Contested Divorce Action

Marriage is a legal union that imposes mutual rights and obligations on the parties. Over time, however, the continuation of this union may become unbearable for one or both of the spouses. Where the spouses cannot reach agreement on the divorce itself or on its consequences such as custody, maintenance and division of property, a court judgment is needed to end the marriage. It is at this point that the contested divorce action process begins, in which the parties must prove their allegations and defences with evidence and every stage of which requires a legal struggle. Unlike divorce by mutual consent, this type of action is a complex journey that requires in-depth legal knowledge, patience and the right strategy.

This article has been written to explain in detail, in the light of the Turkish Civil Code (TMK) and current decisions of the Court of Cassation, starting from the question what is contested divorce, the grounds for divorce that form the legal basis of the action, all stages of the proceedings, their financial consequences and how you can protect your rights in this difficult process.

What Is a Contested Divorce Action and What Are the Conditions for a Contested Divorce Action?

The basic condition for filing a contested divorce action is that the spouse filing the action (the claimant) alleges and proves before the court the existence of at least one of the grounds for divorce listed exhaustively in the Turkish Civil Code. The court assesses as a whole the events (facts) put forward by the parties, the evidence supporting these events and the witness statements, and decides whether the continuation of the union of marriage has become unbearable for the parties and which party is at fault, and to what degree, in bringing about this outcome. This determination of fault will be decisive for the outcome of the contested divorce action and, in particular, for the fate of financial claims such as compensation and maintenance.

Technical Grounds for Divorce Regulated in the Turkish Civil Code

To be able to file a contested divorce action, the claimant must base the petition on a legally valid ground. The TMK has grouped these grounds under two main headings: "special grounds for divorce" and "general grounds for divorce". This distinction involves important differences in terms of the burden of proof and the judge's discretion.

Special Grounds for Divorce in a Contested Divorce Action (TMK Art. 161-165)

These grounds, listed specifically in the law, provide a more concrete and clear basis for divorce when they occur. These grounds are themselves divided into two: "absolute" and "relative".

1. Divorce on the Ground of Adultery (Contested Divorce Action) (TMK Art. 161)

Divorce on the ground of adultery is the most serious breach of the duty of fidelity that forms the basis of the union of marriage and has been accepted by the law as an "absolute" ground for divorce. This means that, if the existence of adultery is proven, the judge will order divorce without needing to examine separately whether this situation has made the union of marriage unbearable.

• Conditions for Contested Divorce on the Ground of Adultery: Adultery is where one of the spouses, while the union of marriage continues, knowingly and willingly has sexual intercourse with another person of the opposite sex. The Court of Cassation accepts as adultery a spouse beginning to live with another person as husband and wife, even during a de facto separation or while a divorce action is pending.
• Peremptory Period in a Contested Divorce Action on the Ground of Adultery: The spouse who learns of the act of adultery must file the action within 6 months from the date of learning and, in any event, within 5 years of the adultery. These periods are peremptory, meaning that they are taken into account by the judge of their own motion (re'sen).
• Forgiveness of Adultery in a Contested Divorce Action on the Ground of Adultery: The party who forgives the unfaithful spouse loses the right to file an action on this ground. Forgiveness may take place through an express declaration or through implied conduct, such as continuing the union of marriage after learning of the event.
• Proof in a Contested Divorce Action on the Ground of Adultery: Since adultery is generally committed in secret, it is difficult to prove. However, it can be proven by evidence such as hotel records, witness statements, social media correspondence, photographs and HTS records.

2. Contested Divorce Action on the Ground of Attempt on Life, Severe Maltreatment or Degrading Conduct (TMK Art. 162)

This article sets out another absolute ground for divorce covering three different acts. Proof of the existence of one of these acts is sufficient for a divorce judgment.

• Attempt on Life: This is where one of the spouses acts with the intention of killing the other. Acts such as attempted killing and incitement to suicide fall within this scope.
• Severe Maltreatment: These are serious attacks on the spouse's physical integrity or mental health. Conduct such as locking the spouse in the house and leaving them hungry, forcing them into abnormal sexual intercourse and constantly using physical violence is regarded as severe maltreatment.
• Degrading Conduct: These are serious attacks on the spouse's honour and dignity. Acts such as serious insults, humiliation in public and making unfounded and serious accusations (for example, throwing the spouse out of the house on the ground that "she was not a virgin") are accepted as degrading conduct.
• Peremptory Period and Forgiveness: As with the ground of adultery, the peremptory periods of 6 months from learning of the act and, in any event, 5 years from the act also apply here. The party who has forgiven has no right of action.

3. Contested Divorce Action on the Ground of Commission of an Offence and Living a Dishonourable Life (TMK Art. 163)

This article sets out a "relative" ground for divorce. In other words, in addition to the existence of these acts, it must also be proven that this situation has made the common life "unbearable" for the other spouse.

• Commission of a Degrading Offence: This is where one of the spouses intentionally commits an offence regarded as shameful in the eyes of society (theft, fraud, sexual offences, etc.). The offence must have been committed during the union of marriage, and it is a requirement that this situation makes living together impossible for the other spouse.
• Living a Dishonourable Life: This is adopting a continuous way of life contrary to society's moral standards. Conduct such as habitual gambling, alcohol or drug addiction and running a brothel is accepted by the Court of Cassation as living a dishonourable life. It is required that this conduct is not a one-off occurrence but has become a way of life.
• Condition of Unbearability: In both cases, the claimant spouse must prove that, because of these acts, they can no longer be expected to live with the other spouse.
• Time Limit: No specific peremptory period has been provided in the law for filing an action on this ground.

4. Divorce on the Ground of Abandonment (TMK Art. 164)

Abandonment is an absolute ground for divorce that the law has made subject to very strict procedural conditions. If these conditions are not fully met, the action is dismissed. Because divorce on the ground of abandonment requires very strict procedural conditions, it is not a method of divorce preferred by divorce lawyers.

• Conditions:

1. Act of Abandonment: One of the spouses must have left the common home with the intention of not fulfilling the obligations arising from the union of marriage, or must not have returned to the common home without a justified reason. Driving the other spouse out of the house or preventing them from returning home is also accepted as "constructive abandonment" (yapıntı terk) and gives the abandoned spouse a right of action.
2. Duration: The act of abandonment must have lasted at least 6 months.
3. Sending a Warning: It is mandatory that a "return home" warning be sent to the spouse who has left, through the court or a notary, after the end of the fourth month of the separation.
4. Warning Remaining Without Result: The spouse who has left must not have returned home within 2 months of service of the warning without a justified excuse.

5. Contested Divorce Action on the Ground of Mental Illness (TMK Art. 165)

This is also a relative ground for divorce and is not based on fault. For a divorce judgment to be given, the three conditions listed in the article of the law must exist together:

1. Existence of Mental Illness: That one of the spouses is mentally ill.
2. No Hope of Recovery: That it is established "by an official medical board report" that there is no possibility of the illness being cured. A single doctor's report is not sufficient.
3. Unbearability: That this situation has made the common life unbearable for the other spouse.

General Ground for Divorce (TMK Art. 166)

Contested Divorce Action on the Ground of the Fundamental Breakdown of the Union of Marriage:

This is the ground for divorce most frequently encountered in practice and frequently used by divorce lawyers. This general ground is relied on where the special grounds cannot be proven or where there is no wish to rely on a special ground.

• Definition: This is where the union of marriage has been so fundamentally shaken that the spouses cannot be expected to continue their common life. This is an abstract concept and is assessed by the judge according to the features of each specific case.
• Fault: The claimant must prove that the marriage has become unbearable because of faulty conduct of the respondent. In decisions of the Court of Cassation, countless forms of conduct, such as physical, psychological, social or economic violence, conduct undermining trust, insulting the spouse and their family, excessive indebtedness and gambling, have been assessed within this scope.
• Claimant's Fault: If the claimant's fault is greater, the respondent has the right to object to the action. However, if this objection amounts to an abuse of right and no interest worthy of protection remains for the respondent and the children in the continuation of the marriage, the judge may nevertheless order divorce.

Table: Absolute and Relative Grounds for Divorce Regulated in the TMK

How Is a Contested Divorce Action Filed?

The question of how a contested divorce action is filed is of vital importance for the process to begin in accordance with the law. The action is filed by applying to the competent Family Court with a duly prepared statement of claim and the documents required for divorce attached to it.

1. Determining the Court with Subject-Matter Jurisdiction and the Competent Court in a Contested Divorce Action: The courts with subject-matter jurisdiction in divorce actions are the Family Courts. The competent court, under TMK Art. 168, is the court of the domicile of one of the spouses or of the place where they have lived together for the last six months before the action.
2. Preparing the Statement of Claim in a Contested Divorce Action: The petition is the foundation of the action. The grounds for divorce, the events (facts) constituting these grounds, the evidence by which each event will be proven and the claims (custody, maintenance, compensation, etc.) must be written in clear, precise and legal language. Since the principle of party presentation (taraflarca getirilme ilkesi) applies in divorce actions, the statement of claim directly affects the action as a whole. At this point, it is strongly recommended that support be obtained from a divorce lawyer with experience in the field.
3. Documents Required in a Contested Divorce Action: In addition to the statement of claim, a photocopy of the identity card, the power of attorney (if there is a lawyer) and a copy of each item of evidence supporting the allegations (list of witnesses, photographs, message transcripts, medical report of injury, etc.) must be attached.
4. Payment of Fees and Costs: When the action is filed, it is mandatory to pay the required court fees and the advance on costs to the court cashier's office. The action is not deemed to have been filed until these costs are paid.

Stages of a Contested Divorce Action

The process of a contested divorce action consists of stages set out in the Code of Civil Procedure (HMK) which must be followed meticulously.

Table: Stages of a Contested Divorce Action

Burden of Proof and Evidence in a Contested Divorce Action

The burden of proof forms the basis of contested divorce actions. The claimant must prove with lawful evidence the ground for divorce alleged and that the respondent is at fault. If no evidence is submitted, the allegations are deemed not to have been proven, however true they may be.

Evidence of Infidelity in Divorce

In an action for divorce on the ground of adultery, proof of the act of infidelity is of critical importance. The following may be used as evidence of infidelity in divorce:

• Witness Statements: The statements of persons who directly witnessed the events.
• Hotel Records: Official records showing that the spouse stayed in the same room with another person.
• Social Media and Communication Records: The answer to the question do Facebook and WhatsApp records constitute evidence in divorce is yes. However, it is a requirement that these records have been obtained by lawful means. Unlawful evidence (secretly recorded audio, video, etc.) is not taken into account by the court and may even constitute an offence.
• Telephone records in a divorce action (HTS Records): HTS records requested from operators by court order show who spoke with whom, how often and from which base station, and are important evidence that strengthens a suspicion of infidelity. In divorce actions, however, it is not possible to request the content of SMS and similar records through the court.

Proving Violence in Divorce

Being subjected to violence within the union of marriage is a ground for divorce both as "severe maltreatment" (TMK Art. 162) and as "fundamental breakdown of the union of marriage" (TMK Art. 166). The evidence that may be used for proving violence in divorce is as follows:

• Medical Reports of Injury: Doctors' reports obtained immediately after the violence, documenting the injuries and the condition.
• Witness Statements: Statements of neighbours, family members or friends who witnessed the incident of violence.
• Messages and Emails: Records of written communication containing threats or insults.
• Police or Public Prosecutor's Office Records: Reports relating to complaints previously made because of violence, and decisions on protective measures taken under Law No. 6284.

Financial Matters in a Contested Divorce Action

How Much Are Maintenance and Compensation in a Contested Divorce Action?

There is no precise numerical answer to the question how much are maintenance and compensation in a contested divorce action. The amount is determined at the judge's discretion according to the features of each specific case and the parties' degrees of fault and economic and social circumstances.

On What Basis Is Maintenance Determined in a Contested Divorce Action?

• Interim Maintenance in a Contested Divorce Action: This is temporary maintenance (tedbir nafakası) ordered for the duration of the action for the subsistence of the spouse who would fall into economic difficulty and of the children.
• Post-Divorce Maintenance in a Contested Divorce Action: Post-divorce maintenance (yoksulluk nafakası) is ordered for an indefinite period in favour of the party who would fall into poverty because of the divorce and who is less at fault in the divorce than the other spouse.
• Child Support in a Contested Divorce Action: Child support (iştirak nafakası) is the maintenance paid by the spouse who has not been granted custody of the common child in order to contribute to the child's expenses such as care, education and health. The answer to the question of on what basis maintenance is determined lies in criteria such as the parties' income levels, living standards, ages and health conditions and the child's needs.

Pecuniary and Non-Pecuniary Compensation in a Contested Divorce Action

In the events causing the divorce, the party not at fault or less at fault whose existing or expected interests have been impaired may claim pecuniary compensation from the other party. In addition, the party whose personality rights (honour, dignity, self-respect, etc.) have been infringed because of the events that caused the divorce may also claim non-pecuniary compensation. When the amount of compensation is determined, the parties' degree of fault and economic circumstances are taken as the basis. According to decisions of the Court of Cassation, the amount of compensation should not be a means of enrichment but should be at a deterrent and satisfactory level.

When Does Maintenance Start in a Contested Divorce Action?

Where interim maintenance is requested in the statement of claim, it may start to run, by an interim decision to be given by the court, from the date of the action or from the date on which the interim decision is made. Post-divorce maintenance and child support, on the other hand, start when the divorce judgment becomes final.

How Is Property Divided on Divorce?

Division of property on divorce is one of the most important consequences of the end of a marriage. Divorce actions and the division of property may be heard together, or a separate action may also be filed after the divorce judgment has become final.

• Regime of Participation in Acquired Property: In Türkiye, the statutory matrimonial property regime for those who married after 1 January 2002 is the "regime of participation in acquired property" (edinilmiş mallara katılma rejimi). Under this regime, property acquired during the union of marriage (all asset values obtained for consideration, such as salary, bonuses and rental income) is shared equally between the spouses.
• Which Assets Are Not Divided on Divorce? The personal property of the spouses is not included in the division. This consists of property owned before the marriage, property acquired by inheritance or by gratuitous benefit (gift), and claims for non-pecuniary compensation.
• Household Goods in Contested Divorce: Household goods are also included in the division of property and are generally left to the spouse to whose personal use they are allocated, or their value is divided.
• Effect of Adultery or Attempt on Life: Where divorce is ordered on the ground of adultery or attempt on life, the judge may reduce in accordance with equity, or remove entirely, the share that the spouse at fault would receive from the matrimonial property regime (their share in the surplus value).

Process and Duration of a Contested Divorce Action

In How Many Hearings Does a Contested Divorce Action End?

There is no definite answer to the question in how many hearings does a contested divorce action end. The duration varies depending on the complexity of the action, the process of collecting evidence, the number of witnesses and the workload of the court. On average, a contested divorce action may last 5-6 hearings, and this process may be completed at the court of first instance in approximately 1 to 2 years. However, when the legal remedy stages such as appeal and appeal to the Court of Cassation are also taken into account, this period may be much longer.

What Happens After the Witnesses Are Heard in a Contested Divorce Action?

Hearing the witnesses is one of the most important parts of the investigation stage. The answer to the question what happens after the witnesses are heard in a contested divorce action depends on the status of the other evidence in the file. If no other evidence remains to be collected (report of a court-appointed expert, social investigation report, official records to be requested, etc.), the court closes the investigation stage and moves on to the oral proceedings stage.

The Judgment Hearing in a Contested Divorce Action

After the oral proceedings stage has been completed, the judge sets a date for the judgment hearing in the contested divorce action. At this hearing, the judge summarises the entire proceedings, announces the final judgment and states when the reasoned judgment will be written. After the court gives its decision, the reasoned judgment is usually written within 30 days.

Special Situations and Rights in a Contested Divorce Action

Women's Rights in Contested Divorce;

Women's rights in contested divorce are equal to those of men before the law. In the divorce process, women have many rights, such as post-divorce maintenance where the conditions are met, child support if custody of the children is granted to them, pecuniary and non-pecuniary compensation, the allocation of the family home to them and the return of wedding jewellery. In addition, if subjected to violence, a woman may request protective measures (such as a protection order) under Law No. 6284.

If the Husband Does Not Want to Divorce in Contested Divorce

The respondent husband's unwillingness to divorce affects the course of the action but is not on its own sufficient for the action to be dismissed. If the husband does not want to divorce in contested divorce, the court may order divorce irrespective of the husband's wish, provided that the claimant wife proves with lawful evidence that the husband is at fault and that the union of marriage has been fundamentally shaken because of this faulty conduct.

Withdrawing from a Contested Divorce Action

The claimant has the right of withdrawing from a contested divorce action at every stage of the action. This may take the form of a "renunciation of the claim" (feragat) or a "withdrawal of the action" (davayı geri alma). Renunciation does not depend on the respondent's consent, and the claimant cannot file an action again on the same grounds. Withdrawal of the action, on the other hand, depends on the respondent's consent; in this case the action is deemed never to have been filed, and an action may be filed again on the same grounds. In both cases, the court is applied to with a petition withdrawing from a contested divorce action.

Divorce Lawyer Fees and the Importance of Professional Support

The fee for contested divorce varies according to the complexity and duration of the action and the lawyer's work. Divorce lawyer fees are determined by agreement between the lawyer and the client, provided that they are not below the Minimum Fee Tariff published every year by the Union of Turkish Bar Associations. The minimum fees set for 2025 and the advisory tariffs of local bar associations are a point of reference. In addition to the lawyer's fee, there are also court costs such as court fees, costs of service of process and fees of court-appointed experts.

A contested divorce action is an extremely technical process that requires legal knowledge and experience. Critical steps such as preparing the petitions, collecting and submitting evidence lawfully, presenting an effective defence at the hearings and not missing statutory time limits directly affect the fate of the action. A small mistake in this process may lead to losses of rights that cannot be remedied. For this reason, the findings of a divorce lawyer and professional guidance are of vital importance.

Particularly in large cities such as Adana, the parties usually look for a lawyer who is competent in the field. Although there is a search among the public such as "the right divorce lawyer in Adana", it should not be forgotten that what matters is working with an Adana Divorce Lawyer who is experienced in family law, defends the client's rights meticulously and has strong communication skills. The right lawyer may influence the course of the action and help you get through this difficult process with the least damage.