Divorce On The Grounds Of Abandonment
Divorce due to abandonment is one of the special grounds for divorce regulated under Article 164 of the Turkish Civil Code. In addition to being a special ground for divorce, divorce due to abandonment is also an absolute ground for divorce. This means that in case of the existence of the ground of abandonment, a decision will be made regardless of the effect of the shaking of the marriage union from its foundations. In absolute grounds for divorce, since it is certain that the material event will shake the union of marriage from its foundations and the parties will not be able to maintain the union of marriage, it will not be investigated whether this situation also makes the marriage unbearable.
WHAT ARE THE CONDITIONS FOR DIVORCE ON GROUNDS OF ABANDONMENT?
In order to file for divorce on the grounds of abandonment, the conditions stated in Article 164 of the Turkish Civil Code must be fulfilled. These conditions are
ONE OF THE SPOUSES LEAVES THE COMMON LIFE, LEAVES THE COMMON RESIDENCE:
In order to be able to talk about abandonment, one of the spouses must leave the common residence, leave the common life with the other spouse and terminate it without a justified reason. Article 164 of the Turkish Civil Code stipulates that “If one of the spouses leaves the other in order not to fulfil the obligations arising from the union of marriage or does not return to the common residence without a justified reason…”, a divorce case can be filed for abandonment. Therefore, in order to file for divorce after desertion, the failure to return must be based on an unjust cause. For example, in case of not returning to the common residence due to compelling reasons such as military service or criminal conviction, a divorce case cannot be filed due to abandonment.
ABANDONMENT IS THE INTENTION NOT TO FULFIL THE OBLIGATIONS ARISING FROM THE MARRIAGE UNION:
Article 164 of the Turkish Civil Code stipulates that in order for the act of desertion to be subject to a divorce case, it must be for the purpose of not fulfilling the obligations arising from the marriage union, as “One of the spouses leaves the other with the intention of not fulfilling the obligations arising from the marriage union…”. Therefore, acts of desertion that are not performed for this purpose do not constitute a ground for divorce based on Article 164 of the TCC. If the abandoning spouse has left the house based on a justified reason during the separation, a divorce case cannot be filed based on this reason.
SEPARATION DUE TO ABANDONMENT MUST HAVE LASTED FOR AT LEAST 6 YEARS:
If one of the spouses leaves the common life in order not to fulfil the obligations arising from the marriage union or does not return without a justified reason, the other spouse will not be able to file for divorce on the grounds of abandonment immediately after the abandonment. In order to claim for divorce based on this reason, the separation must have lasted for at least 6 months after the act of abandonment. Upon the return of the abandoning spouse within 6 months after the act of abandonment, the other spouse will not have the right to file a divorce case based on the ground of abandonment.
If the abandoning spouse repeats the act of abandonment, the 6-month period recognised in the law will start again. However, the important issue here will arise if the acts of abandonment are continuous. If the abandoning spouse performs the acts of abandonment and returning continuously and prevents the expiration of the 6-month period in this way, this situation should be evaluated within the scope of abuse of right and the 6-month period should be accepted as realised in this way.
FULFILMENT OF THE WARNING CONDITION:
Article 164/2 of the Turkish Civil Code states that “Upon the request of the spouse who has the right to sue, the judge or the notary public, without examining the merits, warns the abandoning spouse that he/she must return to the common residence within two months and the consequences that will arise if he/she does not return. This notice shall be made through announcement if necessary.
However, the warning request cannot be made until the fourth month of the specified period for filing a divorce lawsuit has expired and the lawsuit cannot be filed until two months have elapsed after the warning.” Accordingly, the notice can be served as of the fourth month of the abandonment. After the fourth month of the six-month period determined for filing a divorce case due to abandonment expires, a warning request can be made. In this way, four months of the six-month period must elapse before the notice and two months after the notice. The notice can be sent by the judge or a notary public.
TWO MONTHS AFTER THE WARNING:
After the four-month period recognised in the law, two months must have passed in order to file a divorce case based on the grounds of abandonment. In this respect, the divorce case cannot be filed for divorce on the grounds of abandonment without waiting for two months after the notice. To explain with an example, even if the notice is given after 1 year has passed since the spouse left the common residence, two months must pass after the notice in order to file a divorce case based on the grounds of abandonment.
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