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Judicial Separation

BUSRA NUR YIGIT

What is Judicial Separation?

A judicial separation is a legally recognized split approved by the court. It’s more than simply a couple agreeing to live apart, and it’s more than just legitimizing the split. It allows the court to issue financial and property distribution decisions comparable to those imposed in a divorce case without ending the marriage.

Within the scope of the Turkish Civil Code No. 4721, the grounds for divorce are divided into two as general and special. While adultery, wilful offences against life, battery and humiliating behaviour, humiliating crime and dishonourable life, desertion, and mental illness are special grounds for divorce; breakdown of marriage, uncontested divorce, failure to establish a joint life, and de facto separation are the general grounds for divorce.

Under the numerus clausus, a divorce action can not be filed for any grounds other than the grounds listed in the Law. If one or more of the reasons for divorce occur, judicial separation can be made instead of divorce if it is possible that unity of family can start again. The judicial separation provides a break from the joint-life for some time; however, it does not end the marriage bond completely.

What Are The Conditions For a Judicial Separation?

For judicial separation, at least one of the grounds for divorce listed in the Law must occur. As stated in the decision of the Court of Cassation’s 2nd Civil Chamber dated 18.02.2013, with the decision numbered 2013/3849 and the basis number 2012/3023, “If the ground for divorce has not been realized, the request for separation should also be rejected.

If there is a reason for divorce, there must be a possibility that the joint-life between the spouses will be re-established to judicial separation. While using the discretionary power, the judge considers the case at issue and decides whether the joint-life between the spouses can be re-established after the necessary examinations.

What is Separation Action?

According to the 167th article of the Civil Code, “The spouse who has the right to file for divorce may ask for divorce or separation.” At the request of one of the spouses, a separation action can be filed, or a separation decision can be made at the judge’s discretion if there is a possibility that the joint-life can be re-established in the divorce action.

If one of the spouses does not want the marriage community to end but wants the joint-life to be suspended for a while, they can file a separation case. If the case is just separation, a divorce cannot be decided.

While the divorce proceedings are continuing, the judge who sees the possibility that the joint-life can be re-established can also make a separation decision on its initiative. The judge does not have the power to make a separation decision if the conditions for the uncontested divorce and de facto separation are met; they must decide to divorce. Because; certainly, joint-life cannot be established again in cases of uncontested divorce and de facto separation.

What is The Duration of The Judicial Separation?

The duration of the judicial separation is regulated in article 171 of the Civil Code and is from one year to three years. The separation period is specified in the decision of separation, and the period starts from the date the decision is finalized. A separation decision cannot be ruled for less than one year and more than three years.

What Are The Obligations of The Parties During the Judicial Separation?

The marriage does not end during the separation period, and the parties’ obligations regarding the marriage community continue. The separation decision provides a break from the joint life. The spouses’ obligations, such as loyalty and care, are not suspended in this text.

If one of the spouses has another sexual intercourse, it is considered a violation of the duty of loyalty and is covered by adultery. In the doctrine, adultery is defined as the interdependence of spouses, and the obligation of loyalty continues as long as the marriage community continues. During the separation period, spouses must remain loyal to each other.

Sexual relations with someone other than the spouse damage pedigree, social order, and general morality. Since it seems possible to re-establish the marriage community at the end of the separation period, the obligation of loyalty continues.

The desertion provisions cannot be applied to the spouse who is decided to leave the communal residence because the judicial separation decision is a justified reason for leaving the communal residence.

Children born during the separation period are deemed to have been born in a marriage since the marriage community continues between the spouses.

Under the Civil Code Art.182/1, “The court shall regulate the rights of the parents and their relations with the child, after hearing the parents whenever possible, and taking the opinion of the guardian and the guardianship authority if the child is under guardianship.” After listening to the mother and father, the guardian if the child is under guardianship, and the guardianship authority, the judge considers the interests of the joint children and decides to which spouse the custody will be given during the period of separation. The primary consideration is the best interests of the child.

Child maintenance may be awarded to the other spouse to contribute to the care of the joint children. The spouse who pays child maintenance contributes to children’s health, education, and accommodation expenses in proportion to their financial power.

In addition, the judge regulates the child’s relationships with the parties, taking into account the child’s interests and personal development. If deemed necessary, the judge may prohibit the child’s relationship and the other spouse or decide to put the child under guardianship.

Per the 2nd paragraph of Article 197 of the Civil Code, “If the interruption of living together is based on a just cause, the judge takes measures regarding the monetary contribution of one of the spouses to the other, benefiting from the house and household goods and the management of the property of the spouses.” In this context, the judge may decide to temporary alimony for one of the spouses.

With the temporary alimony, it is aimed not to deteriorate the living standards of the spouse who will fall into economic difficulties in the process. In addition, the matrimonial property regime contract between the spouses can also be abolished by the judge’s decision. With the abolition of the matrimonial property regime contract, the legal property regime, which is the regime of participation in accrued gains, is applied.

When is The Termination of The Judicial Separation?

Separation ends with the expiration of the separation period. In the end, it is important whether the joint-life can be re-established or not. If the joint-life can be re-established, the marriage community will continue, and no additional divorce proceedings will be needed.

If joint life cannot be established again after the end of the period, spouses will be able to file a divorce suit within the scope of the Civil Code Art.172. The events that are the subject of the first case and during the separation period are considered in the divorce case. If a new event or reason occurs during the separation period, divorce action can be filed based on this reason.

In addition, when the spouses re-establish their joint life before the separation period ends, the separation is also terminated.

Which is The Competent Court in Judicial Separation?

The competent court in separation cases is the Domestic Relations Court, where one of the parties has lived or lived together in the last six months before the case is authorized.


Here is another article that might interest you for further reading: Divorce Proceedings in Turkey For Foreigners.


Bibliography

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