Divorce due to abandonment is one of the special reasons for divorce. In order for the parties to be able to file for divorce based on the reason for the abandonment, the abandonment must have lasted at least 6 months. Article 164 of our Civil Code No. 4721. It is regulated in the article :
“Article 164 : marriage is the Union of one of the spouses in order to fulfil the obligations arising from or abandoned by the other public housing without a justifiable reason does not turn if it lasted at least six months of separation, and this situation continues, made by a judge or a notary public upon request and for a reminder, if you were unsuccessful, the abandoned spouse can file for divorce. He who forces the other to leave the common residence or prevents him from returning to the common residence for no justifiable reason is also considered to have left. At the request of the spouse entitled to the case, the judge or notary shall warn the spouse who has left the case that he should return to the common residence within two months and the consequences that will arise if he does not return, at the warning that he will make without examining the merits. This warning is made by announcement when necessary. However, a notice cannot be requested unless the fourth month of the specified period for filing for divorce has expired, and a lawsuit cannot be filed until two months have passed after the notice.”
As it can be seen, the first condition for filing for divorce due to abandonment is that the separation lasted at least 6 months. Another condition is that the spouse who filed a lawsuit sends a warning to the other spouse with a warning that he must return to the common residence within two months.
As stated in the article of the law, the spouse who forces the other spouse to leave the common residence or prevents him from returning to the common residence for no justifiable reason is also considered to have left. In this case, the defective party will be the spouse who forces him to leave.
Court of Cassation 2. 2005/9041 E of the Legal Department dated 15.06.2005. and 2005/9271 K. as stated in its decision No.:
“According to the witness statements heard in the alimony case, the plaintiff of the divorce case kicked the husband woman out of the house and forced her to leave. The spouse who forces his spouse to leave the communal residence or prevents him from returning to the communal apartment for no justifiable reason is also considered to have left. As of 164 of the Turkish Civil Code. item condition was not fulfilled. It is contrary to the procedure and the law to decide in writing when the plaintiff’s abandonment-based case should be dismissed and required to be overturned.”
As it can be seen, the leaving spouse, who is the defective spouse, does not have the right to sue.
Again, the 2nd Supreme Court. 2013/14751 E of the Legal Department dated 04.12.2013. 2013/28533 K. this opinion has been repeated in the numbered hymn:
“In the respondent’s response to the warning, it is seen that the defendant objected to the warning by stating that his wife had been violent, had been kicked out of the house, and had taken the children and gone to the village. In this case, the warning taken by the plaintiff’s husband does not have consequences, and the adoption of a divorce case based on such a warning cannot be decided. For this reason, the appeals against the divorce case were not considered in place; it was deemed appropriate to approve the correct decision in terms of its result by changing the justification (HUMK.md.438/son).”
Moreover, the General Assembly of the Supreme Court of Law has the same opinion. Dated 04.11.2009 2009/2-402 E. 2009/484 K. in the decree of the General Assembly of the Supreme Court of Law No.:
” The case is part of Article 164 of the Turkish Civil Code No. 4721. it is related to the request for divorce due to abandonment based on the clause.
The defendant, the woman filed for alimony in history 09.03.2005 before opening the case at hand; by the court, the plaintiff in marriage the husband of the joint, without justifiable reason, the defendant was flawed man and woman living together, forcing the plaintiffs to refrain from the woman’s right is a separate living therefore the defendant, the defendant’s livelihood in support of the measure you want for a separate living woman in period the husband of the defendant on the grounds that the case should be determined after considering the economic situation of the adoption of the partial decided on 09.02.2006; the decision has been appealed by the plaintiff’s husband; of the Supreme Court 3. It was approved by the Law Department on 05.06.2006.
The plaintiff husband received Karsiyaka 1 on 25.09.2006 after the alimony case was finalized. Applying to the Family Court, the defendant stated that the woman had left the joint residence, despite the plaintiff’s efforts, the defendant woman had not returned to the joint residence, and asked the defendant to return home, otherwise the divorce will be filed for a warning decision to be issued. By the Court on 27.09.2006 day and 2006/105 D. iş Esas issued a warning decision with the number of 55 Decisions and notified the defendant’s signature on 12.10.2006.
The case at hand, based on the allotment was opened on 02.03.2007 prompt with a divorce by the court, after considering the statements of the witnesses of the defendant, the defendant to his wife, insulting, violent, out of the house, the house full of events that changes the key in the formation of the plaintiff’s husband is flawed, therefore the defendant did not have to comply with a warning back to the woman’s house, the home of the plaintiff’s case is dismissed on grounds that the notice is sincere husband.
Upon the appeal of the plaintiff’s deputy, the decision of the special chamber was overturned unanimously on the grounds described above and on the wager that the case should be accepted.
The court resisted the previous decision and decided to dismiss the case; the deputy plaintiff appealed the decision.
The dispute that comes before the General Assembly of Law through resistance is collected at the points whether the phenomenon of abandonment occurs in a legal sense in a concrete event; whether the abandoned spouse is actually a plaintiff or a defendant, and accordingly, whether the plaintiff has the title of a party in terms of being able to file for divorce based on abandonment.
Firstly, it is useful to examine the legal basis and conditions of a divorce case based on abandonment:
“Divorce based on the legal reason for the abandonment”:
article 132 of the Civil Code of the Turkish Republic No. 743, which was repealed (amended) on 01.01.2002. in the article;
“If one of the husband and wife has left the other for the purpose of not fulfilling the duties assigned to him by the marriage or has not returned home for no apparent reason, if the separation has lasted at least three months and has been ongoing, the other can file for divorce. At the request of the party entitled to the case, the judge warns the other party to return home within a month. This warning is made in accordance with the ad order. As far as it is not possible to request a warning unless the second month of a certain period of time for the substitution of a divorce case is found to be hitam, and the case cannot be substituted before the end of a month in the event of a warning.”
Article 164 of the Turkish Civil Code No. 4721. articles:
“In order to fulfil the obligations arising out of the marriage if one spouse by the other without a justifiable reason does not turn or abandoned public housing if it lasted at least six months of separation, and this situation continues, and upon request made by the judge for a reminder, if inconclusive, the deserted wife may file for a divorce. The spouse who forces the other to leave the common residence or prevents him from returning to the common residence for no justifiable reason is also considered to have left.
At the request of the spouse entitled to the case, the judge warns the spouse who has left the case that he should return to the common residence within two months and the consequences that will arise if he does not return, at the warning that he will make without examining the merits. This warning is made by announcement when necessary. However, a warning cannot be requested unless the fourth month of the specified period for filing a divorce case has expired, and a lawsuit cannot be filed until two months have passed after the warning,”it was arranged.
As can be seen, the Old Law No. 743, abandoned, or does not rotate against his wife that “the others” Case opener expressed; 4721-in-law, who left public housing does not rotate in the manner described without a valid reason against that spouse or “abandoned spouse may lead to divorce,” with the one included in the form of provision to sue, it is stated that the abandoned spouse. In the last sentence of the same paragraph of the article: “a justifiable reason to leave home without forcing the other common or public housing prevents it from turning too wife she left” arrangement, bringing out the reasons that are not included in the preceding provisions abandoned “abandoned dead” has been added to the state.
More specifically, Article 164 of the Turkish Civil Code No. 4721, the text of which is taken in the same way as above. by the newly introduced regulation with the last sentence of the first paragraph of the article, the spouse who now forces his spouse to leave or prevents him from returning to the common residence is also considered to have left.
In this case, when the entire article is considered, it is useful to focus on the concepts of “abandoned spouse”, “abandoned spouse” and, accordingly, “spouse with the right to a lawsuit:
Worth noting that here, “the spouse who has left the concept of” marriage only the Union of one leaving the other in order to fulfil the obligations arising from public housing to the spouse that does not rotate is not without a reason or justifiable; this concept by express provision of the law to try to force the other spouse wife left includes the abandonment or deemed to have not to return.
If so, not only the spouse who leaves her husband or does not return to the common residence for no justifiable reason in order not to fulfill the obligations arising from the marriage union, but also the spouse who is forced to leave or prevented from returning to the common residence by his wife also falls under the concept of “abandoned spouse”.
Because the law has clearly regulated that the spouse who forces the other to leave the common residence or prevents him from returning to the common residence without a justified reason will also be considered abandoned, and by including the concept of a spouse who has the right to sue, it has given this spouse the right to sue in the capacity of abandoned.
In fact, teaching, public housing, living together in a wife, kicked out of house, or if it is forced to actually leave the house, the spouse who left home, who left the wife, not the wife who is regarded as forced to leave ( Köseoğlu, Bilal – Kocaoğlu, Köksal: family law and practice – scientific opinions and jurisprudence of the Bar Association publications, Ankara, October 2009, p. 42 ).
Then it turns out that the spouse who forced the abandonment or prevented the return home does not have the right to file for divorce due to the abandonment. It is understood that this result is also in accordance with the purpose of introducing the law.
If the contrary opinion is accepted, it is far from any hesitation that the recognition of the right to file for divorce to the spouse who is in an unfair position in front of the spouse who has been expelled from the house or forced to leave de facto will constitute a violation of the principle of the rule of law.
In this case, it is necessary to understand the phrase “spouse who has the right to sue” as “abandoned spouse” in the article and to accept that this spouse has the right to sue.
As a matter of fact, 05.05.2004 and 2004/4901 E, which reveal the application of the special department in similar cases. – 5829 K. in the decree No. 164 of the “Turkish Civil Code. according to the article, the abandoned spouse can file for divorce. The spouse who has left does not have the right to file for divorce on the basis of this reason. The spouse who forces the other to leave the common residence or prevents him from returning to the common residence without a justifiable reason is considered to have left”the same form of acceptance has been adopted by giving the justification.
Immediately here, the influence of the described facts on the plaintiff’s adjective of the party should also be emphasized.
The adjective is the relationship between the subject of the case, the subjective right ( Decency of the case ) and the parties. The driver’s license of the party, the driver’s license of the case and the right to follow the case are related to the personalities of the parties to the case, but the adjective of the party is related to the subjective right of the subject of the case (Kuru, Baki – Arslan, Ramadan – Yilmaz, Ejder: Civil Procedure Law, Yetkin Publishing, Ankara 1995, 7. print s. 231 ).
In that case, whoever or whoever has the right to the thing in question, this person or persons must also open the case. The adjective necessary for filing a lawsuit belongs to the person who has the right to the thing being sued. Whether a person has the title of plaintiff or defendant is determined according to material law, just as it is determined whether the right exists (Kuru, Baki-Arslan, Ramadan-Yilmaz, Ejder: Civil Procedure Law, Yetkin Yaylan, Ankara 1995, 7. print s. 231-232; Ustundag, Saim: Civil Trial Law, Alpha Edition Publication Distribution, Istanbul 1997, p. 307 ).
In order for the court to make a decision on the merits of the right under consideration between the parties, these persons must really have the Decibels of plaintiff and defendant in that case. If one of the parties does not really have the title of plaintiff and defendant in that case, no decision can be made on the merits of the case; the case is dismissed due to the absence of the adjective (from animosity ), even if the persons shown as parties to a case have the driving license and the right to pursue the case. As can be seen, the party is not the problem adjective, procedural law, substantive law relating to the essence of the subject of a lawsuit because it is a subjective issue, a right party, in the absence of a title, as a party to the litigation between individuals that appear in the case for preventing the birth of a burial is not right, can be proposed by the parties and the court at every stage of the proceedings must be taken into account automatically by an appeal.
As a matter of fact, the same principle was adopted by the General Assembly of the Law on 18.04.2007 and 2007/5-233 E., 2007/221 K. it is also adopted in decision No.
Since the right to file for divorce based on abandonment in the face of these explanations belongs only to the “abandoned spouse” in the clear meaning of the law, the spouse who forces the other spouse to leave the common residence or prevents him from returning to the common residence is in the position of “abandoned spouse”, but he has no right to file for divorce due to abandonment.
Considering the concrete event in the light of these explanations; according to the statements of the witnesses shown by the defendant woman and the scope of the file, it is also fixed that the plaintiff wife forced the defendant’s spouse to leave the common residence and prevented him from returning home by changing the key of the common residence.
In the cases described above are “forcing them to leave home without a justifiable reason or another common wife, she left public housing prevents it from turning too” shaped legal arrangement taken together, the plaintiff claimed as his wife really “abandoned” it’s not “abandoned” requires the adoption of the ES.
In this case, the plaintiff also does not have the right to file for divorce based on the abandonment belonging to the abandoned spouse.
All these comments in the light of; as a result of the rejection of the case is correct Also, if the rationale of the local court procedures and the law, since it does not comply with the decision above is described in detail in preventing or forcing them to leave the way home due to a lack of the right to sue the plaintiff’s husband, the spouse of the party with the justification that should not have dismissed the case since it has different capacity had ratified.”
The full texts of the Supreme Court Decisions are given below:
T.C.
SUPREME
law office
2005/9041
2005/9271
15.6.2005
CASE: At the end of the trial between the parties, the decision given by the local court and the date number shown above was appealed, and the paperwork was read and discussed as necessary Dec considered.
VERDICT: According to the witness statements heard in the alimony case, the plaintiff of the divorce case kicked the husband woman out of the house and forced her to leave. The spouse who forces his spouse to leave the communal residence or prevents him from returning to the communal apartment for no justifiable reason is also considered to have left. As of 164 of the Turkish Civil Code. item condition was not fulfilled. It is contrary to the procedure and the law to decide in writing when the plaintiff’s abandonment-based case should be dismissed and required to be overturned.
It was unanimously decided that the appealed decision should be OVERTURNED for the reasons described above, that there is no room for examining other issues according to the reason for the violation, that the advance fee for the appeal should be returned to the depositor, and that the way to correct the decision within 15 days of the notification of this decision will be open.15.06.2005
T.C.
SUPREME
law office
2013/14751
2013/28533
04.12.2013
At the end of the reasoning of the case between the parties, the decision given by the local court, the date and number shown above, was appealed, the documents were read and discussed as necessary and considered Dec:
The lawsuit filed by the plaintiff husband is based on the legal reason for the abandonment (TMK.md.164). Although the parties were living in Istanbul before the date of departure; the invited house…. it is located in the village. In addition, the defendant’s consent was not obtained in the selection of this residence to which the defendant was invited; (TMK.md.186) the residence was not determined through judge intervention (TMK.md.195). However, in the defendant’s response to the warning; it is seen that his wife was violent, kicked out of the house, went to the village to take the children and objected to the warning. In this case, the warning taken by the plaintiff’s husband does not have consequences, and the adoption of a divorce case based on such a warning cannot be decided. For this reason, the appeals against the divorce case were not considered in place; it was deemed appropriate to approve the correct decision in terms of its result by changing the justification (HUMK.md.438/son).
CONCLUSION: It was unanimously decided that the appealed decision should be UPHELD by changing and correcting the justification for the decision for the reason shown above; that the advance fee of the appeal should be returned to the depositor on request, within 15 days from the notification of this decision, the way to correct the decision will be open.04.12.2013
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