Divorce (Turkey)

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According to Turkish law , a judicial divorce ( Turkish Boşanma ) is possible for reasons of fault as well as reasons of disruption.

history

Latife Hanım (Uşşaki) and Mustafa Kemal Pascha (Ataturk), whose marriage was ended in 1925 by repudiation

When the Ottoman Civil Code ( Mecelle ) was not taken into account, family law was partially codified for the first time at the beginning of the 20th century. The short-lived regulation on family law regulated in Art. 102 ff. Not only the divorce of Islamic marriages but also the divorce law of non-Muslim minorities.

The end of World War I also brought the end of the Ottoman Empire. After the “ war of liberation ”, which was successfully waged from the Turkish point of view, Turkey undertook to reorganize its legal and judicial system in the Treaty of Lausanne of July 24, 1923 in return for the lifting of the capitulations under international law. Initially, an integration of Islamic law into the new legal system was expressly planned in the field of civil law , but the government [!] Ultimately rejected the project in favor of a comprehensive reception of European law. On April 4, 1926, the translation of the official French text of the Swiss Civil Code (chZGB) was published with minor changes as the Turkish Civil Code (tZGB) in the Official Journal . Together with the new Code of Obligations, the tZGB came into force on October 4, 1926.

On January 1, 2002, a new version of the tZGB came into force, which does not contain any substantive changes with regard to the reasons for divorce.

Preliminary remark

The Turkish divorce law is standardized in Art. 161 ff. TZGB. Articles 161 to 166 tZGB contain a final catalog of reasons for divorce (boşanma sebepleri) , in which a distinction must be made between absolute (mutlak) and relative (nisbî) reasons for divorce. In contrast to relative grounds for divorce, which require an examination of the reasonableness of the continuation of the marriage and determination of an actual deep breakdown of the marriage, the fulfillment of the criteria for an absolute reason for divorce establishes an irrefutable presumption that the marriage is deeply broken.

In addition, according to Turkish doctrine, a distinction is made between special (özel) and general (genel) reasons for divorce. While the special reasons for divorce in Art. 161 to 165 tZGB include certain individual facts about divorce, the general reasons for divorce in Art. 166 tZGB, which are based on the breakdown principle, are formulated without describing specific situations.

Divorce actions can be based on several grounds for divorce, with the particular grounds for divorce taking precedence as leges speciales .

After the greatest possible agreement, the judge can also refer to Swiss literature and jurisprudence to clarify cases of doubt, provided that this is compatible with Turkish law. It should be noted, however, that since the revision of the chZGB that came into force in 2000, there are no longer any similarities between Turkish and Swiss divorce law.

Special reasons for divorce

Adultery

Adultery (zina) within the meaning of Art. 161 tZGB is a special, fault-dependent and absolute reason for divorce, which is defined as the voluntary union of a spouse with a third person of the opposite sex. Same-sex intercourse and sexual contact with animals do not constitute adultery, but other reasons for divorce come into consideration.

According to Art. 161 Para. 2 TZGB, the period to be observed ex officio for filing an action is six months from the point in time at which the spouse entitled to take legal action became aware of the act of adultery (relative period) or, regardless of the knowledge, five years of the The time at which the adultery was committed (absolute time limit). In the case of repeated adultery, the period does not start until the day of the last act of adultery.

A forgiveness (af) removes the right to sue in accordance with Art. 161 Para. 3 TZGB. In contrast to previous Swiss law (cf. Art. 137 Para. 3 aF chZGB), consent to adultery is deliberately not found in the wording. According to the prevailing opinion , the prior consent due to immorality (ahlâka aykırılık) is irrelevant with regard to the right to sue . The lawsuit does not rule out personal adultery.

The term zina originally comes from Islamic law , which was used in the Ottoman Empire . In today's legal practice, however , Zina has lost its connection with Islamic law and can only be indirectly associated with Zina in Islam .

Life re-enactment, abuse or defamation

In Art. 162 tZGB two or three reasons for divorce are standardized according to different literary opinions. Since the dispute is ultimately irrelevant, three reasons for divorce are assumed below.

The stalking after life (hayata kast) within the meaning of Art. 162 Para. 1 Alternative 1 tZGB is a special, fault-dependent and absolute reason for divorce, which presupposes an act of intent against the life of the other spouse; mere threats are not enough. It is irrelevant whether the attack on life occurred through action or failure .

Severe mistreatment (pek kötü davranış) is also a special, fault-based and absolute reason for divorce. Serious abuse within the meaning of Art. 162 Paragraph 1 Alternative 2 tZGB is any deliberate act that is capable of seriously impairing the physical or psychological integrity of the other spouse.

Seriously insulting behavior (ağır derecede onur kırıcı davranış) is also a special, fault-based and, according to the prevailing opinion, an absolute reason for divorce. The concept of honor (onur) , which is here the direct and exclusive object of attack, is, according to the prevailing opinion, the respect for oneself (“inner honor”) and in particular the appreciation of the person in society (“outer honor”).

According to the reason for the divorce of the adultery, the action must be brought within six months after the spouse entitled to sue is aware of the reason for the divorce (relative period), but at the latest within five years after the occurrence of the reason for the divorce (absolute period), Art. 162 para. 2 tZGB. In the event of forgiveness, the right of action is excluded in accordance with Art. 162 Para. 3 TZGB.

Crime and lifestyle

Art. 163 tZGB contains two separate elements of fault. Both committing a dishonorable crime (küçük düşürücü bir suç işleme) and a dishonorable way of life (haysiyetsiz hayat sürme) are special and relative grounds for divorce.

Dishonorable offenses are not defined in the law. According to the prevailing opinion, embezzlement, embezzlement, acceptance of benefits, bribery, theft, fraud and forgery (cf. Art. 76 of the Constitution ) can constitute grounds for divorce within the meaning of Art. 163 Alternative 1 tZGB.

A dishonorable way of life is given when behavior that persists over a certain period of time, according to the general opinion, degrades the spouse's honor and makes it contemptible in the eyes of the spouse.

There is no time limit for filing the action .

Malicious leaving

If a spouse leaves the common marital home with the intention of not fulfilling the marital obligations or for no other important reason, the abandoned partner has the right to bring an action for divorce (Art. 164 tZGB).

But first the abandoned partner must submit an application for a court order to return (ihtar) , which can only be made after at least four months since leaving. If another two months have passed without success after this request to return, divorce proceedings can be filed.

Mental illness

Art. 165 TZGB records mental illness (akıl hastalığı) as the last special and relative reason for divorce . If one spouse becomes ill with a mental illness, the other partner can seek divorce. In order for the mental illness to be a reason for divorce, however, it must be incurable, which can be attested by medical experts .

Before the civil law reform in 2002, the mental illness had to be present for at least three years.

General reasons for divorce

Disruption

If the marital union is so deeply shattered that the continuation of the marital union cannot be expected of any of the spouses, each of the spouses can file an action for divorce in accordance with Art. 166 Paragraph 1 TZGB. However, this is only available to the partner who is less guilty of the breakdown (Art. 166 para. 2 tZGB). If the defendant shows that he is less guilty and objects, the divorce petition will be denied. If neither partner is to blame for the breakdown (e.g. due to illness), both partners can apply.

Fundamental differences of opinion must exist for the marriage to be deeply broken. Everyday disputes are not regarded as such, rather the serious conflicts must persist and attitudes towards marriage or its obligations must be questioned by at least one of the spouses.

In addition to this objective component, there is also a subjective component. Thereafter, the continuation of the marriage must be unbearable for at least one of the spouses. Recognition of this is at the discretion of the judge .

Divorce by mutual consent

Since the civil law reform in 1988, married couples can divorce by mutual agreement (Art. 166 Para. 3 TZGB). For this, the marriage must have existed for at least one year. The divorce petition must be filed by both spouses or by one partner with the other's consent. In addition, both spouses must appear before the judge in person to confirm that they agree.

Another requirement is that the two partners have agreed in writing on the financial consequences ( compensation , maintenance ) and on joint children ( custody ). This agreement has to be confirmed by the judge and improved if necessary.

Factual separation

According to Art. 166 Para. 4 TZGB, a divorce can be sought if three years have passed after a divorce suit has been rejected and the marital union has not been reestablished. A new application must be submitted.

statistics

Divorces Turkey special reasons.svg
Divorces based on special reasons for divorce (2005-2010)
Divorces Turkey Alter.svg
Divorces by age group (2010)


In 2010, a total of 118,568 divorces were registered in Turkey, 4,406 or 3.72% more than in the previous year. Almost 40% of all divorces occurred within the first five years of marriage. The breakdown (Art. 166 tZGB) represented the most frequent reason for divorce with around 95%, followed by the special reasons for divorce of leaving (Art. 164 tZGB) in second place and adultery (Art. 161 tZGB) in third place.

In 2009, a total of 7,838 marriages in which at least one spouse was Turkish citizens were divorced in the Federal Republic of Germany . While 2,187 cases were Turkish-Turkish marriages, 3,240 divorces were counted in which one spouse had German citizenship (German woman / Turkish man: 2,491; Turkish woman / German man: 749).

literature

  • Christian Rumpf, Hanswerner Odendahl, Country Report Turkey, International Marriage and Customer Law (edited by Bergmann / Ferid / Hausmann / Dörner, 203rd delivery, Frankfurt 2013).
  • Turgut Akıntürk, Derya Ateş Karaman: Türk Medenî Hukuku. Aile Hukuku. 13th edition. Volume 2, Beta, Istanbul 2011, ISBN 978-605-377-423-5 , pp. 235-318 (cited as Akıntürk / Karaman: Aile Hukuku. ).
  • Walter Bühler, Karl Spühler: Swiss Civil Code. The family law. 1st Department, Marriage Law. 1st part volume, 2nd half, The divorce. Articles 137–158 Civil Code. 3. Edition. Verlag Stämpfli & Cie AG, Bern 1980 (quoted as: Bühler / Spühler: Berner Commentary. Art., Rn.).
  • İbrahim Ercan: Judges and parties in divorce proceedings. A comparative law study on German, Swiss and Turkish law. Herbert Utz Verlag, Munich 2000, ISBN 3-89675-742-3 ( Munich legal contributions. Volume 10).
  • Kasım Özen: The reasons for divorce in the Turkish civil code. Peter Lang, Frankfurt am Main 2010, ISBN 978-3-631-60814-2 ( Studies on Comparative and International Law. Volume 167).

Web links

References and comments

  1. ↑ See Mehmet Ünal: Medenî Kanunun Kabulünden Önce Türk Aile Hukukuna İlişkin Düzenlemeler ve Özellikle 1917 Tarihli Hukuk-i Aile Kararnamesi. In: Ankara Üniversitesi Hukuk Fakanschesi Dergisi. Volume 34, No. 1-4, 1977, pp. 195-231.
  2. ↑ حقوق عائله قرارنامه سی / Ḥuḳūḳ-ı ʿĀʾile Ḳarār-nāmesi ; Emergency ordinance with legal force of October 25, 1917, Taḳvīm-i Veḳāyiʿ No. 3046 of October 31, 1917. Repealed by the emergency ordinance with legal force of June 19, 1919.
  3. ↑ Arzu Oğuz: Türk Medenî Hukuku'nun Gelişim Çizgisi ve Karşılaştırmalı Hukukun Rolü. In: Ankara Üniversitesi Hukuk Fakanschesi Dergisi. Vol. 55, No. 1, 2006, pp. 195-206 (200).
  4. ↑ Hans Schlosser : Fundamentals of the modern history of private law. Legal developments in a European context. 10th edition. CF Müller Verlag, Heidelberg 2005, p. 214.
  5. ↑ Ernst E. Hirsch: Reception as a social process. Explained using Turkey as an example. Duncker & Humblot, Berlin 1981, p. 30 ff.
  6. ↑ Gottfried Plagemann: From Allah's Law to Modernization by Law. Law and Legislation in the Ottoman Empire and the Republic of Turkey. Lit Verlag, Berlin / Münster 2009, ISBN 978-3-8258-0114-4 , p. 168 ff.
  7. ↑ تورك قانون مدنیسی / Türk Ḳānūn-ı Medenīsi ; Law No. 743 of February 17, 1926, RG No. 339 of April 4, 1926.
  8. ↑ بورجلر قانونی / Borclar Ḳānūnı ; Law No. 818 of April 22, 1926, RG No. 366 of May 8, 1926.
  9. ↑ Law No. 4721 of November 22, 2001, RG No. 24607 of December 8, 2001.
  10. ↑ Christian Rumpf: Introduction to Turkish Law. , 2nd edition, Munich 2016, § 12, marginal no. 75 f.
  11. ↑ Erhan Temel: Divorce under Turkish law, with special consideration of the decisions of the Court of Cassation. In: StAZ. 56th year, No. 11, 2003, p. 325 f.
  12. ↑ Akıntürk / Karaman: Aile Hukuku. P. 243 f.
  13. ↑ See Bühler / Spühler: Berner Commentary. Introduction, Rn. 49.
  14. ↑ Kasım Özen: The reasons for divorce in the Turkish civil code. Peter Lang, Frankfurt am Main 2010, p. 26 ff.
  15. ↑ Erhan Temel: Divorce under Turkish law, with special consideration of the decisions of the Court of Cassation. In: StAZ. 56th year, No. 11, 2003, p. 324 f.
  16. ^ İbrahim Ercan: Judges and parties in divorce proceedings. A comparative law study on German, Swiss and Turkish law. Herbert Utz Verlag, Munich 2000, p. 14 f.
  17. ↑ Kasım Özen: The reasons for divorce in the Turkish civil code. Peter Lang, Frankfurt am Main 2010, p. 37 with additional information
  18. ↑ a b Erhan Temel: Divorce under Turkish law, with special consideration of the decisions of the Court of Cassation. In: StAZ. 56th Volume, No. 11, 2003, p. 328.
  19. ↑ The periods are forfeiture periods (hak düşümü süresi) ; see Bühler / Spühler: Bern Commentary. Introduction, Rn. 61 ff; Akıntürk / Karaman: Aile Hukuku. P. 248 with further references
  20. ↑ Kasım Özen: The reasons for divorce in the Turkish civil code. Peter Lang, Frankfurt am Main 2010, p. 48 f.
  21. ↑ Akıntürk / Karaman: Aile Hukuku. P. 247 fmwN
  22. ↑ a b Cf. Kasım Özen: The reasons for divorce in the Turkish civil code. Peter Lang, Frankfurt am Main 2010, p. 55 with additional information
  23. ↑ See Bühler / Spühler: Berner Commentary. Art. 138, marginal no. 3.
  24. ↑ Akıntürk / Karaman: Aile Hukuku. P. 249.
  25. ↑ Kasım Özen: The reasons for divorce in the Turkish civil code. Peter Lang, Frankfurt am Main 2010, p. 58.
  26. ↑ On abuse as a relative reason for divorce see Bilge Öztan: Aile Hukuku. Turhan Kitabevi, Ankara 2004, p. 384.
  27. ↑ See Bühler / Spühler: Berner Commentary. Art. 138, marginal no. 17th
  28. ^ Bühler / Spühler: Bern commentary. Art. 139, marginal no. 11.
  29. ↑ Evlenme ve Boşanma İstatistikleri - Marriage and Divorce Statistics 2010. Statistics Institute of Turkey, Ankara 2011, p. 65 ff. ( PDF file; 2.41 MB ; Turkish / English).
  30. ↑ Elle Krack-Roberg: Ehescheidungen 2009. In: Economy and Statistics. Federal Statistical Office, Wiesbaden 2011, pp. 239–255 (253) ( PDF file; 673 kB ( Memento of the original dated November 15, 2011 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this note. ). @1@ 2Template: Webachiv / IABot / www.destatis.de