Divorce Attorney

A divorce attorney is an expert legal professional who, in accordance with the Turkish Civil Code, protects the rights of the parties during the process of consensual or contested termination of marriage, and ensures the administration of justice in legal matters such as matrimonial property regimes, maintenance, child custody, and damages.

The Turkish Civil Code bifurcates divorce proceedings into consensual (uncontested) and contested divorces. This distinction in divorce actions yields different outcomes in terms of both procedural and substantive law. While a consensual divorce represents a procedure where the parties' intentions converge and the dispute is resolved swiftly, contested divorce cases necessitate a longer and more complex litigation process where the judge examines the evidence before rendering a decision. The import of this distinction pertains not only to the procedural technique but also to the degree of protection afforded to the parties' rights.

However, in practice, parties often fail to adequately grasp the nature of the process or to consider which type of action would be in their best interest. Therefore, prior to deciding which type of divorce action to initiate, it is essential to evaluate the matter with all its legal intricacies. This evaluation should be conducted particularly within the framework of Articles 161 to 166 of the Turkish Civil Code, and analyzed based on the evidentiary structure, time limits, and the concept of the burden of proof.

The choice between a consensual or contested action is not merely a procedural preference but also a legal disposition of significant importance due to its personal, economic, and psychological ramifications. In this regard, it is imperative for parties to avail themselves of the services of an expert legal professional during the decision-making process to prevent potential future loss of rights.

The Turkish Civil Code regulates engagement and marriage, as well as the circumstances leading to the termination of marriage. Divorce is only possible by a court order. As stated above, divorce actions are of two types: consensual divorce and contested divorce actions.

This regulation serves a public policy objective aimed at protecting the institution of the family. The legislator does not regard the marital union as an ordinary contract; rather, it views it as a cornerstone of the social structure and subjects divorce to strict formal requirements. Consequently, the requirement for divorce to be effected by a court order is considered a safeguard against arbitrary divorces.

For instance, if parties could terminate a marriage by a simple declaration, the potentially devastating consequences that could repeatedly arise within the family structure could not be overlooked. For this reason, the Turkish legal system has placed divorce under judicial scrutiny, requiring the judge to examine not only the formal but also the substantive elements.

The legal nature of this institution is to ensure a balance between individual freedom of will and public order. Therefore, the fact that divorce is a personal right does not render it solely a private law relationship; rather, it is enshrined in legislation as a regulation that also encompasses public interest.

Consensual divorce actions are initiated by filing an application with the Court based on a settlement agreement. Although it may appear to be a straightforward path, it is beneficial to pursue the process with legal counsel to ensure the maximum protection of individuals' rights.

In such cases, the judge personally ascertains whether the parties' intentions were formed freely and consciously. The judge is obligated to determine that the parties' intent to divorce did not arise from duress or mistake. At this juncture, the content of the settlement agreement must meticulously regulate matters such as maintenance, division of marital assets, child custody, and personal ornaments, and its legal consequences must be explicitly stated.

Indeed, a minor error in a consensual divorce settlement agreement can lead to significant loss of rights in the future. Particularly, inadequate provisions regarding the matrimonial property regime or parental access to children can cause serious issues in the enforcement of the judgment. Therefore, a settlement agreement prepared without legal assistance is generally unlikely to be comprehensive and legally compliant.

Consequently, while the consensual divorce process offers a practical solution, the enforceability of a document that has not undergone legal scrutiny may be debatable. In this regard, obtaining professional assistance to protect the parties' vested rights and prevent potential disputes is self-evident.

In the event that an agreement cannot be reached between the parties due to a divergence of will, a contested divorce action is filed. A contested divorce action may be filed on grounds such as adultery, irretrievable breakdown of the marital union, as well as abandonment, attempted murder, cruel and humiliating treatment, committing a crime and leading a dishonorable life, or mental illness. In such cases, pecuniary and non-pecuniary damages are awarded against the at-fault party.

The nature of a contested divorce action requires that the parties' mutual claims and defenses be supported by evidence. The Court meticulously evaluates witness testimonies, documents, and social investigation reports submitted by the parties. Here, it is essential that all evidence be obtained lawfully; otherwise, the evidence will be subject to rejection.

Claims for pecuniary and non-pecuniary damages are also an important part of contested cases. When determining these damages, the judge considers the parties' degree of fault, their social and economic circumstances, and the psychological consequences of the divorce. For instance, non-pecuniary damages awarded as a result of an action filed due to a spouse's humiliating conduct are not merely a monetary payment but also a reparation for the violated personal rights.

Contested divorce actions have not only a legal but also a sociological dimension. For this reason, reasoned court decisions are also important for reinforcing society's sense of justice.

In divorce actions, the Court evaluates not only the grounds for divorce but also the issue of who will have custody of the minor children. Upon obtaining a pedagogical opinion, temporary custody is granted to one of the parents, and the visitation schedule for the other parent is also regulated.

The concept of child custody is based on the principle of the paramountcy of the child's best interests. Pursuant to Article 182 of the Turkish Civil Code, the court renders its decisions considering the child's physical, emotional, and moral development. Within this framework, the judge meticulously examines pedagogical reports, school records, and observations by social service experts.

Consequently, the right to custody is an extension of the child's benefit, not the parents'. Superior financial means of one parent alone are not sufficient; the child's emotional stability and psychological security are particularly taken into account.

The concept of the child's best interests is not an abstract notion; it must be evaluated based on concrete data in each case. At this point, the court bases its decisions not only on legal norms but also on data from social sciences.

In divorce actions, interim maintenance may be requested, and upon judgment, spousal support (alimony) and child support may be awarded. For this purpose, the Court investigates the parties' social and economic status through law enforcement and awards maintenance accordingly.

Interim maintenance is a temporary arrangement aimed at redressing economic imbalance during the pendency of the case. The judge examines the parties' income and expenditure and determines an equitable amount. Spousal support (alimony) for indigence, on the other hand, is a continuous payment awarded after the divorce judgment becomes final.

Child support refers to participation in the child's care and education expenses and arises from public policy. For this reason, it cannot be entirely waived even by agreement of the parties. For instance, if the child's school expenses increase, it is possible to increase the amount of support.

Each of these types of maintenance is built upon the principle of justice in family law. Consequently, when determining maintenance amounts, both the obligor's ability to pay and the obligee's standard of living are considered.

In divorce actions, a claim for personal ornaments (jewelry) may also be made if the ornaments have been liquidated. Furthermore, an action for personal ornaments may also be filed as a separate lawsuit.

Personal ornaments are legally considered personal property belonging to the wife. If these assets have been liquidated even during the marriage without the spouse's consent, their return or monetary value may be claimed. The judge renders a decision after meticulously examining evidence such as witness testimonies and wedding videos.

Claims related to personal ornaments are frequently a subject of debate in practice. Particularly, issues arise regarding the burden of proof, and in some cases, the monetary value of the ornaments is awarded instead of their return. Therefore, the importance of documents and evidence in the process of determining claims for personal ornaments is self-evident.

In conclusion, while the right to personal ornaments is a personal right, it is also closely linked to the matrimonial property regime. In this regard, the issue of whether claims for personal ornaments should be sought separately or jointly must be considered within the entirety of the case.

After the divorce judgment becomes final, the right to file an action for the matrimonial property regime is acquired. Throughout all these processes, there is a legal benefit in pursuing the case with an expert divorce lawyer to ensure the maximum protection of an individual's rights.

An action concerning the matrimonial property regime addresses the division of assets acquired during the marital union. The regime of participation in acquired property is fundamental, and it is accepted that spouses have equal rights over assets acquired during the marriage. In this division, the contribution rate, land registry records, loan payments, and the nature of personal property are meticulously examined.

Consequently, financial documents and expert reports hold significant value in these cases. Particularly, the issue of whether acquired property has been converted into personal property is a point that must be considered.

In conclusion, the divorce process is not merely an emotional separation but also a legal, economic, and social restructuring. Therefore, to protect the parties' rights and ensure the administration of justice, it is self-evident that the case should be handled by a specialized attorney.