The Foundation of the Marital Union is Shaken
1. Introduction: The General Cause Rule in Divorce Law
The Turkish Civil Code views marriage not merely as an emotional union between two individuals, but also as a public institution crucial for maintaining social order. The continuation of marriage is vital for social harmony and the healthy development of children. However, the legislator acknowledges that in cases of serious incompatibility, events that undermine trust, or the breakdown of fundamental bonds such as respect, love, and fidelity, the continuation of the marriage can no longer be expected from the parties. At this point, Article 166 of the Turkish Civil Code, which defines "the fundamental breakdown of the marriage," constitutes the most comprehensive and frequently invoked general ground for divorce in divorce law.
This provision is a flexible regulation because the law does not enumerate specific behaviors that disrupt the marital union, thus allowing the judge broad discretion in each concrete case. Unlike specific grounds for divorce such as adultery, attempted murder, abandonment, and mental illness, Article 166 of the Turkish Civil Code does not prescribe any particular type of action; instead, it prefers the abstract but richly detailed concept of "fundamental disruption" of the marriage. This allows the law to be applied flexibly in response to changing social relations and marital dynamics in society.
2. Legal Basis and Text of the Article
Article 166, paragraph 1 of the Turkish Civil Code states the following:
"If the marital union has been fundamentally shaken to such an extent that it is no longer expected of the spouses to continue their shared life, either spouse may file for divorce."
The fundamental elements that can be derived from this provision are:
(1) The marital union must have suffered a serious disruption.
(2) This disruption must be such that it damages the foundation of the marriage and makes it impossible to continue living together.
(3) One or both spouses may be at fault in this disruption; however, it is not the mere existence of fault that is important, but the irreparable damage to the marital bond.
(4) As a result, it must become objectively impossible for the parties to continue living together.
Therefore, the article seeks not only superficial disagreements such as temporary anger or arguments, but also a profound deterioration that would shake the foundations of the marriage
3. The Meaning of the Concept of "Fundamental Disruption" of the Marital Union
The marital union is based on fundamental moral and legal obligations such as love, respect, fidelity, cohabitation, and solidarity. The permanent erosion of one or more of these bonds indicates that the foundations of the marital union have been shaken. In legal doctrine, the concept of "fundamental erosion" "an objective situation where the continuation of cohabitation can no longer be expected from the parties .
The Supreme Court has interpreted this concept broadly over the years, considering many situations such as the breakdown of the bond of love between spouses, constant arguments, insults, violence, indifference, jealousy, suspicion of infidelity, economic pressure, or emotional abuse as "fundamental disruption." For example, in the Supreme Court's 2nd Civil Chamber's decision numbered 2022/9786 K., it was emphasized that the marital union is fundamentally disrupted when the bond of trust between the parties disappears and mutual respect is lost.
The existence of a fundamental breakdown must be proven not only by subjective feelings but also by objective evidence. The judge, taking into account the specifics of the case and the general societal values, will assess whether the continuation of the marriage can still be expected.
4. The Relationship Becoming Unbearable and Objective Criteria
For a marital breakdown to be considered grounds for divorce, the breakdown must have made cohabitation unbearable for both parties. This is a purely objective criterion. The judge assesses whether a "normal person" could continue the marriage under the same circumstances.
In practice, the following situations are considered to render marital life unbearable:
– Constant insults, humiliation, contempt, indifference, and degrading remarks;
– Physical or psychological violence;
– Inappropriate intimacy with other people by the spouse or suspicion of infidelity;
– Failure to perform household chores, economic responsibilities, or family duties;
– Excessive interference in the marriage by extended family;
– Prolonged refusal of sexual intercourse or its transformation into coercion.
numbered 2019/10453 E., 2020/7654 K. , the 2nd Civil Chamber of the Supreme Court of Appeals ruled that the spouse's constant insults and profanities were behaviors that completely destroyed the relationship of trust; and that the marital union had been fundamentally shaken.
5. Fault and its Effect on Divorce Judgments
According to Article 166 of the Turkish Civil Code, it is not necessary for one party to be "more at fault" for a divorce to be granted; what matters is that the marital union has been irreparably broken down. However, the severity of the fault is decisive in terms of ancillary consequences such as compensation and alimony.
If the plaintiff can prove the defendant's seriously culpable behavior, financial and moral damages, as well as alimony, . Conversely, the lawsuit of the party who is more at fault in the breakdown of the marriage may be dismissed.
in the principle decision of the Supreme Court's General Assembly of Civil Law No. 2019/123 K. , even in cases where both parties are equally at fault, a divorce should be granted if it is no longer possible to continue the marital life. This decision demonstrates that the judge should avoid a formalistic approach, taking into account that the marriage has effectively ended.
6. Evidence and Burden of Proof
In divorce cases based on Article 166 of the Turkish Civil Code, the burden of proof rests with the plaintiff. However, proof is facilitated if supported by the opposing party's admission, witness statements, or written evidence. Courts still consider witness statements to be among the strongest evidence; the testimonies of those who closely witnessed the marriage (neighbors, relatives, mutual friends) are of particular importance.
In modern practice, digital evidence such as social media messages, email correspondence, WhatsApp records, camera footage, and audio recordings can also prove that the marital union has been broken. However, this evidence must have been obtained through lawful means; otherwise, it will be rejected in accordance with Article 38/6 of the Constitution and Article 206 of the Code of Criminal Procedure.
7. The Effects of Forgiveness, Tolerance, and Statute of Limitations
If one spouse has explicitly or implicitly forgiven the other's wrongful behavior, they can no longer file for divorce based on that incident. For example, if a spouse who has been cheated on continues to live together for a long time and behaves in a way that shows acceptance of the situation, forgiveness is considered to have occurred.
Forgiveness can be expressed through explicit statements or through behavior. However, in each case, the judge must assess whether forgiveness is genuine based on concrete evidence. Forgiveness eliminates not only the right to a divorce but also any claim for compensation based on the incident.
8. Consequences of the Dissolution of Marriage
With a divorce decree, personal and financial ties between the parties cease. However, according to Article 175 of the Turkish Civil Code, alimony is entitled to, according to Article 174, material and moral compensation is entitled to, and according to Article 182, custody and personal contact with the child are entitled to.
If the culpable party causes the other spouse to suffer economic hardship, liability for compensation arises. Similarly, when determining the custody of joint children, the principle of "the best interests of the child" is taken as the basis; the fault of the parties only has an indirect effect in this regard.
9. Conclusion and Evaluation
Article 166 of the Turkish Civil Code is the most flexible and frequently applied provision of Turkish divorce law. While the legislator aims to protect marriage, it considers it contrary to human dignity to forcibly continue a union that has been shaken to such an extent that its continuation can no longer be expected from the parties. Therefore, it is the judge's duty to assess in each specific case whether the parties are genuinely capable of maintaining the marital bond.
The precedents set by the Supreme Court of Appeals show that if the marital union is fundamentally shaken, regardless of the distribution of fault, a divorce should be granted if it is determined that the parties have lost the bonds of love, respect, and trust towards each other. However, this decision must be supported by strong evidence and meticulously justified by the judge to prevent the arbitrary undermining of the institution of marriage.
Marriage is the smallest yet strongest structure of a society. However, forcibly maintaining a structure whose foundations have crumbled harms both the parties involved and society as a whole. Article 166 of the Turkish Civil Code aims to protect both the individual's right to freedom and the family structure of society by establishing this balance.
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