1. Obligation of Common Life in Matrimonial Union and its Place in the Turkish Civil Code

One of the most important obligations forming the foundation of the matrimonial union is the spouses' duty to live together. This obligation, explicitly stated in Article 185 of the Turkish Civil Code ("TCC"), covers not only sharing the same physical environment but also other responsibilities arising from the matrimonial union. The legislator has considered this "obligation of common life" as a fundamental element of marriage and has evaluated the violation of this obligation as a serious breach against the matrimonial union. This forms the basis for the act of abandonment being accepted not merely as a personal disagreement, but as a legal violation that can directly lead to divorce. Therefore, a spouse's violation of the obligation of common life is considered an act contrary to the essence of the matrimonial union and reflects the legislator's aim to protect the matrimonial union.

2. Definition and Legal Nature of the Concept of Abandonment

Abandonment is regulated as a specific ground for divorce in Article 164 of the TCC. According to this article, abandonment is the continuous and voluntary departure of one spouse from the common residence, or their failure to return to the common residence, without a just cause, with the aim of not fulfilling their obligations arising from the matrimonial union. Divorce due to abandonment, unlike general grounds for divorce, is an absolute ground for divorce where the condition of the common life becoming unbearable is not sought. This absolute nature indicates that the legislator deems certain violations of marital duties destructive to the marriage itself; in such a case, a subjective "unbearability" assessment is not required for a divorce decision. While this simplifies the legal process, it increases the burden of objectively proving the act of abandonment and its related conditions. Therefore, when filing a divorce lawsuit due to abandonment, strict adherence to legal conditions is crucial, as the court examines only the existence of the abandonment conditions, not the general state of the marriage.

3. Distinction and Importance of Actual Abandonment and Constructive Abandonment

The concept of abandonment is divided into two main categories: "actual abandonment" and "constructive abandonment." Actual abandonment refers to the situation where one spouse physically and voluntarily leaves the common residence. In contrast, constructive abandonment refers to a situation where one spouse expels the other from the common residence, prevents them from returning, or drives them into a situation where they cannot fulfill their marital obligations. This distinction plays a critical role in determining who has the right to file a divorce lawsuit. In cases of constructive abandonment, it is not the spouse who is actually forced to leave the home, but the spouse who forced the other into this situation, who is considered to have abandoned, and therefore does not have the right to file a divorce lawsuit due to abandonment. This reflects a fundamental legal principle: no one can benefit from their own wrongful act. If one spouse has expelled the other from the home, they cannot file a divorce lawsuit based on this act themselves. The law, in such situations, considers the party who caused the separation as the "abandoning" party, which has important consequences for litigation strategy. If the party physically remaining in the home forces the other to abandon, the right to file a divorce lawsuit due to abandonment passes to the party who was forced to leave the common residence.

4. Essential Conditions for a Divorce Lawsuit Due to Abandonment

4.1. Voluntary and Culpable Abandonment of the Common Residence

The first and most fundamental condition for a divorce lawsuit due to abandonment is that one of the spouses leaves the common residence voluntarily, with the intention of ending the common life, and that this departure is continuous. For this act to be legally considered "abandonment," the abandoning spouse must be at fault. That is, the spouse's departure from the common residence must occur entirely of their own free will, and not due to external reasons or necessities. For example, a spouse who leaves home under threat to life, or a spouse who leaves home for a justified reason such as official duty, conviction, detention, or quarantine, is not considered at fault. Such situations negate the legal nature of the act of abandonment. When evaluating an abandonment claim, courts meticulously examine not only the physical separation but also the reasons behind it and the spouse's intention. This examination is vital to determine whether the abandoning spouse's action genuinely aimed to escape the matrimonial union.

4.2. Abandonment Must Be for the Purpose of Evading Marital Obligations

For the act of abandonment to have legal consequences, the primary purpose of the abandoning spouse's departure from the common residence must be to avoid fulfilling the obligation to live together and other obligations arising from the matrimonial union. This "purpose" element excludes temporary separations or separations for non-marital purposes (e.g., a long business trip, caring for a sick relative, or spouses mutually agreeing to live separately for a period) from the scope of legal abandonment. It must be proven that the spouse acted with the intention of avoiding the responsibilities required by the matrimonial union. This intention is usually inferred from objective behaviors such as the spouse cutting off communication, starting a new life, or not responding to calls to return to common life. The court evaluates all concrete events and the parties' behaviors as a whole to determine this purpose. This can be a significant point of contention in the lawsuit process, as it requires indirect proof of the abandoning spouse's state of mind.

4.3. Abandonment Must Not Be Based on a Just Cause

For a divorce lawsuit due to abandonment to be filed, the abandoning spouse must not have a just cause for leaving the common residence or for not returning despite a warning. The concept of just cause is an important defense mechanism against an abandonment claim. According to Supreme Court precedents, in a divorce lawsuit filed due to abandonment, what matters is not whether the defendant was justified in the initial abandonment, but whether they were justified in not returning home despite the warning, and the burden of proving this just cause lies with the defendant.

Just causes can cover a wide range of situations:

• Threat to life safety: Situations such as attempting to kill the spouse, mistreatment, or violence.
• Health problems: Transmitting a venereal disease to the spouse.
• Unsuitability of living conditions: Forcing the spouse to live with friends, the spouse's personality, economic security, or the family's peace being seriously endangered due to common life (TCC Art. 197).
• Improper warning procedure: The summoned residence not being suitable, the location of the key not being informed, or insufficient travel expenses not being sent.
• Compelling circumstances: Situations beyond the spouse's control, such as illness, military service, conviction, detention, or quarantine.

While a spouse may initially leave home for a just cause (e.g., due to violence), if this just cause ceases to exist and they still do not return home, the act of abandonment may lose its justification, and the abandonment period may start to run from that date. This indicates that courts, when evaluating abandonment cases, examine not only the initial situation but also the continuity of the spouse's failure to return.

4.4. Rule of Continuous Abandonment for at Least Six Months and its Exceptions

For a divorce lawsuit due to abandonment to be filed, the act of abandonment must have lasted for at least 6 consecutive months and still be ongoing. This 6-month period functions as a "waiting period" during which the legislator grants spouses an opportunity to reconcile and re-establish the matrimonial union. If the parties reunite with the aim of continuing the matrimonial union during this period, the 6-month period is interrupted and starts anew. However, Supreme Court precedents consider insincere returns made solely to interrupt the period as an abuse of right and accept that such returns do not interrupt the period. This shows that courts question not only the physical return but also the intention behind it.

There are also certain procedural limitations for filing a divorce lawsuit: a warning cannot be requested before the end of the fourth month following the abandonment. Furthermore, a divorce lawsuit cannot be filed until 2 months have passed after the warning. This timeline reveals that an abandonment lawsuit is a complex and phased process.

4.5. Compliance of the "Return Home" Warning with Procedure and Substance

The "return home" warning is the most critical element of a divorce lawsuit due to abandonment and often determines the success of the lawsuit. The compliance of the warning with procedure and substance is vital for the acceptance of the lawsuit. The warning must be issued by either a judge or a notary upon the request of the abandoned spouse. A warning issued through these authorized bodies gains legal validity and becomes one of the primary pieces of evidence in the lawsuit.

The timing of the warning is strictly determined by law:

• A warning cannot be requested until at least 4 months have passed from the date the act of abandonment occurred. This period is set to provide an opportunity for reconciliation between the spouses.
• After the warning is issued, the abandoning spouse must be given a period of at least 2 months to return to the common residence. According to Supreme Court precedents, warnings giving less than 60 days are deemed invalid. This period is a reasonable time granted for the abandoning spouse to make necessary preparations for return and reconsider their decision.
• A divorce lawsuit cannot be filed until 2 months have passed after the warning. This rule ensures that the warning achieves its purpose and that sufficient time is given to ascertain whether the spouse will actually return.

These strict time rules demonstrate the Turkish legal system's tendency to protect the matrimonial union and grant parties sufficient time for reconciliation. Failure to comply with these rules may lead to the dismissal of the lawsuit.

4.5.1. Suitability of the Summoned Residence (Conditions of Material and Moral Independence)

The residence summoned by the warning must be suitable for the spouse to continue the common life. This suitability is evaluated in terms of both material and moral independence.

• Material Independence: The residence must be furnished, habitable, and allow the spouses to live an independent life. It must offer a separate living space where basic needs such as a common kitchen, bathroom, and toilet are met.
• Moral Independence: The summoned residence should not be a place where the spouses live with their parents or other relatives. The Supreme Court does not consider warnings that effectively make it impossible for the spouse to return (e.g., not informing the location of the key or not sending sufficient travel expenses) as valid. This means that the warning must be sincere and implementable not only in form but also in content.

4.5.2. Criteria for the Warning Being Just and Sincere

The warning must be the product of the abandoned spouse's sincere desire to continue the marriage. The following situations may negate the sincerity of the warning and render it invalid:

• Explicitly stating that the marriage will not work or that the other spouse is not wanted.
• Engaging in speech or behavior contrary to the nature of marriage after the warning (e.g., having another relationship, committing violence, insulting, or threatening).
• Not accepting the spouse into the common residence or preventing their entry.
• It is accepted that the abandoned spouse, at the time of sending the warning, is deemed to have forgiven or condoned the abandoning spouse's previous faults. This is an important strategic decision for spouses wishing to file a divorce lawsuit due to abandonment; because issuing a warning implies a waiver of other grounds for divorce based on previous faults. Therefore, after a warning is issued, a divorce lawsuit cannot be filed by citing the abandoning spouse's previous faults. However, it is possible to file a divorce lawsuit with other claims and requests due to events that occurred after the warning was sent.

4.5.3. Ineffectiveness of the Warning and Legal Consequences of Insincere Returns

If the abandoning spouse does not return to the common residence within the 2-month period despite a properly issued warning, or makes an insincere return, a divorce lawsuit due to abandonment can be filed. Insincere returns are usually aimed at interrupting the period or ensuring the dismissal of the lawsuit, and therefore, they are considered an abuse of right by the court and do not interrupt the abandonment period.

5. Cases Where a Divorce Lawsuit Due to Abandonment Cannot Be Filed

Some situations prevent the filing of a divorce lawsuit due to abandonment, even if spouses separate from the common residence. These situations reinforce the requirement that the abandonment concept be "culpable" and "purposeful":

• Common residence not chosen jointly by the spouses: Leaving a residence that the spouses did not choose together during the matrimonial union is not legally considered abandonment.
• Separation due to compelling reasons: Separations that are beyond the spouse's control or are mandatory, such as official duty, conviction, detention, or quarantine, are not considered abandonment.
• Spouses deciding to live separately by agreement: If spouses have decided to live separately by their own consent or with judicial intervention, a divorce lawsuit due to abandonment cannot be filed. This situation indicates that the separation is not aimed at avoiding marital obligations.
• One spouse refusing to live with the other's relatives: One spouse refusing to live with the other spouse's family or relatives is not considered abandonment. This situation is a reflection of the spouses' right to establish an independent matrimonial union.

These exceptions aim to prevent the abuse of divorce lawsuits based on abandonment and to fairly assess the true reasons for separation.

6. Burden of Proof and Evidentiary Mechanisms in a Divorce Lawsuit Due to Abandonment

In a divorce lawsuit due to abandonment, the burden of proof generally rests with the plaintiff spouse (the abandoned spouse). The plaintiff is obliged to prove, with evidence submitted to the court, that the act of abandonment occurred, that the abandonment period has completed the minimum 6 months stipulated by law, and that the "return home" warning was sent in accordance with the procedure and remained ineffective. However, the burden of proving that the abandoning spouse did not have a just cause for leaving the common residence or for not returning despite the warning lies with the defendant. This means that the defendant must actively prove that their failure to return home despite the warning was based on a just cause. This dual burden of proof significantly affects the dynamics of the lawsuit; while the plaintiff proves the fact of abandonment and the procedure of the warning, the defendant must demonstrate the justification of their own action.

Various types of evidence can be used to prove the fact of abandonment and other conditions in divorce lawsuits due to abandonment:

• Warning Letter Sent Through Notary or Court: This is the most important and indispensable piece of evidence in the lawsuit. The existence, content, and proper notification of the warning form the basis of the lawsuit.
• Witness Testimonies: Witnesses who can confirm that the act of abandonment occurred, that the abandoning spouse did not return, or did not come home despite the warning, can be heard in court. Especially third parties such as neighbors, family members, mutual friends, or apartment managers, if they directly witnessed the act of abandonment, their statements constitute strong evidence.
• Official Records Regarding the Abandoning Spouse's Failure to Return to Common Residence: Residence records or official declarations indicating that the abandoning spouse lives at another address can be used to prove that they did not return to the common residence. The spouse starting to reside in another city or country can also be significant evidence.
• Messages, Emails, and Correspondence: Written communications between spouses can be used to prove that the abandoning spouse refused to return or was in a continuous separation. Especially messages where the spouse explicitly states that they will not return can be presented as evidence to the court.
• Camera and Security Recordings: Security camera recordings showing that the spouse has not entered or exited the common residence for a long time can be strong evidence for proof.
• Discovery of Evidence: Especially in claims of "constructive abandonment," discovery of evidence through the court can be resorted to in order to prove claims such as the abandoned spouse not being admitted home or the residence being unsuitable. This is important to refute or support defenses that may be raised against the abandonment claim.

The court evaluates all these submitted pieces of evidence as a whole to determine whether the act of abandonment actually occurred and whether the other conditions of the lawsuit have been met.

7. Competent and Authorized Court in a Divorce Lawsuit Due to Abandonment

In divorce lawsuits due to abandonment, the Family Court is the competent court. Family Courts are specialized courts established specifically to resolve disputes related to family law. The existence of these courts ensures a more holistic approach that takes into account the sensitivity and complexity of family matters and the interests of the parties, especially children. In places where a Family Court has not been established, these lawsuits are heard by the Civil Court of First Instance as a Family Court. This reinforces the principle that the unique nature of family law requires specialized jurisdiction.

The authorized court is determined according to Article 168 of the Turkish Civil Code and offers certain options to the plaintiff:

• The Family Court of one of the spouses' domicile (residence) is authorized. This rule allows the filing of a lawsuit in the place where one of the parties currently resides.
• The Family Court of the place where the spouses last continuously resided together for more than 6 months before the divorce lawsuit is also authorized. This rule provides convenience for situations where spouses may be geographically separated and takes into account the last common living space of the matrimonial union.

Since there is no absolute jurisdiction rule in divorce cases, the court does not consider a jurisdictional objection ex officio. In other words, if a lawsuit is filed in an unauthorized court, the other party must raise a jurisdictional objection within the prescribed period. Otherwise, the lawsuit may continue to be heard in the unauthorized court. This situation provides flexibility in the judicial process, allowing the case to proceed faster if the parties do not exercise their jurisdictional objections.

8. Compensation and Alimony in a Divorce Lawsuit Due to Abandonment

If a divorce lawsuit due to abandonment is accepted, the spouse who abandoned the home is considered fully at fault. This finding of fault has significant implications for the financial consequences of the lawsuit. According to Supreme Court decisions, alimony for indigence and material-moral compensation cannot be awarded in favor of the spouse who is found to be fully at fault in the events causing the divorce (TCC Art. 174-175). This indicates that the act of abandonment not only leads to the termination of the marriage but also has serious negative consequences on the financial rights of the abandoning spouse. The legislator aims to prevent the party who terminates the marriage through their own culpable act from financially benefiting from this situation. This means that a divorce lawsuit due to abandonment carries a significant financial risk for the abandoning spouse.

9. Does Issuing a Warning Constitute a Waiver of Other Grounds for Divorce?

Another important strategic aspect of a divorce lawsuit due to abandonment is the legal consequences of issuing a "return home" warning. According to Supreme Court decisions, the abandoned spouse, at the time of sending the warning, is deemed to have forgiven or condoned the abandoning spouse's previous faults. This principle stems from the acceptance of the warning as a sincere invitation to continue the matrimonial union. Therefore, after a warning is issued, culpable behaviors of the abandoning spouse that occurred before the warning (e.g., adultery, violence, insult) can no longer be cited as grounds for a divorce lawsuit (Supreme Court 2nd Civil Chamber 2020/2125 E., 2020/3438 K., 29.6.2020). However, this situation does not preclude the filing of a divorce lawsuit with other claims and requests due to new events or culpable behaviors that occurred after the warning was sent. This legal situation requires spouses considering filing a divorce lawsuit due to abandonment to carefully evaluate all existing grounds for divorce and determine the most appropriate strategy. This is because filing an abandonment lawsuit may imply a waiver of other potentially strong grounds for divorce.

10. Conclusion

A divorce lawsuit due to abandonment, regulated as a special and absolute ground for divorce in the Turkish Civil Code, is an important legal recourse resorted to in cases of violation of the fundamental obligation of common life within the matrimonial union. This type of lawsuit stands out from other grounds for divorce as it does not require an investigation into whether the matrimonial union has become unbearable. However, this entails that the conditions for the lawsuit are extremely strict and formalistic. Especially the compliance of the "return home" warning with procedure and substance is vital for the success of the lawsuit; even the slightest procedural error can lead to the dismissal of the lawsuit. This situation reflects the legislator's aim to protect the matrimonial union and to provide the parties with a concrete opportunity for reconciliation.

While Supreme Court precedents and scholarly opinions provide guidance in interpreting the concept and conditions of abandonment, it should be remembered that each concrete case must be meticulously evaluated within its own specific circumstances. Factors such as the existence of just causes, the sincerity of the warning, and the continuity of the abandonment are examined in detail by the courts. The finding that the abandoning spouse is fully at fault if a divorce lawsuit due to abandonment is accepted, and the negative effects of this on alimony and compensation claims, highlight the necessity of a comprehensive legal evaluation before resorting to this course of action. Furthermore, the fact that issuing a warning results in the forgiveness of previous faults is another important point to consider in the strategic planning of the lawsuit. For these reasons, a divorce lawsuit due to abandonment is a complex process requiring legal knowledge and experience, and seeking support from a specialized legal consultant is of great importance.