DIVORCE LITIGATION: LEGAL GROUNDS, BURDEN OF PROOF, AND STRATEGIC ANALYSIS IN LIGHT OF COURT OF CASSATION PRACTICE
I. THE LEGAL NATURE AND SYSTEM OF DIVORCE
Divorce is not a simple legal act that produces results through the parties' will; it is a type of action that establishes a constitutive new right through a court decision and eliminates the status of marriage. In this respect, a divorce judgment not only terminates the existing legal situation; it also creates a broad sphere of effect extending from the parties' property relations to their personal status.
The termination of marriage is not a matter left to the mutual consent of the parties. The Turkish legal system does not regulate divorce as an act based on free expression of will; rather, it is organized as a judicial review process dependent on the existence of specific grounds provided by law. Within this framework, the judge evaluates not only the parties' statements regarding divorce; but also whether the alleged facts legally constitute grounds for divorce and whether these facts have been proven.
This structure distinguishes divorce litigation from classical private law disputes. This is because the parties' freedom of disposition is limited here and the litigation has the character of an examination bearing on public policy. Indeed, in divorce cases:
The judge may conduct ex officio investigation to reach the material truth without being bound by the evidence presented by the parties,
The admission of the parties alone is not considered binding; the existence of grounds for divorce is evaluated separately,
The judge is given broad discretion in evaluating evidence, and the effect of events on the marital union is analyzed according to the characteristics of the specific case.
For this reason, divorce cases cannot be technically reduced to merely a request for "termination of marriage." What is truly determinative is: placing the alleged facts in the correct legal category, demonstrating the effect of these facts on the marital union, and systematically establishing the allocation of fault.
In conclusion, divorce litigation is not merely a formal declaration of will; it is a field of litigation requiring high technical intensity, in which legal characterization, burden of proof, and the judge's discretionary authority are intertwined.
II. CLASSIFICATION OF GROUNDS FOR DIVORCE
1. The Distinction Between General and Special Grounds
The Turkish Civil Code organizes grounds for divorce in a systematic approach under two fundamental categories. This distinction is not merely a theoretical classification; it produces direct consequences in terms of burden of proof, the manner of the judge's evaluation, and the strategic structure of the case.
A. General Ground for Divorce (TCC Art. 166)
The fundamental breakdown of the marital union is the ground with the broadest field of application in divorce law. This provision is not limited by a limited number of facts determined by the legislator; rather, it is drafted in a manner that can be interpreted broadly, taking into account the dynamic nature of the marital relationship.
Within this scope, any behavior that undermines the marital union can be evaluated within the framework of the general ground. In practice, particularly:
persistent conflict and incompatibility,
demeaning and hurtful statements directed at the spouse,
physical or psychological violence,
emotional detachment and indifference,
conduct that violates the duty of fidelity
are frequently invoked under this heading.
However, the most critical aspect of this ground is that it is relative in nature. In other words, the mere existence of certain events is not sufficient for a divorce judgment to be rendered. The effect of these events:
on the marital union,
whether they have eliminated the possibility of continuing common life for the parties
must be separately demonstrated in the specific case.
Therefore, success under TCC Art. 166 depends not on the number of facts, but on proving to what extent these facts have made the marital union "unbearable."
B. Special Grounds for Divorce (TCC Art. 161-165)
In contrast to the general ground, special grounds for divorce are organized in the law as limited and specific headings. These grounds are:
Adultery (Art. 161)
Attempt on life, cruel or grossly insulting conduct (Art. 162)
Commission of a crime and disreputable conduct (Art. 163)
Abandonment (Art. 164)
Mental illness (Art. 165)
as enumerated.
A significant portion of the grounds in this category are of the nature of absolute grounds for divorce. The practical consequence of this is as follows:
When the existence of the relevant act is proven, there is no need for a separate evaluation of whether the marital union has been undermined,
Once the judge establishes that this ground has been satisfied, the judge is obligated to render a divorce judgment.
In this respect, special grounds for divorce create a narrower but sharper effect in terms of burden of proof and consequence.
However, the standard of proof differs for each special ground, and in particular for grounds such as abandonment and mental illness, strict compliance with the formal requirements prescribed by law is mandatory.
Concluding Evaluation
The distinction between general and special grounds for divorce is not merely a theoretical classification; it is a choice that determines the fate of the case. Reliance on an incorrect ground can lead to dismissal of the case even if the facts are strong. Therefore, the correct approach in practice is:
to first investigate special grounds according to the nature of the specific case,
where possible, to construct multiple and alternative legal grounds,
to develop a separate proof strategy for each ground.
In divorce cases, success depends not on the existence of facts, but on placing these facts in the correct legal category.
III. GROUNDS FOR DIVORCE IN COURT OF CASSATION PRACTICE
1. Adultery (TCC Art. 161)
Adultery, as regulated in Article 161 of the Turkish Civil Code, is an absolute ground for divorce. When adultery is proven, there is no further investigation into whether the marital union has been undermined; the judge directly renders a divorce judgment based on this ground. Indeed, in the decision of the Court of Cassation, Second Civil Chamber, numbered 2019/6633 E., 2020/443 K., it was explicitly stated that when adultery is proven, the general ground for divorce cannot be further invoked.
The most important characteristic of adultery in practice is that it is often not directly proven. For this reason, the Court of Cassation accepts proof of adultery through circumstantial evidence. Direct proof of sexual intercourse is not required; strong and mutually corroborating facts sufficient to form the judge's conviction are sufficient. Circumstances such as staying at the same hotel, spending the night with a person of the opposite sex in a shared residence, living together with another person, or having a child from an extramarital relationship create strong presumptions of adultery.
On the other hand, the Court of Cassation does not accept every breach of fidelity as adultery. Flirtation, messaging, or telephone conversations alone do not constitute adultery. Such conduct is evaluated only within the scope of conduct undermining trust. Indeed, in the decision of the Court of Cassation, Second Civil Chamber, numbered 2016/1282 E., 2017/7819 K., it was explicitly stated that telephone conversations alone are not sufficient for adultery.
In a recent decision of the Court of Cassation, Second Civil Chamber, 2024/4091 E., 2025/2705 K., it was emphasized that the mere presence of one person in the home is not sufficient in itself to prove adultery; strong and definitive circumstantial evidence is required. This decision clearly demonstrates that allegations of adultery must be proven with a body of strong facts, not with suspicion.
Another critical issue in adultery cases is the statute of limitations. According to TCC Art. 161/2:
Within six months from learning of it,
In any case, within five years from the act.
However, if adultery is an ongoing relationship, the period begins from the last act. The Court of Cassation, Second Civil Chamber, has explicitly accepted this in its settled decisions.
Furthermore, if adultery is forgiven, the right to sue is extinguished. Forgiveness may be manifested through:
continuing to live together,
reconciliation,
continuing ordinary marital life.
The decisions of the Court of Cassation, Second Civil Chamber, numbered 2015/24035 Esas, 2017/3573 Karar and dated 30/03/2017, the Court of Cassation, Second Civil Chamber, numbered 2014/19827 Esas, 2015/4292 Karar and dated 11/03/2015, and the Court of Cassation, Second Civil Chamber, numbered 2016/13840 Esas, 2017/14821 Karar and dated 19/12/2017 are to this effect.
There is also an important procedural limitation: the judge is bound by the parties' claims. If the plaintiff has not relied on the ground of adultery, the court cannot render a decision based on this ground of its own motion. The Court of Cassation, Second Civil Chamber, has considered violation of this principle as grounds for reversal.
Adultery affects not only the outcome of divorce but also the consequences regarding compensation and property regime.
Regarding moral damages, the Court of Cassation's Grand Chamber considers the act of adultery as an infringement of personality rights.
In the property regime, TCC Art. 236/2 applies only if the divorce judgment is based on the ground of adultery.
Finally, if adultery coexists with violent conduct by the other party, the allocation of fault is evaluated separately. In its 2017/4021 decision, the Court of Cassation, Second Civil Chamber, accepted that the parties could be considered equally at fault and that in this case no compensation could be awarded.
CONCLUSION
A divorce case based on adultery is a strong but technically sensitive type of case.
For success:
facts must be presented not individually but as a whole,
a strong chain of circumstantial evidence must be established,
the statute of limitations and forgiveness must be carefully evaluated,
the case should, where possible, be based on both special and general grounds.
An adultery case is won not with allegations, but with a coherent, strong, and logically complete evidentiary structure.
2. Attempt on Life, Cruel or Grossly Insulting Conduct (TCC Art. 162)
Attempt on life, cruel treatment, and grossly insulting conduct as regulated in Article 162 of the Turkish Civil Code are one of the absolute grounds for divorce. In this context, when one spouse engages in conduct bearing intent to kill the other, seriously undermines the other's physical or psychological integrity, or engages in grave insults and humiliation directed at the other's personality, proof of this act alone is sufficient for a divorce judgment; there is no separate investigation into whether the marital union has been undermined.
In Court of Cassation practice, attempt on life is evaluated as acts bearing intent to kill, driving to suicide, or conscious conduct that would endanger life, while cruel treatment encompasses beating, systematic violence, confinement, deprivation of food, or grave physical and psychological attacks that undermine human dignity. Grossly insulting conduct is accepted as grave insults and humiliating acts directed at the spouse's personality values and intended to demean in public.
Indeed, in a Court of Cassation, Second Civil Chamber decision, it was accepted that systematic and grave insulting statements directed at the spouse should be evaluated within the scope of grossly insulting conduct. On the other hand, in another Court of Cassation, Second Civil Chamber decision, it was emphasized that not every insult falls within this scope; the conduct must necessarily be of grave nature. In the same direction, in cases where continuous physical violence, cursing, and damage to property occur together, the Court of Cassation's settled decisions accept that the conditions of TCC Art. 162 are satisfied. In cases based on this ground, the same statute of limitations as in adultery cases applies; the suit must be brought within six months of learning of the act and in any case within five years, and it must not be overlooked that the right to sue is extinguished if forgiveness occurs.
In conclusion, since acts within the scope of TCC Art. 162 are accepted as being of such gravity as to directly terminate the marital union, when these acts are demonstrated with concrete and strong evidence, a divorce judgment becomes inevitable.
3. Commission of a Crime and Disreputable Conduct (TCC Art. 163)
Commission of a crime and disreputable conduct as regulated in Article 163 of the Turkish Civil Code is a special but relative ground for divorce. In this context, when one spouse commits a crime of a nature that brings disrepute in the eyes of society or adopts a continuous, morally and socially unacceptable way of life, and if continuation of common life has become unbearable for the other spouse, a divorce judgment may be rendered.
This ground, unlike adultery and TCC Art. 162, is not absolute; that is, the mere existence of the act is not sufficient, and it must also be separately demonstrated that this act has made the marital union unbearable. In Court of Cassation practice, crimes bringing disrepute are accepted as acts that undermine a person's social reputation, such as theft, fraud, forgery, and sexual crimes; while a conviction in criminal court is not considered mandatory, it is required that the commission of the act be established by the family court with sufficient evidence.
Disreputable conduct, rather than a single act, refers to a way of life showing continuity; this ground arises when gambling, drug trafficking, prostitution, a continuous unfaithful way of life, or similar conduct undermining respectability in society shows continuity. Indeed, the continuation of these acts during the marriage and making common life unbearable for the plaintiff spouse is the fundamental condition. Unlike other special grounds, no statute of limitations is provided for this ground; the suit may be brought at any time. However, the fact that the spouse has long accepted this situation or continued to live together may be interpreted as meaning that common life is no longer unbearable, leading to dismissal of the case.
In conclusion, in divorce cases brought under TCC Art. 163, what is determinative is not merely the existence of the crime or conduct, but demonstrating through the specific case that this act has made the marital union objectively unsustainable.
4. Abandonment (TCC Art. 164)
Abandonment as regulated in Article 164 of the Turkish Civil Code is one of the special and absolute grounds for divorce; however, unlike other special grounds, it is subject to strict formal requirements, and cases brought without strict compliance with these requirements are directly dismissed in practice.
Accordingly, when one spouse abandons the common residence with the intention of not fulfilling the obligations arising from the marital union or does not return to the common residence without justifiable cause, this separation must continue uninterrupted for at least six months, and despite a warning made through a judge or notary, the spouse must not return within two months. Furthermore, a spouse who forced the other to abandon the residence or prevented the other's return is also legally considered to have "abandoned."
The most critical aspect of the abandonment ground in practice is that it is not merely the existence of factual separation; this separation must be intentional, unjustified, and of a continuous nature. Indeed, separation from the residence for justifiable reasons such as military service, illness, imprisonment, threat to personal safety, or a restraining order does not constitute abandonment. Similarly, spouses living separately in fact while living in the same house does not constitute legal abandonment. For this reason, in Court of Cassation practice, a distinction is made between "true abandonment" and "abandonment resulting from coercive conduct"; in particular, when the other spouse prevents return to the residence, the abandonment act is attributed to that spouse.
The warning process is determinative in divorce cases based on abandonment. The warning may be given after the abandonment has continued for at least four months, and the warning clearly informs the spouse that return to the common residence is required within two months. The suit cannot be brought before this period expires. Furthermore, the residence indicated in the warning must be actually available, habitable, and of an independent nature; otherwise, the warning is considered invalid. In particular, in Court of Cassation decisions, it is accepted that if the residence to which the spouse is invited is a place lived in with third parties and lacks independence, the warning will not produce legal effect.
An important consequence of this ground is as follows: the spouse sending the abandonment warning may be considered to have forgiven previous events, and therefore may be limited in making claims for damages based on fault. For this reason, when bringing a suit based on the ground of abandonment, not only formal requirements but also the overall strategy of the case must be carefully constructed. In conclusion, a divorce case based on abandonment is a type of case dependent on the correct application of procedural requirements rather than material facts, and the absence of any of these requirements leads to dismissal of the case.
5. Mental Illness (TCC Art. 165)
Mental illness as regulated in Article 165 of the Turkish Civil Code is one of the special grounds for divorce, but unlike other special grounds, it requires the simultaneous fulfillment of certain objective conditions, making it a technical ground for divorce. In this context, the mere fact that one spouse is mentally ill is not sufficient; it must be demonstrated that the illness has made common life unbearable for the other spouse, and furthermore, it must be clearly established through an official health board report that recovery from the illness is impossible.
Indeed, in the decision of the Court of Cassation, Second Civil Chamber, dated 31.03.2008, numbered 2007/6730 Esas, 2008/4453 Karar, it was explicitly stated that ordinary medical documents regarding the existence of the illness are not sufficient, and both the nature of the illness and the possibility of recovery must necessarily be evaluated through an official health board report. In the same direction, in the decision of the Court of Cassation, Second Civil Chamber, dated 31.05.2018, numbered 2018/3075 Esas, 2018/7120 Karar, it was emphasized that if the report obtained does not contain a clear finding regarding whether the illness can be cured, a judgment cannot be rendered, and in this case, a judgment rendered with incomplete examination will be reversed. Furthermore, not only the existence of the illness but also that this illness has made the marital union unbearable must be separately proven; indeed, in the decision of the Court of Cassation, Second Civil Chamber, dated 04.04.2016, numbered 2016/3039 Esas, 2016/6752 Karar, it was accepted that if the element of unbearability is not demonstrated with concrete evidence, the case must be dismissed.
In cases based on this ground, the right to sue is granted only to the non-mentally ill spouse, and the illness must arise after the marital union is established; otherwise, the matter is evaluated within the scope of annulment of marriage rather than divorce. In conclusion, divorce cases based on mental illness are, unlike other grounds for divorce, entirely based on official health board report, the element of unbearability, and concrete proof, and the absence of any of these elements leads to dismissal of the case.
IV. CONSENSUAL DIVORCE: NOT A FORMALITY, BUT A SUPERVISED PROCESS (TCC Art. 166/3)
Although consensual divorce appears to be a process based on the mutual will of the parties, it is not an area left entirely to their discretion; rather, it is a type of litigation conducted under the active supervision of the judge, involving both formal and substantive examination. Pursuant to Article 166/3 of the Turkish Civil Code, to divorce in this manner, the marriage must have lasted at least one year, the parties must reach a clear and definite agreement on the divorce and its consequences, and most importantly, this will must be expressed in person before the judge. The mere signing of a protocol by the parties is not sufficient; the judge cannot render a divorce judgment unless, after hearing the parties at the hearing, the judge is convinced that their will has been freely formed.
The determining element in this process is the divorce protocol prepared by the parties. However, this protocol cannot be evaluated like an ordinary contract. The judge does not merely examine the protocol formally; the judge also supervises its content. In particular, regarding custody of children, maintenance arrangements, and compensation provisions, if the judge finds a violation of public policy or fairness, the judge is not obligated to accept the protocol as is; the judge may request necessary modifications or directly reject it. In this respect, consensual divorce is not an area where party will is unlimited; it is a settlement process limited by the protective mechanisms of law.
Therefore, consensual divorce is not a simple procedure resulting from merely presenting the will "we want to divorce" to the court. The parties must reach a conscious, clear, and balanced agreement on both the will to divorce and all financial and personal consequences of the divorce. Otherwise, the case is either dismissed or transforms into contested divorce proceedings. For this reason, although consensual divorce appears to be a quick solution, in essence it is a process that, if not properly prepared, contains serious legal risks and requires care and technical knowledge.
V. CONCLUSION: DIVORCE LITIGATION IS A MATTER OF LEGAL TECHNIQUE AND STRATEGY
Although divorce cases appear on the surface to be disputes between parties over personal matters brought to court, in reality the outcome of these cases is determined not by the weight of the events experienced, but by how these events are legally positioned and how they are proven. The same fact, when properly placed in the correct legal ground, can lead to winning the case, while when presented with an incorrect ground or incomplete structure, it can become completely ineffective.
At this point, there are three fundamental elements that are determinative:
Placing facts in the correct legal category (TCC Art. 161–165 or Art. 166),
Presenting evidence not individually but within a system that complements each other,
Conducting the case from beginning to end with a consistent strategy.
When the ground-based divorce system of the Turkish Civil Code and the settled decisions of the Court of Cassation are considered together, what is clear is this: The court does not accept the events as the parties describe them; the court supervises whether these events legally constitute grounds for divorce and their probative force. For this reason, a divorce case is not a simple process of "narrating events"; it is a process of legal characterization and proof management.
The most common errors made in practice are:
Relying on TCC Art. 166 instead of adultery or vice versa, incorrect choice of ground,
Supporting strong facts with weak evidence,
Not invoking multiple grounds,
Failure to systematically establish the allocation of fault,
Disregarding procedural requirements (statute of limitations, warning, protocol, etc.).
These errors often lead to even the party in the right losing the case. Indeed, in Court of Cassation practice, reversal decisions rendered due to incomplete examination, incorrect legal characterization, or insufficient proof clearly demonstrate this reality.
In particular:
When a chain of circumstantial evidence cannot be established in adultery cases,
When the allocation of fault cannot be clearly demonstrated in TCC Art. 166 cases,
When the warning process is not properly followed in abandonment cases,
When the protocol is incompletely or imbalancedly prepared in consensual divorce, the case is either dismissed or the expected legal consequences are not obtained.
For this reason, success in divorce cases depends not on the truth of what happened, but on how these events are translated into legal language. Evidence must not be presented randomly; it must be structured in a manner that is interconnected and leads the judge to a single conclusion.
In conclusion, a divorce case:
is not an "emotional case,"
is not an "event narration case,"
is clearly a matter of legal structure and strategy.
An incorrect ground, incomplete evidence, or weak structure renders even the strongest facts worthless. Conversely, the correct ground, a strong chain of evidence, and systematic presentation make it possible to reach a conclusion even in the most complex files.
For this reason, in divorce litigation, the essential question is not what happened, but how that which happened is legally constructed.
NOTE:
In this context, given the technical and multi-layered nature of divorce cases, it is clear that even the smallest error in procedure and substance can lead to serious loss of rights. Therefore, in order to correctly determine rights, effectively present evidence, and conduct the process in accordance with law, professional legal support must be obtained from the beginning of the process.
Att. Kevser ÖZTÜRK