The Divorce On the Ground of Abandoning the Marital Home

The divorce on the ground of leaving the marital home is indicated at article 164 of the Turkish Civil Code No.4721. According to the Article 164, the spouse who has been left, may file a divorce case if one of the spouses leave the other spouse or does not come back to the marital home without a fair cause with intent to not to perform the obligations arising from the marriage and if the abandonment lasts at least 6 months and still continues and the notice of returning home by judge or notary remains inconclusive. The spouse who makes the other spouse abandon the marital home or does not allow the other spouse to return the marital home without a fair cause is also deemed that he/she has abandoned.
The judge or the notary sends a notice to the spouse who abandons to return the marital home in 2 (two) months and warns the spouse about the consequences of the non-performance of returning without examining the basis of the abandonment. The notice could be send by the judge or notary 4 (four) months after the abandonment and the divorce case may not be filed before 2 (two) months of period is completed after the notice.

Four Conditions For Filing a Divorce Case

The abandonment is an absolute and special cause of divorce and means that one of the spouses abandons the marital home. Therefore, the acts such as avoiding from sexual relationship or crossing with each other etc. while the spouses live at the marital home may not be deemed in the scope of abandonment. In order that the judge may give the divorce decision on the ground of abandonment, there must be 4 (four) conditions all in one:

1) Termination of living together with intent to not to perform the obligations arising from the marriage

According to the Article 185/3 of the Turkish Civil Code No.4721, the spouses have to live together. Therefore, in order to file a divorce case on the ground of abandonment, the abandonment has to be performed with the intent of termination of living together. The spouse who makes the other spouse abandon the marital home or does not allow the other spouse to return the marital home without a fair cause may not file the divorce case. Its’ called ‘ abandonment of fiction’ on practically. The spouse who is carry out to an abandoned of fiction can not sue for a divorce proceeding that due to abandonment. In case that one of the spouses leaves the marital home due to commercial or occupational activity or another obligatory reasons, it may not be considered as abandonment.

2) Abandonment has to last at least 6 months

The spouse who has been left may not file a divorce immediately after one of the spouses leaves the other one or do not return the marital home without a fair cause in order to not to perform the obligations arising from the marriage. In order to file a divorce case, the abandonment or failure of returning has to last at least 6 (six) months and it still has to continue. The longness of the abandonment does not effect cause of action. There is no latest term to file the divorce case.

If the spouse returns home in two months ingenuously and abandons the marital home again after some time, 6 month of abandonment period starts from the begining again. However, if the spouse returns home in two months with intent to rule out the abandonment period, the 6 month of abandonment period is considered as completed.

3) The notice has to be send to the spouse who has abandoned

In order to file a divorce case, a notice of returning home in two months has to be send to the spouse who has abandoned the marital home by the end of 4 month of abandonment period and the spouse does not return home despite the notice. Therefore, the divorce case on the ground of abandoning the marital home may be filed at the end of sixth month at the earliest. The notice has to be send by the judge or the notary. The notice is essential element of the case and the notice may be claimed from any family court in Turkey.

4. The spouse is not supposed to return home despite the notice

The aim of the notice is to remind the spouse the consequences of the abandonment once more and it is accepted as the essential element of the divorce case. The notice is considered as in accordance with process of law after she/he receives the notification in case the address of the spouse is known or after the completion period of notice by publication in case the address of the spouse is not known. The judge of the Family Court is responsible to send the notice to the spouse who has left and he can not examine the conditions of the abandonment when it is applied for notice request. The decision of sending the notice may not be objected and it is definitive judgment. If the judge overrules the request, the requisitioner spouse may object to the decision at the Supreme Court.

In Case One of the Spouses is a Foreign

In case that one of the spouses is not a Turkish citizen or they are both foreigners, the related provisions of the International Private and Civil Procedure Law Code No.5718 is applied in order to file a divorce case on the basis of abandonment. According to the Article 14 of the Code titled “Divorce and Separation”, the grounds and the provisions for divorce and separation is subject to the spouses’ mutual national law. If the spouses are from different nationalities, the law of the mutual habitual residence is applied and if there is no mutual habitual residence, Turkish Law is applied. This provision is also applied in case of separation.

Batuhan Belkan

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