Divorce Decision in Turkey and the Results

Consequences of a Divorce Decision in Turkey

Introduction

Turkey’s Constitution provides for several protections to the institution of family that are implemented through several statutory laws. The family is defined as the foundation of Turkish society, and the state must take necessary precautions to maintain the stability of families in Turkey and addresses the principle of equality between men and women. There are additional protections afforded under the Turkish Civil Code (Law No 4721) which govern marriage, marital breakdown, and the welfare of children. However, issues may arise when there is a breakdown of the marital structure, which can result in divorce.

In Turkey, divorce can be based on a number of grounds, including what is known as a divorce decision. This can either involve a breakdown of the marriage or consensual divorce. This differs from a decision of annulment whereby a court grants a legal decree that the marriage is effectively null and void. This may be based on the fact that either spouse is suffering from a mental disease or either of them consented to marry by mistake.

Consequences of a Divorce Decision

Not only does the marriage end by a divorce decision, but several other consequences flow from it, including the consequences of divorce regarding the ex-spouses.

1. Consequences of Divorce Regarding the Ex-Spouses

Article 130 of the Turkish Civil Code (“TCC”) states that once the divorce resolution has been finalized, the present marriage will end. The period of limitation will start to run afterwards.

1. Termination of the Marriage and the Opportunity to Remarry

Both ex-spouses, on the finalization of the divorce resolution, can go back to being single and/or remarry if they so desire. However, Article 132 of the TCC creates a minor hindrance to the ex-wife as she has to wait for three (3) months from the date of the termination of the marriage to remarry. If she does not, the marriage concluded, will still be valid.

1. Dissolution of the Matrimonial Property

There are two different systems that govern the marital property regime under Turkish law. According to Article 179 of the TCC, “In the dissolution of the matrimonial property regime, provisions regarding the regime which the spouses are up with, shall apply”. Therefore, depending on what the parties agreed to, the arrangement can be based on the legal marital property system or a separate nuptial agreement.

1. Maintaining or Changing the Personal Status Acquired by the Marriage

Article 173 of the TCC provides that an ex-wife maintains the personal status or condition (such as kinship by marriage, citizenship, and surname) she acquired through the marriage. This is also applicable to men. However, this section highlights the importance of the issue of surnames.

The divorced woman cannot keep the surname of her ex-husband and has to return to her maiden name. However, she may request to keep the ex-husband’s surname where: 1) there was some economic benefits such as not losing her customers or her fame, and 2) no harm will be caused to the man. Note that the ex-husband can always object to this decision if he feels that such an action would give offence to him. For example, if the woman has been involved in fraudulent dealings.

In light of the surname variations, the European Court of Human Rights examined the surname of a person within the scope of a right to private life under Article 8 of the European Convention of Human Rights, and forcing a married woman to acquire her husband’s surname would constitute a violation of such as privacy. But there is an argument to suggest that until there is an amendment to the provisions in the TCC, it is an interpretive rule and does not act in contravention of the international treaty.

1. The Termination of the Mutual Rights Arising from Inheritance Law

Divorce causes the termination of the matrimonial union and as such, the status of the ex-spouses being the legal heirs of each other also ends. Consequently, they lose all the rights granted to them through testamentary dispositions that were prepared prior to the divorce, which become void, unless there is contrary intention under Article 181 of the TCC, such as declaration made in writing. In those instances, the transactions will remain valid, even on the condition of a divorce. If there is a blood relationship between the ex-spouses (they could be children of sisters or brothers), the inheritances through blood relatives will continue.

However, situations will arise where divorce proceedings have commenced but there has been no resolution because, say, for example, one of the spouses die during the suit. According to Article 181 of the TCC, if one of the parties of a divorce suit passes during the proceedings, the marriage ends through death, and the rights of inheritance are determined without taking the suit into consideration.

There is an exception to the rule involving the pending suit because there may be an opportunity for the heirs of the deceased spouse to obstruct the acquisition of legal heirship by the other party (alive spouse) provided there is evidence that the one whose actions caused the divorce in the termination of the marriage is the spouse who is alive.

Conclusion

At the end of a marriage, the parties’ needs are altered completely. It is clear that there are a number of consequences resulting from a divorce decision, some of which are controversial areas in Turkish family law, including the subject of a woman’s surname. It can, therefore, be difficult to reconcile some of these practices with the principle of gender equality as stipulated under Turkish laws.