How Is a Divorce Case Filed

How Is a Divorce Case Filed?

The process of filing a divorce action is a set of formal procedures which are procedurally strict and require specific steps to be followed in order and in full. Taking these steps correctly is critically important, since it ensures that the action is built on a solid foundation from the very beginning.

Determining the Type of Divorce Action (By Mutual Consent or Contested?)

The first answer to the question begins with deciding on the type of divorce. In Turkish law there are two basic types of divorce action:

1. Action for Divorce by Mutual Consent: This is the type of action in which the spouses have reached full agreement on the divorce itself and on all the consequences of the divorce (maintenance, custody, pecuniary and non-pecuniary compensation, division of property, etc.). It is the fastest and least distressing method of divorce.
2. Contested Divorce Action: This is the type of action filed where the spouses cannot agree on the divorce or on any matter related to the divorce (for example custody, the amount of maintenance, the determination of fault). The parties are obliged to prove their allegations with evidence; the process is much longer, more costly and more complex than divorce by mutual consent.

Determining the Court with Subject-Matter and Territorial Jurisdiction in a Divorce Action

Filing the action in the right court is mandatory in terms of procedural economy and the soundness of the action. At this point, the concepts of subject-matter jurisdiction and territorial jurisdiction in Turkish law come into play.

In Which Court Are Divorce Actions Filed? (Court with Subject-Matter Jurisdiction)

In Türkiye, the courts with subject-matter jurisdiction to hear divorce actions are the Family Courts. All disputes arising from family law are heard in the Family Courts, which are specialised in this area. In places where no Family Court has been established, these actions are heard by the Civil Court of First Instance "in its capacity as a Family Court".

Which Court Has Territorial Jurisdiction in Divorce? (TMK Art. 168)

After subject-matter jurisdiction has been determined, the most important step is to identify the court in the correct geographical location. This matter is specifically regulated in Article 168 of the Turkish Civil Code No. 4721.

This article grants the claimant a right of choice. Accordingly, a contested divorce action may be filed in one of the following three places:

1. Court of the Claimant's Domicile: The spouse filing the action may file it with the Family Court of their own domicile (the place where their residence is located).
2. Court of the Respondent's Domicile: The claimant also has the right to file the action with the Family Court of the respondent spouse's domicile.
3. Court of the Place Where the Spouses Last Lived Together for Six Months: The Family Court of the place where the spouses last lived together continuously for six months before the divorce action was filed also has jurisdiction to hear the action.

These rules of jurisdiction apply to contested divorce actions. In actions for divorce by mutual consent, on the other hand, since the parties are in agreement, there is latitude as regards jurisdiction and the action may be filed at any courthouse in Türkiye.

How Is a Divorce Petition Written?

The foundation of a divorce action is the statement of claim. Preparing the petition lawfully and completely is of critical importance for the course of the action. The mandatory elements of a divorce petition are regulated in Article 119 of the Code of Civil Procedure (HMK):

• Name of the Court: (e.g.: To the Honourable Judge of the Adana Family Court on Duty)
• Details of the Parties: The names, surnames, Turkish identity numbers and addresses of the claimant and the respondent.
• Subject of the Action: (e.g.: It consists of a request for divorce on the ground of the fundamental breakdown of the union of marriage.)
• Explanations (Facts): This is the section in which the events that led to the divorce are set out clearly, precisely and in chronological order.
• Legal Grounds: The statutory provisions relied on (TMK Art. 161, Art. 166, etc.).
• Legal Evidence: A list of the evidence that will prove the allegations (list of witnesses, message records, photographs, etc.).
• Conclusion and Relief Sought: This is the section in which what is requested from the court (divorce, custody, maintenance, compensation, etc.) is stated clearly.
• Signature: The wet-ink signature of the claimant or of their representative.

Having the petition prepared by a divorce lawyer experienced in this area is important for preventing losses of rights.

Preparing the Required Documents and Filing the Action

The documents required for divorce are as follows:

• A statement of claim prepared in accordance with procedure (in a sufficient number of copies)
• Photocopies of the identity cards of the claimant and the respondent
• A lawyer's power of attorney, if any
• In a divorce by mutual consent, the protocol for divorce by mutual consent signed by the parties
• In a contested divorce, a list of the evidence supporting the allegations and copies of the available evidence

After these documents have been prepared, the action may be filed physically by applying to the case allocation office (tevzi bürosu) at the courthouse and paying the required court fees and the advance on costs to the court cashier's office.

Filing a Divorce Action via the e-Government Gateway (Through UYAP)

Today it is also possible to file an action without going to the courthouse. Filing a divorce action via the e-Government Gateway (e-Devlet, the state's online public services portal) is carried out not directly through the e-Government Gateway, but through the UYAP (National Judiciary Network Project, Ulusal Yargı Ağı Projesi) Citizen Portal of the Ministry of Justice.

Steps for filing an action through UYAP:

1. The statement of claim and the evidence are prepared in .UDF format with the UYAP Document Editor (UYAP Doküman Editörü) and signed with an e-signature or mobile signature.
2. The UYAP Citizen Portal is accessed with the e-Government Gateway password.
3. The relevant court (Family Court) is selected from the "Filing an Action" (Dava Açılış) menu.
4. The prepared petition and evidence are uploaded to the system.
5. The required fees and costs are paid online.
6. When the procedure is completed, the system assigns a file number and the action has been filed.

Since this process requires technical knowledge, persons considering filing a divorce action without a lawyer are advised to be careful, or to obtain support from a professional, so as not to suffer a loss of rights.

Grounds for Divorce and Special Situations in the Divorce Action Process

The Contested Divorce Action and Its Grounds

Contested divorce is the type of action in which the parties cannot agree on the divorce or its consequences. In these actions, the claimant must rely on one of the special or general grounds for divorce listed in the law and prove it.

Divorce on the Ground of Adultery

Divorce on the ground of adultery is an absolute and special ground for divorce regulated in the Turkish Civil Code. It consists of one of the spouses having sexual relations with a third person while the union of marriage continues. The right to file a divorce action on the ground of adultery lapses 6 months after the spouse who has been deceived learns of the situation and, in any event, 5 years after the act of adultery.

Grounds for Divorce in a Single Hearing

What is popularly known as "divorce in a single hearing" is in fact an action for divorce by mutual consent. The grounds for divorce in a single hearing are that the parties have reached complete agreement on the divorce and all its consequences. When the conditions for divorce by mutual consent (a marriage of at least 1 year, a joint application, a declaration of will before the judge and approval of the protocol by the judge) are met, the action is generally concluded in a single hearing.

The Penalty for Withdrawing from a Divorce Action

There is no penalty for withdrawing from a divorce action. The claimant may renounce the claim (feragat) or withdraw the action (davayı geri alma). However, the legal consequences of these two situations differ:

• Renunciation of the Claim: This is the claimant's complete abandonment of the relief sought. In this case the action is dismissed and an action cannot be filed again on the same grounds.
• Withdrawal of the Action: This is possible with the respondent's express consent. The action is deemed never to have been filed, and the right to file an action again in the future on the same grounds is preserved.

What Happens If I Do Not Attend the Divorce Action?

The consequences of not attending the hearings differ for the claimant and the respondent.

• If the Claimant Does Not Attend: If the claimant, despite being duly summoned, does not attend the hearing and is not represented by a lawyer either, the case file is removed from the list of pending cases where the respondent does not pursue the action either. An action that is not renewed within 3 months is deemed not to have been filed.
• If the Respondent Does Not Attend: If the respondent does not attend the hearing, the action continues in their absence. In this case, the respondent cannot effectively exercise the right of defence and the right to object to the evidence, and adverse consequences may arise for them.

The Rental Agreement in the Event of Divorce

In a rented house used as the family home, whichever spouse the rental agreement is in the name of, the agreement cannot be terminated without the other spouse's consent. The judge may decide who will remain in the home after the divorce and, if necessary, may request that the party to the rental agreement be changed.

The divorce process is an important process that involves many legal details and shapes the future of the parties. In this process, obtaining support from a legal professional experienced in the field, such as an Adana Divorce Lawyer, may help the process to be managed correctly and losses of rights to be prevented. What matters is to work with a professional who has experience in family law, who can communicate properly with the client and who follows the process meticulously.