Divorce Cases and Consequences
With very high hopes, the bonds of marriage formed with happiness can unfortunately sometimes end in divorce. Divorce comes with a number of problems. With the termination of the marriage union, such consequences as custody, alimony, division of property, compensation appear.
Is the person who filed for divorce more advantaged?
One of the questions most asked by the parties involved in the divorce process is the person who first initiates the divorce case more advantageous? is the question. But if the spouse is claiming compensation based on the defect that is important in the divorce case, then the spouse must prove the defect. If the first of the parties cannot prove the defect rate in the case filed by the first party, he will not be able to obtain a result. The parties are liable to prove the defect attributed to each other. As can be seen, the process and outcome of the case are important, and it does not matter who initiates the case first.
Divorce proceedings are divided among themselves according to the Civil Code;
· Settled divorce
· Contentious divorce
Both types of divorce have a number of legal requirements within themselves and can be opened if circumstances arise. In this article we will consider both types of divorce, albeit partial, together with their legal requirements.
Settled Divorce Cases
The terms of a negotiated divorce are set out in paragraph 3 of Article 166 of the Turkish Civil Code. These are;
a) that the marriage lasted at least one year,
The most important condition for divorce by agreement is that the marriage union lasts at least 1 year. If the marriage lasted less than a year, it is impossible for the parties to divorce by agreement. If this is the case, the parties may divorce on the basis of severe subsistence, which is the main type of divorce proceedings based on other reasons for divorce, for example, the cause of the disturbance of the marriage union.
b) The spouses apply to the court together or one spouse accepts the other's case;
in practice, it is usually seen that the lawsuit brought by one of the spouses is accepted by the other spouse. However, they can also apply to court together.
(c) the judge hearing the parties in person to conclude that their will is freely disclosed;
Even if both parties are represented by a lawyer, the spouses are required to participate in the case of a negotiated divorce in person and declare their will for the divorce. That is, the judge hears and decides in person that the will of the parties complies.
d) The parties agree on an arrangement regarding the financial consequences of the divorce and the status of the children, and that the judge also considers the arrangement appropriate
Spouses are required to agree on issues such as compensation and alimony. If the parties have children in common, they must also agree on custody. Undoubtedly, the judge must also find all thisagreements appropriate. The judge may make any changes he deems necessary to the relevant agreement, taking into account the interests of the spouses and children. If these changes are also accepted by the spouses, divorce will be ruled.
In practice, the parties draw up a negotiated divorce protocol and submit this protocol to the negotiated divorce file.
Court of Arbitration in Settlement Divorce
The court in charge of a negotiated divorce is the family courts. Where there are no family courts, civil courts deal with cases with the function of family court.
Court with Jurisdiction in Settlement Divorce Cases
The Strict rule of jurisdiction does not apply in settled divorce cases. The parties may open this case in the court of any place where they agree.
Disputed Divorce Cases
In cases where the parties do not agree on a negotiated divorce, a contentious divorce may occur. Accordingly;
· where the parties do not agree on a 'divorce' (one spouse wants a divorce, the other does not),
· Both parties wish to divorce but do not agree on any of the financial consequences of the divorce (material and moral compensation, alimony, etc.) or in cases where they do not agree on the custody of the children,
Lawsuits filed by spouses alone or mutually are called contentious divorce cases. Again, the courts responsible for these cases are the family courts.
In order for the parties to be able to decide on a contentious divorce, a number of reasons are enumerated in the Law. The party filing for divorce must rely on any of these grounds. These are;
· fornication
If one spouse commits adultery, the other spouse may file for divorce. Starting from the fact that the spouse who has the right to the case learns the reason for the divorce, the right to sue decreases after six months and, presumably, five years after the act of adultery. The pardoning party has no right to sue.
· Caste for life, very bad or dishonourable behavior
Each spouse may file for divorce on the grounds that the other means to his life, or that he or she has been treated badly, or if he or she has acted gravely dishonourably. Starting from the moment the spouse who has the right to the case learns the reason for the divorce, the right to sue decreases after six months and, in any case, five years after the birth of this cause. The pardoning party has no right to sue.
· Committing crimes and leading a life without dignity
If one spouse commits a humiliating crime or leads a life without dignity and for these reasons cannot be expected of the other spouse to live with him, this spouse can always file for divorce.
· Abandon
If one of the spouses leaves the other for the purpose of not fulfilling the obligations arising from the marriage union or does not return to the common residence without a legitimate reason, the separation has lasted for at least six months and this situation is ongoing and the notice made by the judge or notary at will has been inconclusive, the abandoned spouse may file for divorce. The spouse who forces the other to leave the common dwelling or prevents him from returning to the common dwelling without a justified reason is also considered to have left. At the request of the spouse who has the right to the case, the judge or notary warns the spouse who leaves without examination of the merits of the case that he must return to the common residence within two months and the consequences that will arise if he does not return. This warning is made by announcement when necessary. However, a notice cannot be requested unless the fourth month of the specified period for filing a divorce has expired, and the lawsuit cannot be filed unless two months have elapsed after the notice.
· Mental illness
If one spouse is mentally ill and therefore cohabitation becomes unbearable for the other spouse, this spouse can file for divorce, provided that it is determined by the official medical board report that the disease did not allow it to pass.
· Shaking of the marriage union
If the marital union is shaken from its foundation to such an extent that their continuation of the common life is not expected of them, each of the spouses can file for divorce. In the cases specified in the paragraph above, if the plaintiff's defect is more serious, the defendant has the right to appeal the lawsuit. However, if this appeal is of the nature of an abuse of the right and there is no benefit left in the continuation of the marriage union worthy of protection for the defendant and the children, a decision may be made to divorce. If the marriage has lasted at least one year, the marriage is considered shaken from the basis of the union if the spouses apply together or one spouse accepts the case of the other. In this case, in order for a divorce to be granted, it is essential that the judge hears the parties in person to conclude that their will is freely disclosed and that the arrangement to be adopted by the parties regarding the financial consequences of the divorce and the situation of the children is appropriate. The judge may make such amendments to this agreement as he deems necessary, taking into account the interests of the parties and the children. Divorce is also ruled upon acceptance by the parties of these amendments. In this case, the provision that the pleas of the parties will not bind the judge shall not apply. If a decision is made to dismiss the case filed for any of the reasons for divorce and three years have elapsed from the date of finalization of this decision, if for whatever reason the common life has not been restored, the marriage union is considered fundamentally shaken and a decision is made to divorce at the request of one of the spouses.
In the event that one or more of the above items occurs, one of the parties may file for a contentious divorce.
Separation Case
· The spouse who has the right to file for divorce can request a divorce if he wishes, if he wishes, a separation. If the reason for the divorce is proven, the judge decides to divorce or separate.
· If the case is related to the separation alone, a divorce cannot be decided. Separation can be decided if the case is related to divorce, but only if there is a possibility of re-establishing a common life.
· Separation can be decided for a period from one year to three years. This period begins to work with the finalization of the decision to separate.
· When the period ends, the separation situation ends spontaneously. If the common life has not been reestablished, each of the spouses can file for divorce. When arranging the results of the divorce, the events that were proved in the first case and the circumstances that arose during the separation period are taken into account.
Court with Jurisdiction in Disputed Divorce and Separation Cases
In divorce or separation cases, the competent court is the place of residence of one of the spouses or the court where they sat together for the last time for six months before the case.
When the case for divorce or separation is initiated, the judge shall take temporary measures necessary for the duration of the proceedings, in particular regarding the accommodation, subsistence of the spouses, the management of the property of the spouses and the care and protection of the children.
Outcomes in Divorce Proceedings
· Personal situation of the divorced woman
In the event of a divorce the woman retains the personal status she gained by marrying; however, she reclaims her last name before marriage. If the woman was widowed before marriage, she may ask the judge to be allowed to bear her maiden name.
If it is proved that the woman has an interest in using the surname of her divorced husband, and this will not cause any harm to the husband, at her request, the judge allows her husband to carry the surname. The husband may request the removal of this permission if the circumstances change.
· Material and moral compensation in divorce
The imperfect or less imperfect party whose present or expected interests are damaged by the divorce may seek appropriate material compensation from the imperfect party.
The party whose right to personality has been attacked due to the events that led to the divorce may ask the other party that is defective to be paid an appropriate amount of money as moral compensation.
If the case for material and moral compensation in divorce is not opened together with the divorce case, it can also be filed in the form of a separate case within 1 year from the date of finalization of the divorce decision.
· Poverty Allowance in Divorce
The party who will fall into poverty due to the divorce may request alimony from the other party indefinitely at the rate of his financial strength for his livelihood, provided that the defect is not heavier. This alimony is called “poverty alimony”. The fault of the person liable for alimony is not sought.
How to Pay Compensation and Alimony
It can be decided to pay material compensation and poverty alimony in bulk or in the form of a will according to the requirements of the situation.
The payment of spiritual compensation in the form of a will cannot be decided.
The material compensation or alimony decided to be paid in the form of a will (income) arises spontaneously in the event of the remarriage of the creditor or the death of one of the parties; it is abolished by a court order if the creditor lives as if he were actually married without marriage, disappears from his poverty or lives without dignity.
In cases where the financial situation of the parties changes or equity requires, it may be decided to increase or decrease the will.
The judge may decide how much material compensation or alimony, which is decided to be paid at will, in the form of a will, in the coming years, in accordance with the social and economic situation of the parties.
Court with jurisdiction in the case of alimony
In alimony cases that will be opened after a divorce, the court of the place of residence of the alimony creditor is competent.
Liquidation of Property as a Result of Divorce
In the event of a divorce, the property is liquidated according to the provisions on the regime to which the spouses are attached. If the spouses have not preferred any regime, then the goods are liquidated within the framework of the regime of participation in the acquired property.
In case of separation, he may decide on the abolition of the property regime agreed between them by contract, based on the duration of the separation and the situation of the spouses.
Looking for a Divorce Lawyer
How to file for divorce, which of the contested or negotiated divorce cases is the lehe, how to resolve issues such as custody, alimony, material and moral compensation, division of property divorce lawyer must be agreed with. A person who is looking for a divorce lawyer must first contact the lawyer or lawyers he wants. In addition, he does not have the obligation to hire the first person he meets, but whoever is most suitable among the interviewees can work with him. So at this point, he is free to work with any lawyer he wants. The person who will hire a divorce lawyer can work with a lawyer they trust or, taking into account their professional knowledge and experience, determine the person who best suits their interests.
It should be noted that there is no such thing as the best divorce lawyer. Despite this, people search the internet for “best divorce lawyer”, “best contentious divorce lawyer”, “best negotiated divorce lawyer”. Naturally, people do research in the hope of working with the best. But it is not correct to make such a distinction here.
Divorce While it does not matter where the divorce lawyer is located, it is important that he is an expert in this field. So, wherever your case is located in Istanbul, Ankara, Izmir, you need to have an expert divorce lawyer.