TERMINATION OF THE MARITAL UNION AND DIVORCE PROCEEDINGS
Legal Reality and Institutional Liquidation Amidst Emotional Devastation The marital union, in addition to being the most fundamental social building block of society, is a profound contract on a legal level upon which mutual rights and obligations (fidelity, solidarity, economic partnership) are built. The process of the termination of this union (divorce) is not merely an emotional trauma for individuals; it is also the legal liquidation of a deeply intertwined life spanning years, joint assets, and social status. The intense anger, disappointment, and psychological damage experienced by the parties in contested divorce proceedings often carry the risk of turning courtrooms into arenas for “settling scores”. However, the fundamental function of the law is not to provide emotional satisfaction to the parties, but to identify the material and legal facts that led to the irretrievable breakdown of the marital union on a rational basis, and to conclude the process with a fair liquidation.
“Irretrievable Breakdown of the Marital Union” and the Legal Boundaries of Fault Determination In cases of severe incompatibility filed under the Turkish Civil Code (TCC Art. 166), the sole element determining the fate of the case is the determination of “fault”. Who made the marriage unbearable and through which action (infidelity, physical/psychological violence, economic pressure, failure to provide an independent dwelling, etc.) must be proven not by mere abstract allegations, but by lawful evidence. The biggest legal crisis encountered at this point is the tendency of the parties to create unlawful evidence (secret audio/video recording, using spyware) for the sake of proving fault. As in Criminal Procedure Law, the “fruit of the poisonous tree” principle is also valid in Family Law; no findings obtained by violating the privacy of private life can be taken as a basis for a divorce decree or fault determination.
Prevention of the Loss of Rights and Strategic Defense in Contested Proceedings In contested divorce cases that can last for years and consume all the life energy of the individual, it is essential that the process is managed entirely within the framework of legal norms. In these disputes, the following are taken as a basis:
- Allocation of the joint dwelling, establishment of a family home annotation, and the immediate obtainment of restraining orders under Law No. 6284 against the possibility of violence/threats.
- Requesting temporary alimony (and subsequently spousal support/poverty alimony) in accordance with economic realities (TURKSTAT data, inflation, social inquiry reports) to protect the minimum living standards of the spouse and, if any, the children during the litigation period.
- Refuting abstract and fictional witness statements with objective evidence such as HTS (Call Detail) records, hotel/travel documents, bank transactions, and socio-economic status investigations. The fundamental legal approach here is to prevent the case from turning into a war of attrition and to secure the legal rights and dignity of the client in the fastest and most rational way.
CUSTODY LAW AND THE PROTECTION OF THE PRINCIPLE OF THE BEST INTERESTS OF THE CHILD
A Child is Not an “Object”: The Fundamental Paradigm in Custody Cases The most sensitive area of family law, and where courts possess the widest discretionary power, is the matter of to whom the custody of joint children will be entrusted. Unfortunately, the severe hostility experienced by the parties during divorce processes often causes children to be used as a “weapon”, a “tool for revenge”, or a “bargaining chip”. However, the unshakeable rule of modern law and international conventions (UN Convention on the Rights of the Child) is this: Custody is not an absolute property right (reward) granted to the mother or father; it is a heavy obligation established entirely to ensure the physical, mental, and pedagogical development of the child. Before the judicial authorities, the debate must not be about who is more right or who is wealthier; the sole criterion that must be discussed is the principle of the “best interests of the child”.
Expert Pedagogue Reports, Age of Discretion, and De Facto Alienation The most important basis for the judge’s decision in custody cases are the Social Inquiry Reports (SIR) prepared by judicial support experts (pedagogues, psychologists, and social workers). The parents’ lifestyle, housing conditions, moral status, and the quality of time they can dedicate to the child are put through a scientific filter via these reports. Furthermore, in accordance with the jurisprudence of the Court of Cassation (Yargıtay), it is a legal obligation to take the statement of a child who is at the “age of discretion” (generally 8 years and older) in the presence of the court or an expert, and to hear who they wish to live with. A parent’s abduction of the child from the other parent (de facto prevention of contact) purely out of hostility and creating a “parental alienation syndrome” in the child is considered the most severe fault ground directly for the modification (or denial) of custody.
Establishment of Personal Relationships and Supervision of the Abuse of Custody The healthy development of the child depends on establishing an uninterrupted and high-quality bond with the non-custodial parent as well. The legal practice carried out in this process includes:
- Obtaining court decisions for the “establishment of a personal relationship” (with or without overnight stays) that is most suitable for the child’s age and needs, covering weekends, religious/national holidays, and summer vacations.
- Promptly filing Enforcement Criminal complaints (opposition to child delivery) and Modification of Custody lawsuits in the event that the custodial parent necessitates the delivery of the child via enforcement channels or arbitrarily prevents contact with the other parent.
- Determining “child support” (iştirak nafakası) in accordance with economic conditions and equity for the child’s care, education, and health expenses, and adapting (increasing) this support under changing conditions. The sole party defended in custody disputes is not the mother or the father, but the child themselves, who is caught in the middle of all these conflicts.
CLAIMS FOR PECUNIARY AND NON-PECUNIARY DAMAGES ARISING FROM DIVORCE
A Legal Restoration, Not a Tool for Revenge or Enrichment Claims for pecuniary and non-pecuniary damages are among the most frequently misunderstood concepts in the divorce process. The institution of compensation was not established for the parties to economically destroy each other, to “make someone pay a price” (revenge), or to provide unjust (causeless) enrichment. What the law aims for with compensation is the re-establishment of the economic balance disrupted as a result of the wrongful acts of the at-fault spouse, and the legal repair (restoration), to some extent, of the devastation caused by the violation of personal rights (honor, dignity, psychological integrity). According to the Turkish Civil Code (TCC Article 174), the most fundamental condition for awarding compensation is that the party requesting compensation must be “less at fault” or “faultless” compared to the other party, and there must be a definitive causal link (causality) between the damage and the action. Even in cases of equal fault, claims for compensation are rejected.
Pecuniary Damages: Protection of Expected Economic Interests The party whose existing or expected interests are damaged due to divorce has the right to demand appropriate pecuniary damages from the at-fault spouse. Professional sacrifices made with the belief that the marital union would continue (e.g., leaving professional life at the spouse’s request), the sudden loss of financial security provided by joint life, or the diminishment of assets due to the at-fault behaviors of the spouse (gambling, extravagance, infidelity) constitute the subject of pecuniary damages. When calculating this compensation, courts determine a fair amount by taking into account highly concrete socio-economic parameters such as the economic and social statuses of the parties, the duration of the marriage, age, and the probability of remarriage (or finding employment).
Non-Pecuniary Damages: Sanction for Severe Violations of Personal Rights Non-pecuniary damages, rather than an economic expectation, aim to alleviate the pain and suffering of the party whose “personal rights have been attacked” due to the events that caused the divorce. Not every ground for divorce gives rise to non-pecuniary damages; ordinary incompatibilities (e.g., differences of opinion) cannot be evaluated within this scope. However, severe fault exists in situations such as:
- The spouse inflicting physical or severe psychological violence.
- Damaging the spouse’s honor by making the act of infidelity (adultery) or cheating public within society.
- Revealing family secrets or attacking the spouse’s dignity with unfounded accusations (slander).
In the legal process carried out, the nature of the opposing party’s tortious act, the severity of the action, and the psychological devastation it created are proven by judicial (law enforcement, hospital reports) and personal (witness) evidence, ensuring that the highest non-pecuniary satisfaction (compensation) permitted by law is transformed into a court decree. The intervention of the law here is the restitution of trampled human dignity through the judicial power of the state.
Legal Notice And Disclaimer
All articles, analyses, and legal evaluations contained on this website are provided for general informational purposes only and do not, under any circumstances, constitute a formal legal opinion, legal advice, or consultancy intended to be applied to a specific dispute or legal situation.
Due to the dynamic nature of legislation and the unique material characteristics of each concrete case, our firm accepts no liability for any loss of rights that may arise from actions taken or decisions made in reliance upon these texts.
You may contact us directly to have your legal problems resolved, to obtain a professional legal opinion based on your specific case file, or to schedule an appointment for verbal consultancy services.