ALFA Law and Consultancy provides legal services in and around Antalya to local and international clients for all branches of civil law.
As known, civil law is divided into five main branches: personal law, family law, inheritance law, property law and law of obligations.
- Personal Law: Personal law, which includes concepts such as the beginning and end of personality, protection of personality, registration of personal situations, place of residence, examines associations and foundations from legal entities as well as real persons.
Natural persons have rights that they have acquired within the legal order before their birth. Starting from this moment until the death of the real person, the person needs to be protected and to seek rights before the judicial authorities regarding the rights that the real person has acquired depending on various possibilities. Our lawyers in Antalya provide legal services for every personal law issue.
Some examples are; transactions such as changing the name or surname, material and moral compensation claims related to the protection of personal rights, revocation of citizenship, legal protection against revocation, naturalization, immigration and similar issues arising from persons’ law. The need for a lawyer is essential in such requests and lawsuits.
Similarly, there is a need to protect the rights of legal entities against regulations regarding legal entities, associations and even foundations. In such case, you can count on our experienced lawyers and our legal services in Antalya.
- Family Law: As the name suggests, it examines the concept of family and, in this context, issues such as engagement, marriage, divorce, custody and lineage.
- Inheritance Law: It is a branch of civil law that regulates the status of an individual’s property, receivables and debts after his death.
- Property Law: It regulates the ties that the person establishes with both movable and immovable goods. Issues such as possession, land registry, real right, property, pledge are examined within this scope.
- Law of Obligations: It is the branch of law in which debt and receivable relations between individuals are regulated.
Antalya Lawyer Ceren Topcu İncetaban and her Antalya Law Firm can support you with all the disputes that may arise around the above-mentioned branches.
Do not hesitate to contact us for any further questions regarding above-mentioned issues. The ALFA TEAM, with its experienced lawyers in Antalya provide legal services in many languages to its local and international clients.
HOW TO FILE A DIVORCE CASE?
WHAT ARE THE CONSEQUENCES?
Divorce cases are an extremely important type of disputes due to their legal nature and because of the fact that they are directly related to the private lives of individuals.
For this reason, working with a lawyer who is expert in divorce law is very important to prevent loss of rights.
● What is the Legal Basis for Divorce Cases?
Family law has been regulated in the second book of the Turkish Civil Code numbered 4721. Marriage is regulated in the first part of the Family Law. The second part includes the divorce. According to these regulations, spouses may request the court to terminate the marriage union with divorce or, if they wish, by requesting a separation decision.
● Where to File a Divorce Case?
The legislator has given great importance to this issue, as the result of divorce cases will cause the end of the family unity. For this reason, it is very important to determine the place where the case will be filed and the competent courts. Otherwise, the case may be rejected due to the duty and authority.
Cases and legal proceedings arising from Family Law are heard in Family Courts. In places where Family Courts cannot be established, the Civil Courts of First Instance are in charge as Family Courts.
Since the rules of duty are related to public order, the parties cannot change the assigned court with a contract between them in divorce cases. If the court where the divorce case is filed not in charge, it will decide to reject the case on procedural grounds, even if there is no objection to duty.
Specific to the divorce case, the rule of authority is regulated in Article 168 of the Turkish Civil Code. According to the article, the competent court in cases of divorce or separation is the place of residence of one of the spouses or the court of the place where they have lived together for the last six months before the lawsuit. Changing the place of residence after the lawsuit has been filed does not render the court competent at the time of the lawsuit ineffective.
There is no definite authority rule in determining the competent court in divorce cases. Authority is not related to public order. For this reason, the court that hears the divorce case cannot automatically give a decision of lack of jurisdiction. In case of an objection to authorization as the first objection, the competent court is investigated.
● What are the Types of Divorce Cases?
The legal nature of the divorce case changes depending on whether the husband and wife come to an agreement regarding the new legal consequences that will arise due to the divorce. If the husband and wife have come to an agreement for all kinds of legal consequences that will arise from the divorce, there will be an uncontested divorce case. On the other hand, if the parties cannot reach an agreement on the consequences that will arise due to the termination of the marriage, there will be a contested divorce case.
✧ Uncontested Divorce Case
For an uncontested divorce case, the parties need to agree on all legal consequences of the divorce. The parties should freely reach a joint decision on issues such as alimony, custody, and property division.
At the end, an uncontested divorce protocol with the decisions made by the parties shall be prepared. The protocol needs to be signed by both parties. Subsequently, an uncontested divorce case shall be opened and the case will be concluded in the session in which the parties are present.
However, some conditions are stipulated in the law in order to open an uncontested divorce case. These conditions are as follows:
- The marriage must have lasted at least one year
- The spouses apply to the court together or one spouse accepts the other’s case
- The judge’s conviction that their will is freely expressed by listening to the parties personally
- The parties agree on a regulation regarding the financial consequences of the divorce and the situation of the children and the judge approves the regulation
- It is in the form of filing a lawsuit by preparing a protocol in line with the decisions taken between the spouses or submitting the protocol to the court until the first hearing
If the parties cannot agree on the legal consequences of the divorce case such as alimony, custody, property division, a contested divorce case needs to be filed. In case of existence of grounds for divorce as a result of the judgment the court decides on the divorce by evaluating the custody of the minor, alimony and other requests. In a contested divorce case, all evidence submitted to the court that has not been obtained unlawfully, such as witnesses, photographs, camera recordings, messages, social media posts, passport, entry and exit records, bank and credit card account statements, will be examined.
Contact our Antalya Law Firm to select the appropriate type of divorce case and complete the necessary procedures.
● What are the Divorce Grounds?
In a contested divorce case, the party who filed the lawsuit is obliged to prove the reasons for the divorce that he put forward. The reasons for divorce are arranged in two separate sections in the Turkish Civil Code as special and general grounds.
Turkish Civil Code article 161 and the following articles set out the special grounds. These grounds are; adultery, attempt life, very bad or dishonourable behaviour, committing crimes and leading a dishonourable life, abandonment, mental illness and breakdown of marriage. The plaintiff is obliged to prove the specific ground she put forward in the divorce case. As the general grounds in Article 166 of the TCC, it is sought that the marriage union has been disrupted and that it cannot be expected from them to maintain a common life.
As a result of the trial, the court can decide to divorce, or as a result of the examination made by the judge, a separation decision can be made. The separation decision can only be made if there is a possibility of re-establishing the common life.
In the event that the lawsuit filed with any of the grounds for divorce is rejected and three years have passed from the date of finalization of this decision, if the common life cannot be re-established for any reason, the marriage union is deemed to have been broken down and the divorce will be decided upon the request of one of the spouses.
We help you to choose the most suitable divorce grounds for your divorce case and prevent your loss of rights.
Do not hesitate to contact Antalya Lawyer Ceren Topcu İncetaban for comprehensive and understandable legal advice.
● Special Grounds for Divorce
Adultery: Having sexual intercourse with another person of one spouse in the union of marriage. The fact that the spouse has voluntarily lived the sexual relationship he has experienced means that he is culpable. In a divorce case based on adultery, it is required that the adulteress be at fault. Even if the person with whom the spouse has sexual intercourse is of the same sex, adultery is considered to have taken place.
If it is determined in the divorce case that the spouse has committed the act of adultery, the judge should decide on the divorce. The right to sue expires 6 months from the date on which the act of adultery is learned, and in any case 5 years from the date of committing the act. In this case, a lawsuit cannot be filed based on adultery. If the act of adultery is forgiven, the spouse does not have the right to file a lawsuit.
In accordance with the Supreme Court Judgment Unification Decision (Date E. 2017/5, K. 2018/7, 06.07.2018), the other spouse does not have the right to demand non-pecuniary damages from the person who has a relationship with the spouse who committed the act of adultery while the marriage union continues.
Attempt life, very bad or dishonourable behaviour: Attempt life is the act of one spouse showing the intention to kill the other. For example, attempting to kill, encouraging or coercing suicide. Making someone else do these acts by instigating them is also included in the scope of attempting life.
Very bad behaviour: Actions that cause pain and suffering, impair or endanger health, consciously and deliberately shown by one partner to another.
Disgraceful Behaviour: Behaviours that harm the moral existence of one spouse to the other. For example, humiliating, degrading, using abusive words.
Right to sue in the case of very bad or dishonourable acts, attempt life ceases after 6 months, in any case 5 years, as in adultery.
Committing a crime and leading a dishonourable life: If one of the spouses commits a humiliating crime or leads a dishonourable life and cannot be expected to live with the other spouse for these reasons, this spouse can always file for divorce. In order for the spouse to withstand this, the person who commits a crime and leads a dishonest life must commit the crime knowingly and willingly. These crimes fall into all kinds of shameful crimes. For example, prostitution, drug use. The judge decides to divorce by using the right of discretion according to the situation of the case.
Abandonment: If one of the spouses leaves the other in order not to fulfil their obligations arising from the marriage union or does not return to the common residence without a justified reason, if the separation lasted at least six months and it continues, the abandoned spouse can file a divorce case based on this reason. Examples of justifiable reasons include treatment, being a soldier, education, being in prison. In case of a just cause, abandonment also occurs if the spouse does not return home even though the just cause has ended.
For abandonment, there must be an end to the common life with the aim of not fulfilling the obligations arising from the marriage union. The spouse who does not allow the other spouse to come to the common residence is deemed to have committed the act of abandonment.
For the acceptance of the divorce case based on the act of abandonment, six months must have passed and it must have been ongoing. A warning needs to be issued against the spouse who has been living separately from the common residence for four months to return to the common residence. Despite the warning, when the spouse does not return to the common residence for two months, the divorce case based on the act of abandonment will be decided.
Mental Illness: One of the spouses must have a mental illness determined by the official health institution that it is not possible to recover when the divorce case is filed. The common life must have become unbearable for the other spouse due to mental illness.
● General Reasons for Divorce
If the marital union is broken to such an extent that it is not expected of them to continue a common life, each of the spouses can file for divorce. In order for the marriage union to be broken, there must be severe incompatibility and disagreement between the spouses. Violent disagreement does not mean temporary arguments that can be seen between every couple.
Incompatibility and disagreement should be such that it is not possible for them to maintain a common life between spouses. The claiming spouse must prove this situation. The judge evaluates whether there is a violent conflict by examining the file, listening to the witnesses and looking at the way the incident occurred. There is no period of disqualification for this reason for divorce. There should be no desire to continue the marital union between the spouses.
If the fault of the plaintiff is more serious, the defendant has the right to object to the filed lawsuit. If this objection is in the nature of abuse of right and there is no benefit worthy of protection for the defendant and the children in the continuation of the marriage union, the divorce is decided. The objections of those who flee from living together, do not fulfil their union duties, insult, do not take their spouse’s parents’ home or say that they do not love their spouse all the time are counted as examples of abuse of right.
If the marriage has lasted at least one year, if the parties have agreed to divorce, or if one spouse accepts the other’s case, the foundation of the marriage union is deemed to have been broken.
In case the couples who decide to divorce have one or more children, it is necessary to determine which side the custody of the minor will be given, taking into account the living conditions of the child. This is the most important issue of contention between spouses at the stage of divorce. According to the Civil Code, the court must consider the development and interests of the child when determining which side will have custody of the child.
In case of conflict between the parents regarding the custody of the child, the court decides on whom the custody will be given according to the development and interests of the child. While doing this examination, if the child has reached the age of comprehension, the child will be heard to in the company of a pedagogue.
Since custody is related to public order, the court also conducts research ex officio apart from the evidence presented. A report prepared by specialists such as psychologists, pedagogues and social workers will be received. By evaluating all the evidence, the court decides which spouse will have the custody of the child.
Before the divorce case, in the pending case or after the finalized divorce case, the court may decide to pay a certain amount of fee to the other party due to the obligation to participate in the expenses of the party and the child who is or will be in financial distress. This fee is called alimony. There are different types of alimony and they are subject to separate conditions.
Precautionary Alimony: It is the alimony that can be taken while the divorce case is continuing. While the case is pending, alimony is paid for the spouse to survive. It ends when the case is concluded.
Affiliate Alimony: It is the child support paid by the spouse who does not have custody after the divorce case is finalized, in order to cover the expenses of the child. The court determines the amount of child support by evaluating the needs of the child, the income level of the parents and, if any, the income of the child.
Welfare Alimony: It is the alimony awarded by the other spouse to the spouse who will become poor after the divorce and have no or less faults. This alimony is indefinite. The court decides by evaluating as a whole whether the person who will fall into poverty has a professional and working life, the salary he receives if he is working, and whether he has any income.
Aid Alimony: It has been accepted by our legal system that people with a certain blood relation should help their descendants and ancestors who will fall into poverty when they do not help, and it is the type of alimony that can be demanded by the person who falls into poverty when no help is provided.
● Material and Moral Compensation in Divorce
In divorce cases, the faultier party may have to pay compensation to the less faulty or faultless party. Financial compensation is the price paid for the spouse who will establish a new life due to divorce, to meet the expenses he/she needs.
Non-pecuniary damages, on the other hand, is the price paid to relieve the pain, suffering and grief that the spouse has experienced due to the divorce or the events caused by the divorce.
The parties who want to divorce should first know the legal consequences that will arise as a result of the divorce and act with foresight. At this point, Antalya Lawyer Ceren Topcu İncetaban and her Antalya Law Firm, with experts in their fields, explain all the legal consequences to clients and guide the clients in the most accurate way.
Considering that the divorce case is extremely important due to its legal nature and that it is a case that will completely change the life of the person, it would be correct to take every step to be taken with a professional attorney. At this point, it is very important to know in advance all kinds of legal consequences that may arise due to divorce and to manage the divorce process properly.
Feel free to contact our Antalya Lawyers who are experts in divorce cases to prevent loss of rights.