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 offenses against life, battery and humiliating behavior, humiliating crime and dishonorable 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 completely end the marriage bond.
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 be able to judicial separation. While using the discretionary power, the judge takes into account the case at issue, after the necessary examinations, decides whether the joint-life between the spouses can be re-established.
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 discretion of the judge 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 about 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; must decide to divorce. Because; certainly, joint-life cannot be established again in cases of uncontested divorce and de facto separation.
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 decision of separation cannot be ruled for less than one year and more than three years.
Obligations of the Parties During the Judicial Separation
During the separation period, the marriage does not end, and the obligations of the parties regarding the marriage community continue. The separation decision just provides a break from the joint life. In this context, the spouses' obligations such as loyalty and care are not suspended.
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 for 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 who will be 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." The judge, after listening to the mother and father, the guardian if the child is under guardianship, and the guardianship authority, takes into account 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 the health, education, and accommodation expenses of children 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 personal relationship of the child 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 decision of the judge. With the abolition of the matrimonial property regime contract, the legal property regime, which is the regime of participation in accrued gains, is applied.
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 reestablished, 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. In the divorce case, the events that are the subject of the first case and that took place during the separation period are taken into consideration. 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.
The competent court in separation cases is the Domestic Relations Court and the court where one of the parties has lived or where they have lived together in the last six months before the case is authorized.
Türk Özel Hukuku Cilt 3, Aile Hukuku, Prof. Dr. Mustafa DURAL, Prof. Dr. Tufan ÖĞÜZ, Prof. Dr. Mustafa Alper GÜMÜŞ, Filiz Kitabevi, İstanbul, 2019
Aile Hukukunda Ayrılık, Türk Hukukunda Ayrılık Hükmü Şartları ve Sonuçları, Dr. Ali ÖZTÜRK, Seçkin Yayınları, 2015
Hukuken Ayrılık ve Boşanma, Av. Eda Berat DENİZ, www.lexhukuk.com
Ayrılık Davası ve Şartları, Av. Halil PAŞAYİĞİT, 2019, www.hukukihaber.net