In short
Breakdown at the foundation in Article 166 of the Turkish Civil Code is the factual ground of a contested divorce; it is not the writing of an agreed protocol.
Article 166 is the factual ground. It is not the writing of an agreed protocol.
The special grounds for divorce want their own condition.
The list of witnesses is tied to the period.
Related articles: the contested process.
What does it mean that the marriage has broken down at its foundation?
Breakdown of the marriage at its foundation is the problems between the spouses becoming so grave that continuing the shared life cannot be expected of them. This general ground for divorce, also called "severe incompatibility" in practice, does not mean only that the spouses argue, or that they want a divorce. The court examines the effect on the marriage of the concrete conduct that is put forward, its continuity, the parties' fault, and whether the shared life is really sustainable.
Physical violence, a grave insult, conduct contrary to the duty of fidelity, continually avoiding the economic responsibilities, or the spouse being systematically excluded inside the family can be the subject of this assessment. The list is not closed; not every act produces a result of divorce automatically, however. The events must be put forward with lawful evidence.
This content is for general information. The same conduct can produce a different legal result according to the way it occurred and the parties' later attitude.
The meaning of it being the general ground for divorce
The Turkish Civil Code regulates some special grounds for divorce separately. Adultery, an attempt on life or particularly bad conduct, committing a crime and leading a dishonourable life, desertion, and mental illness are among these. Each of these grounds carries a condition of its own, and in some cases a period that extinguishes the right.
Breakdown of the marriage at its foundation is the general ground that takes up the result, on the shared life, of very different acts. The event not meeting all the conditions of a particular special ground does not mean it cannot be examined at all within the scope of the general ground. For example, even if the conditions of the notice and of the period have not formed for desertion, the spouse avoiding the family responsibilities for a long time can be taken up in the assessment of breakdown at the foundation.
On this ground, two connected measures come to the front:
- The union having broken down objectively: The trust, the respect, the solidarity, or the arrangement of the shared life between the spouses being seriously impaired
- The shared life having become something that cannot be expected: It not being reasonably possible to ask the claimant to continue the marriage in the same way in the face of what was lived
Only the marriage being unhappy is not a sufficient legal explanation. It should be shown which event impaired the trust, or the shared life, and how.
Which acts can be taken into the assessment?
In the trial, the events are assessed on their own and as a whole. A single grave event can break the union; lighter events can gain importance when they show repetition and continuity. Whether the conduct was before or after the marriage, whether it was forgiven, and its closeness to the date of the action can also be examined.
According to the features of the concrete event, these acts can come onto the agenda:
- Physical violence, a threat, or damage to belongings
- Continual insult, belittling, and words aimed at the spouse's honour
- Conduct that breaches the duty of fidelity
- Not meeting the basic needs by controlling the spouse's income
- Leaving the shared home for a long time without a just cause
- Systematically sharing the family's secrets with third persons
- Keeping the spouse from seeing their family or their social circle
- Continual indifference to the shared life and to the care of the children
- Conduct of addiction affecting the family's safety gravely
- Avoiding the duty of support in the spouse's illness, or in a difficult period
This list is not a "guarantee of divorce". For example, the spouse seeing their family often is not counted as fault on its own; its connection with pressure directed at the other spouse, with insult, or with interference in the shared life should be explained. In a similar way, it is not a fall in income that is assessed, but a deliberate avoidance of the family expenses when the means were there.
Why does fault matter?
In an action for breakdown of the marriage at its foundation, fault has different functions as regards the decision of divorce and the side results. The claimant does not have to be entirely without fault. The party who is equally at fault, or less at fault, can also bring the action. If the claimant's fault is heavier, the defendant's objection to the divorce can gain importance, however.
The defendant's objection is not unlimited either. If the objection has the character of an abuse of right, and no interest worth protecting remains, for the defendant and for the children, in the marriage continuing, a decision of divorce can come onto the agenda. This exception is not applied automatically in every long separation; all the conditions of the file are examined.
The relation of fault to the financial results is taken up separately:
- For pecuniary compensation, the existing or expected interest being injured because of the divorce, and the suitable conditions of fault
- For non-pecuniary compensation, an attack on the right of personality, and the statutory assessment of fault
- In maintenance for poverty, the fault of the person who asks for maintenance not being heavier than the other spouse's
- In maintenance by way of contribution, the spouses' fault not being decisive, because the child's expenses are the basis
The question "what percentage at fault will the court find me?" is not always answered with a mathematical ratio. Qualifications such as full fault, heavy fault, equal fault, or an absence of fault can be made in the decision according to the events.
Forgiveness, tolerance, and an attempt at reconciliation
If one of the spouses, after learning of a particular act, forgave it of their free will and really continued the shared life, it can become difficult to rely later on the forgiven event, on its own, as fault in the divorce. A similar assessment can be made for conduct that was met with tolerance. The aim of this is not to punish the spouses' effort to reconcile, but to determine which events, at the date of the action, really made the marriage unsustainable.
Not every return is forgiveness. Fear of violence, economic necessity, a short trial for the children, or the actual rupture continuing in separate rooms may not mean a real reconciliation. Whether the forgiveness was formed by an open statement or by conduct, and whether there was pressure, is investigated.
If a new event is lived, the context of the earlier events can gain importance again. Presenting forgiven events in the pleading as if there had never been a reconciliation can damage credibility, however. The timeline should be built honestly and completely.
Which evidence can be used for proof?
The claimant must, as a rule, prove the facts they rely on. The defendant can also support their defence, and the facts they put in return, with evidence. The evidence must be obtained lawfully, and must be connected with a particular event. A large number of unrelated screenshots, or a witness said to "know everything", does not strengthen the file.
According to the subject, this evidence can be assessed:
- Witnesses who directly saw or heard the event
- The sequences of messages and of e-mail between the parties
- A medical report, and the records of the police and of the public prosecutor
- Decisions of protection, and the minutes of a breach
- Bank movements, and the documents of the joint expenses
- Records of a hotel, of travel, or of an address
- Reports of an examination by social services, or by an expert
- Statements of the other party that have the character of an admission in proper form
A witness is not counted as knowing in person every event the parties later told them. It should be clear which event they witnessed, and how. Being a close relative does not, on its own, make the account invalid; consistency, and harmony with the other evidence, is assessed.
Entering a private account without permission, spyware, a planned secret recording, or a change on a document creates a risk of unlawfulness and of a separate liability. A method that could constitute an offence should not be used on the ground that the evidence will be lost.
How does the process of the action proceed, step by step?
The general flow of a contested action based on breakdown of the marriage at its foundation is as follows:
- The events and the requests are determined. The facts that caused the breakdown, and the requests for custody, for maintenance, and for compensation, are listed separately.
- Jurisdiction and venue are checked. The family court, and the statutory connection of place, is established.
- The statement of claim is presented. The events are explained chronologically, and in a way connected with the evidence.
- The reply, and a possible counterclaim, are received. The defendant answers the claims of fault, and can put forward their own requests.
- The preliminary examination is made. The points of dispute, the procedural objections, and the plan of evidence are determined.
- The taking of evidence is carried on. The witnesses are heard, the records of institutions are brought, and an expert examination is made when needed.
- Fault and the side results are assessed. Alongside the divorce, a decision is built about custody, maintenance, and compensation.
- Service and the route of challenge are followed. After the reasoned decision, an appeal to the regional court of justice in time, and the other routes of challenge if their conditions are there, are assessed.
The detail of the process is taken up in the contested divorce process, and the elements that affect the calendar in how long does a divorce action last?.
The defendant's objection, and not wanting a divorce
The defendant can say "I do not want a divorce". This statement does not, on its own, continue the marriage in law without a period. The court first examines whether the union has broken down at its foundation. If the claimant is more heavily at fault, the statutory effect of the defendant's objection is assessed separately.
Whether the objection rests on a sincere wish to save the marriage, on economic pressure, or on an aim of harming the other party can be taken up with the data of the file. The spouses having lived apart for a long time does not, on its own, make every objection an abuse; the position of the shared life, the children, and the parties' conduct are examined as a whole.
If the parties settle during the trial, the conditions of an uncontested divorce can be assessed. For this, not only the will to divorce, but also an open agreement on custody, on personal contact, and on the financial results, is needed. The differences between the two routes are compared in the guide on uncontested and contested divorce.
Actual separation if the earlier action was dismissed
An action brought on any ground for divorce may have been dismissed, and the decision may have become final. In the current statutory arrangement, if the shared life could not be rebuilt even though one year has passed after the decision of dismissal became final, the marriage can be deemed to have broken down at its foundation, and one of the spouses can bring an action for divorce. Old internet content relating to the earlier period of three years may not be current.
The critical dates on this route are these:
- The date the earlier decision of dismissal became final
- The completion of the statutory period of one year
- Whether the shared life was rebuilt in this period
- Whether the parties' short meetings have the character of a real shared life
- The date the new action was brought
Because of the transitional provisions, and of the date of the earlier file, the current legislation should be checked separately. Only the parties appearing registered at the same address, or coming together for a short time, may not answer on its own the question of whether a real shared life was built.
The children, and the financial results
Acceptance that the union has broken down only dissolves the bond of the marriage; custody, personal contact, maintenance, and compensation are each assessed separately. In the custody of the child there is no aim of punishing the spouse who was at fault. The child's safe care, the continuity of education, the parents' capacity, and the attitude of supporting the relationship with the other parent matter.
Interim maintenance takes up the needs during the action, maintenance by way of contribution takes up the child's expenses, and maintenance for poverty takes up falling into poverty because of the divorce, and the conditions of fault. Pecuniary and non-pecuniary compensation is not the automatic result of every decision of divorce either. The request, the fault, and the connection of the harm should be built separately.
The liquidation of the matrimonial property regime often requires a separate calculation and trial, connected with the divorce ruling becoming final. A decision that "the union has broken down at its foundation" does not mean that half of all the property will be given in the same decision.
Where the file of the breakdown is read from
The shared life having become unbearable, the account of fault, and the list of evidence are read side by side. A period that is not written in the file is not added. The label of incompatibility is not counted as a ruling on its own. The Çankaya office does not choose the venue of the family court.
In Ankara, an action based on this ground is brought in the family court. Venue is determined by statutory measures such as the place of residence of one of the spouses, or the place where they lived together for the last six months before the action. The period of the shared home in Çankaya, and the current records of residence, can matter for that reason.
The workload of the local court can affect the intervals of service and of hearings; it does not change the measure of "breakdown at the foundation". Rather than repeating the emphasis on Ankara in the pleading, a concrete account of the events, the correct address, and evidence that can be reached matter. For the general frame of family law relating to divorce and its side results, the page on family law can be looked at.
Why does using the concept correctly matter?
Breakdown of the marriage at its foundation is not the acceptance, automatically, of every unhappiness as a legal ground for divorce. The court assesses the sustainability of the shared life over concrete events. For that reason, rather than saying "there is severe incompatibility" in the pleading, it should be shown which act took place when, how it affected the marriage, and with which evidence it will be proved.
This content does not stand in for a definite legal opinion. When the chronology of the events, the attempts at reconciliation, the claims of fault, and the evidence are examined together, the scope of an action based on the general ground can be built more soundly.
Conclusion
This writing is for general information. The document, the period, and the procedure of the concrete event must be read separately; there is no promise of a result from memory.
A lawyer in Ankara does not write, in the marriage, a period that does not stand in the file.