIAGE UNION CAUSED BY MIXED VIOLENCE
DIVORCE CASE DUE TO THE IRRETRIEVABLE BREAKDOWN OF THE MARRIAGE UNION BASED ON COMPOUND VIOLENCE
In the section of the newspaper allocated to me this week, I will try to explain a very important issue to you. As you also know, there has been an increase in divorce cases recently. Divorce cases are divided into two categories in the Turkish Civil Code: uncontested and contested.
Divorce cases are regulated in detail in the Turkish Civil Code under the heading of the irretrievable breakdown of the marriage union. Specifically;
Turkish Civil Code
VI. Irretrievable breakdown of the marriage union
Article 166- If the marriage union has been shaken to its foundations to such an extent that the spouses cannot be expected to continue their common life, each of the spouses may file for divorce. In the cases specified in the paragraph above, if the plaintiff's fault is greater, the defendant has the right to object to the lawsuit filed. However, if this objection constitutes an abuse of right and there is no remaining benefit worth protecting for the defendant and the children in the continuation of the marriage union, a divorce may be granted.
If the marriage has lasted at least one year, the marriage union is considered to have been shaken to its foundations if the spouses apply together or if one spouse accepts the other's lawsuit. In this case, for a divorce decision to be rendered, it is a condition that the judge hears the parties personally, is convinced that their wills are expressed freely, and finds the arrangement accepted by the parties regarding the financial consequences of the divorce and the situation of the children appropriate. The judge may make changes he deems necessary in this agreement, taking into account the interests of the parties and the children. If these changes are also accepted by the parties, a divorce is granted. In this case, the provision that the confessions of the parties do not bind the judge shall not apply.
If a lawsuit filed on any of the grounds for divorce is rejected and three years have passed since the date this decision became final, the marriage union is considered to have been shaken to its foundations if the common life could not be re-established for any reason, and a divorce is granted upon the request of one of the spouses.
In Article 185 of the Turkish Civil Code; The marriage union is established between the spouses upon marriage.
Spouses are obliged to ensure the happiness of this union together and to show care for the care, education, and supervision of the children together.
Spouses are obliged to live together, remain faithful to each other, and help each other.
The marriage union between the parties can be shaken due to more than one type of violence. In Supreme Court decisions, this is referred to as compound violence.
Examples of the marriage union being shaken due to more than one type of violence include physical violence, economic violence, sexual violence, emotional violence, social violence, and visual violence.
In determining the fault ratios between spouses within the marriage union, the proportionality of the grounds of violence is taken into account. For example, if one spouse has committed physical violence and the other spouse has committed sexual violence, the spouses are considered equally at fault in the events leading to the divorce. If a spouse who is subjected to economic violence within the marriage union has committed physical violence and emotional violence against the other spouse, they are considered heavily at fault in the events leading to the divorce. There is no hierarchical limitation among the grounds of violence. There is no difference among the grounds of violence in determining fault within the marriage union.
In the Turkish Civil Code, the obligation of loyalty of the spouses also includes economic loyalty towards each other. Spouses engaging in behaviors involving economic violence against each other is an act contrary to their obligations of loyalty, and it appears as a ground for divorce in a divorce case due to the irretrievable breakdown of the marriage union.
The behaviors of spouses regarding economic violence within the marriage union show awareness in Supreme Court jurisprudence. Issues between spouses regarding their union duties, problems regarding working, and failure to meet the needs of the home within the marriage union appear as economic violence.
In the decision of the 2nd Civil Chamber of the Supreme Court dated 25.05.2017, numbered 2016/1012 E. 2017/6204 K.; It is understood from the investigation and collected evidence that the defendant husband did not fulfill the duties required by the marriage union by not paying the rent of the common residence, canceling the natural gas subscription, and avoiding living together. In this case, an incompatibility exists and is proven between the parties to an extent that would shake the common life to its foundations and would not allow for the continuation of the union. Given the flow of events, the plaintiff wife is justified in filing the lawsuit.
In the decision rendered by the 2nd Civil Chamber of the Supreme Court, a spouse closing the home's subscriptions within the marriage union was evaluated within the scope of a divorce case due to economic violence.
In the decision of the 2nd Civil Chamber of the Supreme Court dated 01.06.2020, numbered 2009/5351 E. 2010/10668 K.; It is understood from the investigation and collected evidence that the plaintiff husband used violence against his wife, kicked her out of the house, and did not fulfill his union duties; the defendant wife also put her husband in a cold room, made heavy insults, and did not fulfill her union duties; according to this realization, the weight of the fault lies with the plaintiff husband. In this case, an incompatibility exists and is proven between the parties to an extent that would shake the common life to its foundations and would not allow for the continuation of the union. Given the flow of events, the plaintiff is justified in filing the lawsuit.
In the decision rendered by the 2nd Civil Chamber of the Supreme Court, putting one's spouse in a cold room and making heavy insults within the marriage union was evaluated within the scope of a divorce case due to compound violence.