Divorce Due to Abandonment (TCC Art. 164)

1. The Concept of Abandonment and Its Legal Nature

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"Abandonment" is regulated as a special ground for divorce in Article 164 of the Turkish Civil Code No. 4721. Divorce cases based on abandonment are highly technical in terms of both the form and the material conditions, and it is crucial that the process be conducted thoroughly and in compliance with the legislation.

2. Acceptance and Conditions of Abandonment in Divorce Cases

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Turkish Civil Code Article 164/1:

If one of the spouses abandons the other for the purpose of not fulfilling their obligations arising from the marriage union or does not return to the shared residence without a justified reason, the separation has lasted at least six months and this situation continues and the warning made by the judge or notary upon request has not been successful, the abandoned spouse may file a divorce suit. The spouse who forces the other to leave the shared residence or prevents the other from returning to the shared residence without a justified reason is also considered to have abandoned.

At this point, it's crucial to emphasize that a spouse who forces the other spouse to leave the shared residence or prevents them from returning to the shared residence without justifiable cause will also be considered an abandoner. At this point, determining who made the abandonment is also crucial in divorce cases based on abandonment.

According to this provision, in order for abandonment to constitute grounds for divorce, all formal and material conditions must be met together:

• The separation must continue uninterrupted for at least six months,

• A proper warning sent to the abandoning spouse through the court or notary, and this warning has been ineffective,

• The cancellation was not made due to a justified reason,

• The abandoner is at fault.

  
  

3. Deadlines and Notice Requirements to be Complied with in Divorce Cases Based on Abandonment

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As we mentioned above, in our legislation, filing a divorce suit based on abandonment requires sending a notice, either through a court or a notary, requesting the abandoning spouse to return to the shared home. Furthermore, the legislature has set specific timeframes from the date the notice is received by the abandoning spouse.

Turkish Civil Code Article 164/2:

"Upon the request of the spouse entitled to file a lawsuit, the judge or notary shall, without examining the merits, issue a warning to the abandoning spouse, informing him/her that he/she must return to the shared residence within two months and of the consequences of his/her failure to do so. This warning shall be made through public notice if necessary. However, the fourth month of the specified period for filing a divorce case shall not be exceeded. "A warning cannot be requested and a lawsuit cannot be filed until two months have passed after the warning.”

What should be understood from this regulation, in summary, is that after the fourth month of the 6-month uninterrupted separation mentioned above, a warning must be sent to the other party, the notice must state that the other party must return to the shared residence within two months , and if the other party does not return to the shared residence within two months after this warning, a lawsuit can be filed.

Additionally, it should be noted that the warning sent to the other party must be sincere . While the criteria for determining whether a warning is sincere vary depending on the specific case before the Supreme Court, these criteria can be briefly summarized as follows:

• The shared residence must meet the minimum requirements for the continuation of the marital union – basic household goods, meeting basic needs, etc.

• Sending an equitable travel allowance to the other party so that they can return to the shared residence if necessary,

• If necessary, the notice must state where the key to the shared residence is and how to return to the shared residence .

  
  

4. Evaluation

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Divorce cases based on abandonment are technical in nature due to the strict formal requirements. Failure to calculate the timeframes correctly, failure to properly serve notice, or ignoring the justifiable reason can result in the case being dismissed. Therefore, in practice, cases filed without legal assistance are often dismissed on procedural grounds without even examining the merits of the divorce case.

5. Conclusion

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The institution of divorce based on abandonment, regulated under Article 164 of the Turkish Civil Code, has a complex structure that considers both the spouses' fault status and specific formal conditions. Supreme Court precedents provide well-established and detailed interpretations on this matter, guiding practice.

Therefore, in divorce cases based on abandonment, it is of great importance that the deadlines are followed meticulously, the notice is given in accordance with the procedure and the characteristics of the concrete case are determined in accordance with the law.