Is Severe Incompatibility a Ground for Divorce?

Everyday language calls it “severe incompatibility”; under the current Turkish Civil Code it is assessed as irretrievable breakdown of the marital union. TMK Art. 166/1 requires that common life has deteriorated so far that the spouses cannot be expected to continue it. Naming the phrase in a petition is not enough; the underlying events and evidence must be set out in concrete terms.

The word “severe” here does not mean that physical violence is required for divorce. Economic, psychological or trust-related conduct may also affect common life. Not every argument or difference of opinion is automatically a ground for divorce. This article is general legal information; it is not advice for a specific case.

The everyday name of a legal claim and the statutory conditions may not be the same. “We cannot get along” describes a problem; the court needs more information to assess what happened and how it affected common life. Who did what, when, and which conduct occurred must be explained.

The judge applies the law of his or her own motion; using an incorrect legal term therefore does not by itself require dismissal. It cannot be assumed, however, that the judge will independently investigate and complete every fact the parties have not put forward. The account of events, the claims and the preparation of evidence are of fundamental importance.

This article focuses on the legal meaning of the phrase “severe incompatibility” and on how the claim should be particularised. Which conduct may undermine the marital union is assessed separately, together with the gravity, continuity and effect of the events on the relationship.

Physical violence is not the only possibility. Persistent humiliation, threats, deprivation of economic resources, conduct that undermines trust, or serious neglect of family responsibilities may be relied on under the general ground for divorce. The concrete effect and proof of each allegation are assessed.

For example, instead of saying “he or she does not respect me”, one may describe which words were used, where they were spoken and who heard them. An allegation that “he or she does not provide for the family” should likewise be explained by unmet needs, ability to pay and the relevant duties. Legal assessment turns on events rather than labels.

Unemployment, illness or low income should not, by themselves, be treated as culpable conduct. Impossibility and avoiding a duty despite having the means are different. Presenting circumstances outside a person’s control as if they were deliberate neglect may distort the assessment of the file.

Agreement on divorce matters; yet consensual divorce also requires the other conditions in TMK Art. 166/3. At least one year of marriage, free will, the judge hearing both parties in person, and an arrangement found suitable as to financial consequences and the children are required.

If those conditions are not met, the parties’ statement that “there is severe incompatibility” does not replace proof in a contested case. In particular, the fact that consensual divorce is unavailable in a marriage of less than one year does not justify inventing events or witness statements.

In a contested case, the other spouse’s admission does not in every situation bind the judge as to the facts of the divorce. The special rules in TMK Art. 184 are observed. The nature of the case is not determined solely by the heading of the petition.

One spouse may file for divorce alone. The other’s lack of consent does not absolutely prevent divorce; the court examines the conditions of the ground relied on and the evidence. Statements such as “you can never divorce unless he or she signs” are therefore incorrect.

TMK Art. 166/2 regulates the defendant’s right to object where the claimant’s fault is greater. If the objection amounts to an abuse of right and there is no longer a protectable interest in the continuation of the marriage for the defendant and the children, the statutory exception may be considered.

This provision should not be read as meaning that the more at-fault spouse can always divorce, or can never divorce. Fault, objection and the interest to be protected are examined together. Filing a case does not automatically make a person right or wrong.

Events should be written, as far as possible, in chronological order and kept distinct from one another. If the exact date is unknown, an approximate period and the context should be stated. Mixing many different allegations in a single paragraph can make it unclear what is intended to be proved.

For example, if insult at a particular family gathering is alleged, the time of the gathering, the substance of the words used and the direct witnesses may be set out. Likewise, in economic neglect, which expense was unpaid in which period may be shown. Comment should be separated from events actually experienced.

The putting forward of allegations and evidence is subject to procedural rules. An approach of “I will explain it at the hearing if needed” may result in some events or evidence not being submitted in time. The effect of new events arising after the case is filed must also be assessed separately.

Lawfully obtained messages, bank and health records, official reports and witness accounts may be used according to the nature of the event. The fact that a witness is a family member does not by itself prevent them being heard; what matters is which event they know directly and whether their account is reliable.

The existence of a document does not mean that every inference drawn from it is correct. A health record may show a particular attendance without, by itself, establishing the perpetrator or all of the causes. The scope of the evidence and how the items relate to one another should be explained carefully.

Under HMK Art. 189/2, unlawfully obtained evidence cannot be taken into account. Marriage does not confer authority to obtain phone or account passwords without permission. Even if the aim is to preserve evidence, the method used must itself be lawful.

Claims of reconciliation, forgiveness or tolerant acceptance may affect how past events are assessed. Living at the same address does not always mean a genuine reconciliation. Economic necessity, care of children or the impossibility of safe housing are important.

Earlier separation, resumed cohabitation and new events should be shown separately in the file. It then becomes clear whether the claim rests on repetition of the same event, continuing conduct, or a new dispute. If a previous case was filed, the judgment and finality information should also be examined.

In a case based on incompatibility, housing and living measures during the proceedings, the children’s temporary arrangements, maintenance and, where the conditions are met, compensation may arise. Their conditions differ from one another. Custody is not a reward or a penalty for fault between the spouses.

Liquidation of the matrimonial property regime and jewellery claims are not resolved automatically by the divorce judgment. Event, amount and procedure must be assessed for each claim. A general phrase such as “all my rights” in the petition should not be assumed to secure every receivable.

At the preparation stage, it is as important that the events can be described and verified as it is to choose the legal term. If there is violence or a threat, protection applications should be addressed separately; the conclusion of the divorce case should not be awaited.

The principal bases are TMK Arts. 166, 169, 174–175, 182 and 184, and the petition and proof provisions of the HMK.