Contested Divorce — Procedure, Time Limits and Consequences

The contested divorce procedure, the statutory time limits, the types of evidence, and the consequences of divorce for alimony, custody and damages, explained under the Turkish Civil Code.

What Is a Contested Divorce and How Does It Differ from an Uncontested Divorce?

A contested divorce is an action brought where the spouses cannot agree on the divorce itself or on its financial and personal consequences, and in which the judge decides after examining the parties' allegations and evidence. Unlike the uncontested divorce under Art. 166/3 of the Turkish Civil Code (TMK) No. 4721, in a contested divorce one of the parties does not accept the action or the parties cannot agree on its consequences.

Whereas an uncontested divorce requires the spouses to have been married for at least one year and to apply jointly, or for one to accept the action brought by the other, no such time requirement applies in a contested divorce. A contested divorce action may be brought even from the first day of the marriage. In this type of action the judge freely assesses the evidence lawfully presented and decides within the framework of the facts and claims advanced by the parties and the statutory conditions of the ground of divorce relied on.

What Are the Grounds for a Contested Divorce?

The Turkish Civil Code sets out the grounds for divorce in two main categories: special and general grounds. For the special grounds in TMK Arts. 161-165, the particular conditions of the article relied on — as to the act, the time limit, forgiveness, intolerability and any medical report — are each required separately. The general ground for divorce is the irretrievable breakdown of the marital union under TMK Art. 166.

Special Grounds for Divorce

Adultery (TMK Art. 161): one spouse breaching the duty of fidelity by having sexual relations with another person. An action for divorce on the ground of adultery must be brought within 6 months of learning of it and in any event within 5 years. A spouse who has forgiven loses the right of action.
Attempt on life, extremely ill-treatment or seriously degrading conduct (TMK Art. 162): one spouse attempting the other's life; depending on the gravity of the act, using physical violence or engaging in seriously degrading conduct may fall within this scope. The action must be brought within six months of learning of the ground and in any event within five years of the act; a spouse who has forgiven has no right of action.
Commission of a crime and leading a dishonourable life (TMK Art. 163): one spouse must have committed a degrading offence or led a dishonourable life, and that situation must make it intolerable for the other spouse to live together.
Desertion (TMK Art. 164): the desertion must have lasted at least six months and be continuing. At least four months must have passed since the desertion before a warning may be sought; the action cannot be brought before the two-month period given in the warning issued through a judge or notary has expired. Any just cause for the desertion, and the conditions as to the matrimonial home and the invitation to return, are examined separately.
Mental illness (TMK Art. 165): where one spouse's mental illness has made living together intolerable for the other, and an official medical board report establishes that there is no possibility of recovery, the other spouse may bring a divorce action.

The General Ground for Divorce

Under TMK Art. 166/1-2, where the marital union has broken down to such an extent that the spouses cannot be expected to continue their life together, either spouse may bring a divorce action. Where the claimant is more at fault, the defendant has a right to object to the action; but where the objection amounts to an abuse of right and no interest worthy of protection remains in the continuation of the marital union, the judge may grant the divorce.

The period of de facto separation in TMK Art. 166/4 was reduced from three years to one year by the 2024 amendment. Where one year has passed since the dismissal of an action brought on any ground of divorce became final and the common life has not been re-established, the marital union is deemed to have broken down and a divorce is granted upon the application of either spouse. In files where the dismissal and its finality predate the amendment, the entry into force and transitional provisions must be examined separately.

How Is a Contested Divorce Action Brought and How Does the Procedure Work?

A contested divorce action begins when the claimant spouse files a statement of claim addressed to the family court. The court with subject-matter jurisdiction is the family court, and venue lies, under TMK Art. 168, with the court of the place of residence of one of the spouses or of the place where they last lived together for the six months preceding the action.

The Procedure Step by Step

Filing the statement of claim: the claimant files with the family court a statement setting out the ground of divorce, the evidence and the claims. The court fee and expenses advance are paid.
Preliminary order: the court examines the statement of claim, issues a preliminary order and directs that the defendant be served.
The defendant's defence: the defendant may reply within two weeks of service of the statement of claim. Under HMK Art. 127 a defendant who applies in time may be granted, once only and for no more than one month, an additional period according to the circumstances.
Reply and rejoinder: the pleadings stage is completed by the claimant's reply and the defendant's rejoinder. A period of 2 weeks is prescribed for each pleading.
Preliminary examination hearing: under HMK Art. 137 the court invites the parties to a preliminary examination hearing. At this stage the matters in dispute are identified, settlement is encouraged and the evidence is discussed.
Investigation stage: witnesses are heard, expert reports are obtained, specialist opinions are assessed and all the evidence is examined.
Oral proceedings and judgment: once the investigation is complete the parties are asked for their final words and the court delivers its judgment.

How Long Does a Contested Divorce Take?

The statute prescribes no fixed period for the conclusion of a contested divorce action. Service, the number of parties and witnesses, obtaining evidence from other institutions, expert examination and whether appeal lies all affect the duration of a file. For that reason, stage-based fixed periods such as “one to three years at first instance and three to five years with appeals” are not an official undertaking but only rough estimates drawn from practice.

The Code of Civil Procedure prescribes periods binding on the parties for pleadings and appeals; these are not the period within which the court will conclude the case. Although proceedings must be conducted within a reasonable time, no completion date can be promised without examining the particular file. Liquidation of the matrimonial property regime is likewise not an ancillary consequence of divorce but a separate dispute; if brought together, it may be severed and the divorce judgment may be awaited.

What Evidence May Be Used in a Contested Divorce?

Proof in a contested divorce is subject to the rules of evidence in the Code of Civil Procedure. The parties may rely on lawfully obtained evidence; under HMK Art. 189/2 evidence obtained unlawfully cannot be taken into account by the court. The judge's freedom to assess the evidence does not mean that unlawful evidence may be used.

Witness statements: the hearing in court of relatives, neighbours, friends and others. Witness statements are highly important evidence in divorce cases.
Messaging records: SMS, e-mail and WhatsApp correspondence may be submitted as evidence. Digital data obtained unlawfully is not admitted.
Social media posts: publicly accessible social media posts may be used as evidence.
Photographs and video recordings: visual records lawfully obtained constitute evidence.
Bank account movements and financial documents: used in particular for alimony and property division claims.
Police reports and forensic reports: police records and hospital reports are critical evidence in allegations of violence.
Expert reports: social investigation reports and the opinions of pedagogues and psychologists are decisive, particularly on custody.

What Interim Measures Are Available in a Divorce Action?

Under TMK Art. 169 the court is obliged, upon the bringing of a divorce or separation action, to take interim measures concerning the spouses' accommodation and subsistence, the administration of their property, and the care and protection of the children. These measures are taken of the court's own motion and apply throughout the proceedings.

Interim alimony: alimony ordered to be paid during the proceedings to the economically weaker spouse and to the children of the marriage.
Interim custody of the children: the parent with whom the children will live during the proceedings and the other parent's contact arrangements are determined.
Measures concerning the family home: it may be ordered that one spouse leave the family home, or the right to remain there may be determined.
Measures concerning property: an interim injunction may be granted to prevent the spouses from disposing of their assets.

What Are the Consequences of Divorce?

When the divorce judgment becomes final the marital union ends and the financial consequences of the divorce and the consequences concerning the children arise. TMK Arts. 174-182 govern the consequences of divorce in detail.

Material and Moral Damages

Under TMK Art. 174/1 a spouse who is free from fault or less at fault, and whose existing or expected interests have been harmed by the divorce, may claim appropriate material damages from the spouse at fault. Under TMK Art. 174/2 a spouse whose personality rights have been infringed by the events giving rise to the divorce may claim payment of an appropriate sum as moral damages from the other spouse at fault.

Alimony

Divorce gives rise to poverty alimony (TMK Art. 175) and contribution alimony for the children (TMK Art. 182). For poverty alimony to be awarded, the claiming spouse must be at risk of falling into poverty because of the divorce and must not be more at fault than the alimony debtor.

Custody

Under TMK Art. 182 the court awards custody of the child to one of the spouses in the divorce judgment. Custody is determined on the basis of the best interests of the child. Personal contact is ordered between the child and the spouse who is not awarded custody.

Division of Property

The regime of participation in acquired property ends with effect from the date the divorce action was brought; a final decision on liquidation awaits the divorce judgment becoming final. The division of property is a separate cause of action and may be brought together with, or separately from, the divorce action.

How Are Appeals Brought?

An appeal against the family court's judgment in a contested divorce may be brought to the regional court of appeal within 2 weeks of service of the judgment, under HMK Art. 345. The appeal is lodged by petition with the family court that gave the judgment, and the file is sent to the regional court of appeal.

Whether an appeal on points of law lies against the regional court of appeal's decision is determined by HMK Arts. 361-362, the type of decision and the finality threshold; the period for application is as a rule two weeks from service. Since the competent chamber of the Court of Cassation may change according to its allocation of business, no particular chamber should be guaranteed in permanent content. An appeal on points of law is essentially a review of legality.

Since the divorce judgment is not final during the appeal stages, the parties are still regarded as legally married. Once the divorce judgment becomes final, the necessary corrections are made in the civil registry and the parties become free to remarry.

Is an Attorney Mandatory in a Contested Divorce?

Although Turkish law does not require representation by an attorney in a contested divorce, legal support is of considerable importance given the complexity of the case, the need to gather and present evidence and the technical nature of the procedural rules. The parties may conduct the case in person or may entrust its conduct to an attorney by power of attorney.

Persons who meet the conditions for legal aid may obtain free legal assistance from an attorney appointed by the bar association under Art. 176 et seq. of the Attorneys Law. An application for legal aid is made to the court hearing the case or to the bar association.

Frequently Asked Questions

How long does a contested divorce take?

The duration depends on the scope of the file, service, the evidence, any expert examination, the court's workload and the appeals. There is no official average or guaranteed completion time.

Can a contested divorce become an uncontested divorce?

Yes, the parties may at any stage agree and convert a contested divorce into an uncontested one. The conditions in TMK Art. 166/3 must then be satisfied.

What happens if the defendant does not attend the hearing?

If the defendant does not attend despite due service, the proceedings may be conducted in their absence under the Code of Civil Procedure. The defendant's non-attendance does not mean acceptance of the claim; the claimant's obligation to prove their allegations continues.

Is it mandatory to call witnesses in a divorce action?

It is not mandatory, but in practice witness statements are regarded as important evidence in divorce cases. Witnesses are persons with knowledge of the parties' conduct within the marital union.

Who may bring a contested divorce action?

A divorce action may be brought by one of the spouses; the right of action is strictly personal. That said, if the claimant spouse dies while the action is pending, an heir may, on the conditions in TMK Art. 181/2, continue the action and seek a finding as to the defendant's fault. That special possibility of continuation does not mean that heirs may bring a divorce action in the first place.

Must the spouses live in the same house during the divorce proceedings?

No, the spouses may live apart once the divorce action has been brought. The court may make arrangements concerning the use of the family home by way of interim measures.

Is it possible to withdraw a divorce action?

Yes, the claimant may waive the action under HMK Art. 307. A waiver produces the effects of res judicata. If the defendant has brought a counterclaim, however, that counterclaim continues.

This content is for general information purposes and does not constitute legal advice.

Official sources: Turkish Civil Code No. 4721, Code of Civil Procedure No. 6100, Family Courts Law No. 4787, Law No. 6284