Separation Case

Separation Case – Izmir Lawyer

The Turkish Civil Code provides an additional option for a spouse entitled to file for divorce, allowing them to also file for separation and request that the parties be allowed to live separately without ending the marriage.  

A separation lawsuit allows for the re-establishment of the marital union within a separation period determined by the court. Article 167 and subsequent articles of the Turkish Civil Code (TMK) define what a separation lawsuit is, its conditions, and its consequences. Let's examine them:; 

Turkish Civil Code (TMK) Article 167"A spouse who has the right to file for divorce may choose to request either a divorce or a separation."‘ 

Authority,

Article 168- In divorce or separation cases, the competent court is the court of the place of residence of one of the spouses or the court of the place where they last resided together for six months prior to the lawsuit.  

Temporary measures

Article 169- When a divorce or separation case is filed, the judge shall, ex officio, take necessary temporary measures during the course of the proceedings, particularly regarding the spouses' housing, livelihood, management of their assets, and the care and protection of the children.  

Divorce or separation

Article 170- If grounds for divorce are proven, the judge will decide on divorce or separation. If the case is solely about separation, a divorce cannot be granted. If the case is about divorce, a separation can only be granted if there is a possibility of the resumption of cohabitation.  

Separation Period

Article 171- A separation can be decided upon for a period of one to three years. This period begins to run from the date the separation decision becomes final.  

End of Separation Period

Article 172- The separation automatically ends when the specified period expires. If cohabitation has not been re-established, either spouse may file for divorce. When determining the consequences of the divorce, the events proven in the initial lawsuit and the circumstances that arose during the separation period are taken into consideration. 

What is the purpose of filing for divorce? 

A separation lawsuit is a legal action taken by spouses who have problems in their marriage but do not want to end it through divorce, requesting a court order for them to live separately for a specified period. A separation lawsuit is a solution for spouses who do not want to divorce but also do not want to live together. The aim of the lawsuit is to give the spouses time to ensure the continuation of the marriage. Although not widely used today, the legislator, aiming to protect the family, has included provisions regarding separation in the Civil Code. 

For how long can a separation decision be made? 

If a separation decree requested by a spouse seeking a divorce is deemed appropriate by the judge, a separation period of one to three years is granted. This period begins upon the finalization of the separation decree. According to Article 171 of the Turkish Civil Code, the separation period is determined as a period ranging from one to three years. The date of finalization of the separation decree indicates the commencement date. Within this scope, the judge will suspend the marriage for a period of at least one year and at most three years, according to their conscience. This period determined by the judge automatically ceases upon its expiration. The ordered separation period cannot be extended, nor can a second separation period be granted. 

If a shared life cannot be re-established despite the termination of the separation decision, either spouse can file for divorce regardless of whether they are at fault. In this divorce case, the events leading to the separation and the circumstances that arose during the separation period will be taken into consideration when deciding on the outcome of the divorce. Since shared life is suspended upon a separation decision, one party leaving the shared residence within the scope of the separation decision does not constitute abandonment. 

Alimony, Custody, and Compensation Issues in Separation Cases 

When a separation case is filed, the judge, on their own initiative, takes the necessary temporary measures during the course of the proceedings, particularly regarding the spouses' housing, livelihood, management of their assets, and the care and protection of the children. 

If a separation is granted at the end of the case, the judge will determine who will have custody of the children, if any, and how the spouse who is not granted custody will interact with the children during the separation period. Furthermore, if a separation is granted, the judge will determine appropriate alimony, taking into account the economic situation of the parties, the needs of the children, and their socio-economic living standards. This type of case, which does not constitute a divorce, does not include provisions for compensation. However, financial difficulties during the separation period... If the other party is the one who will have to pay alimony, that party will be ordered to pay alimony. 

In addition, child support payments for the children are also among the rights. Child support can be requested by the spouse who is granted temporary custody in a separation decree. Child support is the alimony received as a result of the finalization of the divorce decree. There is no child support provision in a separation decree. Therefore, when determining the amount of temporary alimony, the age and number of the children are taken into consideration. The amount and duration of alimony are specified in the separation decree. Alimony ends when the separation decree expires. In a separation decree, the best interests of the children continue to be protected. Primarily, it is decided that custody should be given to the parent living in the best possible conditions for the children. The spouse who receives custody is then required to pay alimony. 

What are the differences between a separation decision and a divorce decision? 

The legal consequences of a separation decision and a divorce decision are entirely different. A divorce decision ends the marital union between the spouses. However, a separation decision temporarily suspends the marital union. Therefore, while spouses cannot inherit from each other after a divorce, their inheritance rights continue in separation cases. Similarly, after a divorce, spouses no longer have a duty of fidelity to each other. In the case of a separation decision, the duty of fidelity continues. Likewise, while a woman retains her own surname after a divorce, she will continue to use her husband's surname after a separation decision. As mentioned earlier, the purpose of a separation case is to provide the parties with the opportunity to re-establish the marital union. This approach, chosen to prevent spouses from destroying their entire relationship and shared life through divorce, aims to allow the parties to reflect on their marriage in a healthier and more rational way. 

Supreme Court Decisions Regarding Separation Cases 

Supreme Court of Appeals, General Assembly of Civil Law, Case No. 2011/3-635, Decision No. 2011/688, Date: 23.11.2011:  ”"In cases of separation, since the marriage legally continues, spouses are obligated to contribute to the expenses of the union in proportion to their means, both through their labor and assets. It has been accepted for years that interim alimony should be awarded to women who have gained the right to live separately; that even if the separated spouse's economic situation is good, a contribution will be made, whether small or large; and that the woman's income only affects the amount of alimony to be awarded. Therefore, ultimately, interim alimony should be awarded in favor of the plaintiff woman..."” 

 Court of Cassation, 2nd Civil Chamber, Case No. 2012/16486 E, Decision No. 2013/2713 K, January 31, 2013.  “If the case concerns separation, a divorce cannot be granted. Even in such a case, the possibility of resuming cohabitation is not considered for a separation decree; it is sufficient that the grounds for divorce have been proven.“ 

Court of Cassation, 2nd Civil Chamber, Case No. 2012/16486 E, Decision No. 2013/2713 K, January 31, 2013.  “If the case concerns separation, a divorce cannot be granted. Even in such a case, the possibility of resuming cohabitation is not considered for a separation decree; it is sufficient that the grounds for divorce have been proven.“ 

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