NECESSARY CONDITIONS TO OPEN A CASE FOR DIVORCE DUE TO Abandonment
Abandonment is the separation of a spouse from the common life and is one of the absolute grounds for divorce. Since abandonment is one of the absolute grounds for divorce, the judge does not need to investigate whether the common life has become unbearable for the other spouse due to abandonment. Article 164 of the Turkish Civil Code (“TMK”) states: “If one of the spouses leaves the other in order not to fulfill their obligations arising from the marriage union or does not return to the common residence without a justified reason, the separation lasted at least six months and this If the situation continues and the warning made by the judge upon the request is inconclusive; The divorced spouse can file for divorce. The spouse who forces the other to leave the common residence or prevents them from returning to the common residence without a justified reason is also considered to have left. Upon the request of the spouse who has the right to file a lawsuit, the judge warns the spouse who leaves without examining the merits, about the need to return to the common residence within two months and the consequences if he does not return. This warning is made by posting when necessary. However, a warning cannot be requested until the fourth month of the certain period to file a divorce lawsuit is over, and a lawsuit cannot be filed until two months have passed after the warning.” formatted.
In order for the court to decide on divorce due to abandonment, the following conditions must be met:
Required Conditions to File a Divorce Case for Abandonment:
Termination of joint life by one of the spouses in order not to fulfill their obligations arising from the marriage union:
This condition is fulfilled if one of the spouses leaves the common life in order not to fulfill the responsibilities imposed on him by the marriage or does not return home without a justifiable reason, even if he has not left the house for this purpose. Since abandonment is a fault-based divorce reason, it is not possible to file a divorce case for a justified reason, for example, for a spouse who goes abroad for work or for a spouse who goes to the military. The spouse’s goal should be to leave the other spouse. However, this condition is also fulfilled if the spouse who leaves the house for another reason, not because of abandonment, does not return home later without a justified reason.
The abandonment lasted for at least six months:
In the event that one of the spouses leaves the other with the aim of ending the common life and not fulfilling the obligations arising from the marriage union, or does not return to the common residence without a justified reason, the divorced spouse cannot file a divorce case immediately. In order for a divorce case to be filed, the separation must have lasted for at least six months and should continue. However, returning home from time to time during the six-month period just to cut the time does not cut the time, but sincere homecomings do. If the same spouse leaves the common residence after a while, a new six-month period starts to run from this date.
The notice has been sent:
In order to decide to divorce due to abandonment, the spouse who left the house must be warned by the judge or notary public to return home within two months at the end of the fourth month following the abandonment event, and the leaving spouse must not have returned home despite this warning. However, if the warning sent by the judge does not specify a time for the spouse who left the house to return home, the warning will not yield any results. If the address of the abandoned spouse is unknown, the warning can be made through an announcement.
Objections related to the warning are examined together with the divorce case. Objections such as whether the necessary conditions for the warning exist or not can be raised while the divorce case is pending. In this way, the spouse who leaves the house must prove that he is right not to leave but to return, otherwise a divorce may be decided.
In case of fulfillment of the above conditions, the right to file a divorce case arises due to abandonment. The judge investigates ex officio whether the conditions exist. If the conditions are met, he decides to divorce.
