Boşanma Davasında Dikkat Edilmesi Gereken Hayati Konular: Hukuki Süreci Yönetme Rehberi

While marriage is one of life's most significant decisions, sometimes the dissolution of this union becomes inevitable. The divorce process is not only emotionally challenging but also legally and financially complex, requiring meticulous attention. As a lawyer, I will detail the necessary steps and vital issues that must be considered to ensure my clients navigate this difficult period with minimal damage and fully protect their rights.

I. Starting the Process: The Right Decision and Preparation

The initial steps taken before filing for divorce significantly influence the course of the case.

1. Determining the Grounds for Divorce and the Type of Case

The Turkish Civil Code (TMK) regulates divorce under two main categories: Contested Divorce and Uncontested Divorce.

• Uncontested Divorce (TMK Art. 166/3): Requires the marriage to have lasted for at least one year and for both spouses to reach a complete consensus on all consequences of the divorce (alimony, custody, division of assets, compensation). This is the fastest, least damaging, and most cost-effective solution. However, it is critical that the prepared Uncontested Divorce Protocol is legally sound and structured to prevent future problems.

• Contested Divorce (TMK Art. 161-166): Filed when spouses cannot agree on the divorce itself or its consequences. These cases take longer as they require the burden of proof. Grounds for contested divorce include Adultery, Attempted Murder, Severe Ill-Treatment or Dishonorable Conduct, Committing a Crime and Leading a Dishonorable Life, Desertion, Mental Illness, and Irreconcilable Differences (Severe Discord) that fundamentally shake the marital union.

2. Gathering Evidence and Documentation

In a contested divorce case, you must prove your claims. Therefore, collecting legally admissible evidence before filing the lawsuit is vital.

• Material Evidence: Bank records, title deeds and vehicle registrations, rental agreements, invoices, written communications (SMS, email, WhatsApp, etc.), social media posts.

• Witnesses: Identifying reliable and impartial witnesses who have firsthand knowledge of the events.

• Avoiding Unlawful Evidence: Evidence that violates privacy (unauthorized audio/video recordings, spyware, etc.) will not only be disregarded by the court but may also lead to criminal charges against you.

II. Financial Consequences of Divorce: Asset Division and Alimony

The most complex and contentious part of a divorce case involves the financial outcomes.

1. Division of Assets (Liquidation of the Property Regime)

According to the Turkish Civil Code, the statutory property regime for those married after 01.01.2002 or those who did not enter into a property regime agreement after this date is the Regime of Participation in Acquired Property.

• Acquired Property: Assets gained for consideration during the marriage (salary, rental income, compensation for work, etc.).

• Personal Property: Assets owned before the marriage, those acquired through inheritance or gratuitous transfer, and claims for moral compensation.

The fundamental rule in asset division is the equal sharing of acquired property. In this process, the accurate determination of the spouses' assets, valuation, and proof of when each asset was acquired are of great importance. Detailed examination of company shares, real estate, and bank account movements is essential.

2. Types of Alimony (Nafaka)

Three main types of alimony are relevant in a divorce case:

• Interim Alimony (Tedbir Nafakası): Alimony ordered during the lawsuit to cover the living expenses of one spouse and/or the minor children.

• Poverty Alimony (Yoksulluk Nafakası): Paid indefinitely by the financially stronger spouse to the spouse who will fall into poverty as a result of the divorce, provided the latter is not more at fault than the former. This alimony must be requested, and its conditions must be proven.

• Contribution Alimony (İştirak Nafakası): Alimony ordered against the non-custodial parent to contribute to the education, health, and care expenses of the minor children. It continues until the child reaches the age of majority.

III. The Status of Children: Custody and Personal Relationship

The most sensitive issue in the divorce process is the future of the minor children. The court bases its custody decision on a single principle: The Best Interest of the Child.

1. Custody (Velayet)

Custody is the right and responsibility for the care, education, representation, and protection of a minor child.

• The court generally grants custody to the parent who can better ensure the child's physical and emotional development and provide a stable life.

• The child's age, educational status, relationship with siblings, and, particularly, the views of children over the age of 8 regarding custody are taken into account by the court.

• Granting custody does not mean the termination of the other parent's rights. The non-custodial parent's right to establish a regular personal relationship with the child (visitation days) is guaranteed by law.

2. Regulation of Personal Relationship

The court meticulously regulates the personal relationship (visitation days, overnight stays, holiday sharing) between the non-custodial parent and the child. It is important that this arrangement is flexible and implementable, without disrupting the child's school and social life.

IV. Compensation Claims: Pecuniary and Non-Pecuniary Damages

The party who is not at fault or is less at fault in the events leading to the divorce has the right to claim compensation from the other spouse.

1. Pecuniary Damages (Maddi Tazminat - TMK Art. 174/1)

The faultless or less-faulty party whose existing or expected financial interests are damaged by the divorce may request appropriate pecuniary compensation from the at-fault spouse. This generally aims to compensate for the loss of economic well-being that would have been achieved had the marriage continued.

2. Non-Pecuniary Damages (Manevi Tazminat - TMK Art. 174/2)

The party whose personal rights have been violated due to the events causing the divorce may claim non-pecuniary (moral) damages from the at-fault spouse. Acts such as violence, adultery, and severe insult are the primary justifications for moral compensation.

V. Legal Process Management and the Role of the Lawyer

Divorce is one of the most emotionally intense processes. Therefore, having the legal process managed by a professional lawyer prevents loss of rights and psychologically eases the process.

• Correct Jurisdiction: The lawsuit must be filed in the Family Court located in the domicile of one of the spouses or where they last resided together for the preceding six months.

• Preparation of the Petition: The petition must include all claims, evidence, and requests (alimony, custody, compensation) completely and in accordance with legal terminology. An incomplete or erroneous petition can lead to delays or loss of rights.

• Attention to Deadlines: Missing legal deadlines, especially for the response petition, submission of evidence, and appeal/cassation periods, determines the fate of the case.

In conclusion, a divorce case is not merely the end of a marriage but also the laying of the legal foundations for a new life. You must remember that every step taken in this process will directly affect your future financial and personal life. Seeking professional support from a lawyer to fully protect your rights and ensure a swift and fair process is the most correct step to take on this difficult journey.

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Legal Disclaimer: This blog post is for general informational purposes only, and legal consultation with a lawyer is absolutely necessary for its application to specific legal situations. Acting without legal advice may lead to a loss of rights.