Divorce can be defined as the revocation of marriage by magisterial decree depending on a reason prescribed by law. It can be implemented when the spouses are still alive and by processing a case by one of the spouses. Civil law system requires that divorce can be actualized only by magisterial decree. In order for the judge to decide on divorce, one of the spouses should file a divorce suit. Simultaneously, the subject matter of the divorce should be based on an occasion prescribed by law.
If an individual would like to process a divorce case, he/she should have built an admissible marriage and it continues to exist at the time when the spouse presents the case. If there is no valid marriage exists, the divorce cannot be decreed. In this case, the matter is cancellation of the marriage. The difference between cancellation of marriage and divorce is based on these distinct cases.
It is not necessary to be free from fault in order to process a divorce case. The spouse who partly or even completely misbehaved can file a suit. In another article in our site (discrediting unity of marriage and divorce), we mentioned that there is no requirement of faulty condition to process a case. However, this doesn’t mean that misbehaviors are not important. One of the spouses could allege that the other party is faultier and thus, alter the conclusion of the case. The proportion of wrongdoing affects the ramifications of the case in terms of subsistence, indemnification, parental authority and so forth.
In Turkish Civil Law, the reasons for divorce are limited. These are; fornication, attempting against life, behaving in indignity, involving in crime, living an inglorious life, abandonment, mental disease, and discrediting unity of marriage. In addition to that, it is prescribed that divorce is possible in the condition of a fair cause. Therefore, continuity of family unity and protection of family organization are attempted to be ensured. However, when marriage becomes unbearable for the spouses, it is also regarded as a fair cause for divorce and thus, CONSENSUAL DIVORCE is provided to the spouses agreed on divorce. In this type of divorce, spouses reach an agreement in every aspect of the case and they resort to a court to cease their unity of marriage. If there is a common child, the parties compromise on parental rights, subsistence payment on demand, and share of property and prepare a protocol to process the case. If parties agreed on the terms of divorce and there is no obstacle found against it, the marriage ends with consensual divorce.
In case the spouses cannot compromise, divorce takes place as CONTENTIOUS DIVORCE. The case is regarded as contentious because the parties cannot reach to an agreement on the parental rights, subsistence payment, share of property and so forth. After the suit is filed, the judge has to take some temporary precautions against the negative repercussions in the process of the case. These precautions include the issues of sheltering spouses, subsistence payment, allowance for children’s education and other expenses. In addition, taking measures on the compensation or the management of property after shared by parties can be decided when the case is finalized. At the end of the case, there can be harmed interest of one party and that party can ask for reimbursement. If one of the spouses has to face with poor living conditions after divorce and if that spouse is not the more faulty party, he/she can demand welfare allowance from the other party. In welfare allowance, the criterion is the degradation of life standard of one spouse as a result of the divorce. Therefore, when the substance payment is decided, the life standard of the parties should exactly be specified. Another issue that parties disagree is the parental rights of the common child. In case both parties demand for the parental right, the decision is based on the principal of child’s benefit. The judge decides on the party to take the parental rights on the grounds of child’s good. The distribution of property is decided on the consideration whether the property is obtained after or prior to the marriage.
Subsistence money comes to an end with remarriage of the spouse. On the other hand, allowance for the children continues even the spouse owning the parental right remarries. After the divorce case, the subsistence money can be demanded by filing a new suit. If the subsistence money and other financial rights obtained through divorce are not demanded within the year after the finalization of the case, the spouse cannot claim these rights due to lapse of time. The payments of material and moral indemnities demanded after the finalization of divorce case also differs. Moral indemnities are paid lump sum and material indemnities can be paid as installment.