Under the laws of the Republic of Türkiye, individuals who have entered into a legally valid marriage may dissolve their marriage only on grounds expressly provided by law. In other words, the termination of a marriage may occur solely based on reasons explicitly regulated by legislation. These grounds are set forth in Turkish Civil Code No. 4271. Articles 161–162–163–164–165 and 166 of the Turkish Civil Code regulate and explain the grounds for divorce.
Divorce grounds are categorized according to their nature and legal consequences. Some grounds are considered special grounds for divorce, while others are general grounds. Special grounds for divorce include adultery, attempt on the life of the spouse, cruel treatment, degrading conduct, commission of a crime, mental illness, leading a dishonorable life, and abandonment. The legislator has exhaustively and clearly defined these special grounds.
General grounds for divorce include the breakdown of the marital union, consensual divorce, and separation. If none of the special grounds exist but the continuation of the marriage has become unbearable, a divorce action may be initiated based on general grounds.
The grounds for divorce listed in Turkish Civil Code No. 4271 are exhaustive, and it is not possible to file a divorce action based on any other reason. According to the Code:
- Article 161 – Divorce due to adultery;
- Article 162 – Divorce due to attempt on life, health, or physical integrity cruel or degrading treatment;
- Article 163 – Divorce due to committing a crime or leading a dishonorable life;
- Article 164 – Divorce due to abandonment;
- Article 165 – Divorce due to mental illness;
- Article 166 – Divorce due to the breakdown of the marital union and separation.
It should be emphasized that each ground for divorce has specific legal requirements. Therefore, it is crucial for the party intending to file a divorce action to accurately determine the appropriate legal ground. For example, identifying which actions constitute “degrading conduct” under Article 162 or determining the conditions under which abandonment under Article 164 applies requires a thorough understanding of the legal provisions and their scope.
This article focuses on divorce due to adultery, regulated under Article 161. The conditions under which a divorce action may be filed based on adultery and the requirements for proving adultery are explained below.
Divorce Due to Adultery
Following the establishment of a marital union, spouses assume certain unwritten obligations arising from marriage. These include mutual fidelity, cohabitation, caring for and educating their children, and acting together to maintain a happy family life. Sexual infidelity between spouses is recognized as an absolute ground for divorce under the Turkish Civil Code. Accordingly, the spouse who learns of the adultery must file a divorce action based on adultery within six months from the date of becoming aware of the act.
If a married man or woman engages in sexual relations with a third party, a divorce action may be filed on the grounds of adultery. It is not necessary for the sexual intercourse to be fully consummated; even attempts constitute adultery and are sufficient grounds for divorce. For instance, if a married person is caught in a semi-nude state with another person for the purpose of engaging in sexual intercourse, adultery is deemed to have occurred even if the act was not completed.
Proving sexual intercourse or adultery may not always be possible. In such cases, the existence of events indicating a high probability of adultery is sufficient. For example, a married person spending the night in the same hotel room with a person of the opposite sex, or staying overnight in the same residence with a non-relative of the opposite sex, may be considered evidence of sexual relations.
However, emotional messaging, affectionate conversations, hugging, or even kissing with a person of the opposite sex do not constitute sufficient grounds for divorce due to adultery. Although such conduct is incompatible with marital obligations, it does not meet the legal threshold for adultery. Nevertheless, such behavior may justify filing a divorce action based on Article 166 – the breakdown of the marital union.
The spouse who learns of the adultery must file the lawsuit within six months. Failure to do so results in the loss of the right to file a divorce action based on adultery. Furthermore, if more than five years have elapsed since the act of adultery, no divorce action may be filed on this ground even if the adultery was discovered later. Likewise, if the cheated spouse forgives the adulterous spouse, the right to file a divorce action on this ground is extinguished.
Forgiveness may be expressed explicitly or implied through conduct. For example, going on vacation together after the adultery is considered an act of forgiveness.
Evidence of adultery may include phone records, videos, photographs, and audio recordings. Additionally, hotel records may be requested by the court to establish adultery. Contracting a sexually transmitted disease may also serve as evidence of adultery.
Where is a divorce lawsuit filed due to adultery?
A divorce action based on adultery may be filed before the family court at the place of residence of either spouse or at the place where the spouses last resided together.
Can a lawsuit be filed if adultery is discovered years later?
If less than five years have passed since the adultery and it was discovered recently, a divorce action based on adultery may be filed within six months from the date of discovery.
