The Legal Framework of Divorce Law is Being Redrawn: Landmark Rulings from the Constitutional Court of Türkiye

In recent years, the Constitutional Court of Türkiye (“Constitutional Court”) has rendered a series of landmark decisions in response to judicial review applications [i] that have significantly influenced the fundamental principles of Turkish family and divorce law. These decisions, while not all leading to annulments of the rule in question, reflect a growing constitutional scrutiny over equality, personal rights, and family protection principles. We, in this article, aim to provide an overview of some of the most critical decisions rendered as a result of the judicial review requests concerning matters ranging from the annulment of the rule obliging women to adopt their husbands’ surname upon marriage and the invalidation of the “de facto separation” rule, to the Constitutional Court’s upholding of the limitation period for adultery-based divorce and its rulings on compensation provisions.

Annulment of the Rule Requiring Women to Assume Their Husband’s Surname

Article 187 of the Turkish Civil Code (“Civil Code”) [ii] used to mandate women to take their husband’s surname after marriage. Upon an objection filed by the 8th Family Court of Istanbul, the Constitutional Court held that this rule violated the constitutional principle of equality (Article 10 of the Constitution), finding no objective justification for different treatment between men and women. Accordingly, Constitutional Court decided to annul the provision with its decision numbered E. 2022/155, K. 2023/38, dated 22 February 2023 , which shall enter into force nine months after its publication in the Official Gazette (i.e., on 28 January 2024).

However, although the Constitutional Court decided that the decision would enter into force on 28 January 2024 to prevent a gap in law due to the annulment of the relevant provision, the legal gap still remains: Today, it is still legislatively mandatory for women to adopt their husbands’ surnames due to this gap and those who want to retain their maiden names must still file a lawsuit. This ongoing gap undermines the equality intended to be secured by the ruling and highlights the need for legislative action to codify the right to retain women’s surname without judicial intervention.

Annulment of the De Facto Separation Rule

Another recent development concerns the de facto separation rule set out in the Civil Code. Accordingly, if the divorce lawsuit is dismissed and the spouses could not establish a common life within three years as of the decision becoming final, a divorce used to be granted upon the request of either spouse based upon the Article 166/4 of the Civil Code. The 18th Family Court of Ankara filed an objection by arguing that this restriction violated fundamental rights and right to private life. The Constitutional Court concluded that the three-year period constituted a disproportionate restriction under Articles 13 (Limitation of fundamental rights and freedoms) and 20 (Privacy of personal life) of the Constitution and annulled the provision in question with its decision numbered E. 2023/116, K. 2024/56, dated 22 February 2024 [iii] to become effective nine months after its publication in the Official Gazette (i.e., on 19 July 2025).

Yet, before the annulment entered into force, the legislature amended the said article with the Law numbered 7532, and reduced it to one year. This amendment effectively addressed the constitutional concerns by preventing unnecessary prolongation of proceedings and protecting the right to a fair and timely trial.

Continuation of Marital Duty of Fidelity during Divorce Proceedings Found to be Constitutional

Article 185/3 of the Civil Code mandates spouses to remain faithful to each other until divorce becomes final. The 15th Family Court of Izmir filed an objection regarding the constitutionality of this obligation, on grounds that it violates the right to private life (Article 17 of the Constitution). However, the Constitutional Court upheld the provision with its decision numbered E. 2023/42, K. 2024/114, dated 30 May 2024, by concluding that this obligation serves a legitimate aim for protecting the family as an institution and does not violate the principle of proportionality.

While we understand that the Constitutional Court aims to protect the institution of the family, critics argue that lengthy divorce proceedings make this rule impractical and unfair, as it legally confines the spouses to a marriage that may have emotionally ended years ago and violates their right to respect for their private lives by imposing obligations on them.

The Five-Year Limitation for Adultery-Based Divorce Upheld

Article 161/2 of the Civil Code dictates that if one spouse commits adultery, the other spouse is obligated to file a lawsuit within six months as of learning the adultery, which is an absolute ground for divorce, and in any case, within five years as of the act of adultery. Therefore, the rule sets a statute of limitations in terms of the divorce requests tied to adultery.

The 18th Family Court of Ankara filed an objection, by arguing that the rule violated Articles 20 (Privacy of private life), 36 (Freedom to seek rights), and 40 (Protection of fundamental rights and freedoms) of the Constitution. The Constitutional Court unanimously upheld the rule with its decision numbered E. 2024/83, K. 2024/227, dated 25 December 2024 [iv] concluding that the statute of limitation prevents the at-fault spouse from facing an absolute threat of divorce indefinitely throughout the marriage, whereas alternative relative grounds for filing a divorce claim are preserved for the other spouse.

Accordingly, the Constitutional Court emphasized that the spouse, who discovers act of adultery after five years may still pursue divorce under other possible grounds (i.e., irretrievable breakdown of the marriage), and judicial recourse remains available.

Considering a Shift from the Fault Principle to Independence from Fault?

The Turkish legal system recognizes the principle of fault in divorce cases. However, due to the negative practical consequences of the principle of fault, many countries have either abandoned it or limited its application.  In Türkiye, for example, where court proceedings tend to be quite lengthy, the abolition of the principle of fault and the reform of the divorce law are highly debated topics among scholars.

Although the term “fault” appears exactly 31 times in the Civil Code (10 of which ^[v] are under the provisions of divorce), it is not explicitly defined in the Civil Code ^[vi]. As stated in the doctrine, it is also impossible to derive a consistent principle regarding what constitutes fault when examining court rulings. ^[vii]

It is possible to attribute fault to one of the parties in terms of absolute grounds for divorce [viii]. However, the fact that fault analysis is also carried out with regard to the relative grounds for divorce based on the fundamental breakdown of the marriage as provided for under Article 166 of the Civil Code is an indication that our legal system continues to govern the principle of fault and that the principle of fundamental breakdown of the marriage is not applied. ^[ix] Thus, the doctrine states that, in divorce lawsuits, if one party proves that the marriage has become intolerable without attributing fault to the other party, the judge is not obliged to ex officio investigate the parties’ fault. ^[x]

However, the Court of Appeals precedents indicate that a spouse’s divorce lawsuit filed under Article 166 of the Civil Code, which does not attribute any fault to the other spouse, should be dismissed by citing the principle ^[xi] that no one can claim benefits or rights based on their own fault. ^[xii] In other words, even in cases of relative grounds for divorce where fault is not required, the Court of Appeals has ruled that the more at-fault party’s right to divorce is barred.

This approach is highly criticized by the scholars and practitioners. The prevailing opinion (which is also supported by the former President of the Court of Appeals 2^nd Civil Chamber, Ömer Faruk Gençcan [xiii]) indicates that it is meaningless to maintain a marriage that has been shaken to its foundations based on the principle of fault; therefore, the concept of fault should not be effective in divorce proceedings and should only be considered effective in terms of alimony or material or moral compensation entitlements resulting from divorce. In other words, even if the plaintiff spouse is seriously at fault, the judge must decide on divorce if there is no longer any benefit worth protecting.

A solution introduced in practice is to finalize the lawsuit in terms of divorce when the parties have a mutual consensus on divorce and to ensure that the consequences of divorce and financial obligations are examined separately. Although the Court of Appeals concluded that the examination of divorce and its consequences are independent of each other; there may still be a need for fundamental reform in Turkish law in terms of the fault principle. ^[xiv]

Considering Mandatory Mediation in Family Law Disputes?

The Ministry of Justice is revisiting a proposal to introduce mandatory mediation for family law disputes, as confirmed by the Minister of Justice, Yılmaz Tunç [xv], in August 2025. While mediation could be beneficial in exceptional cases such as uncontested divorces, it raises serious concerns in cases involving violence or power imbalances. Applications for protective measures under Law numbered 6284 on the Protection of the Family and the Prevention of Violence against Women [xvi] have increased forty-fold in ten years [xvii], underscoring the prevalence of domestic violence.

Without judicial oversight, mandatory mediation could pressure victims into waiving their rights or reconciling under coercion. While the intention to reduce court workload is understandable, effective reform must ensure safety and equality. Existing legal mechanisms, such as attorney-drafted agreements under Article 35/A of the Attorneyship Law, already allow for quick and amicable divorces without undermining legal protection.

Conclusion

The Constitutional Court’s recent jurisprudence demonstrates its growing role in balancing state interests and individual rights in family law. While certain rulings, particularly those on gender equality, represent significant progress, others reveal persistent gaps between legal ideals and practical outcomes.

Meaningful reform should focus on transitioning from a fault-based to a no-fault divorce system and addressing the systemic causes of delay and inequality. Any move towards mandatory mediation must also safeguard victims and ensure compatibility with Türkiye’s social realities and international obligations. Only through such holistic reform can family and divorce law align with constitutional and human rights principles.

[i] The Constitutional Court exercises its authority of constitutional review through two principal procedures: (i) the action for annulment (iptal davası) and the objection procedure (itiraz yolu). The former constitutes an abstract constitutional review of norms (soyut norm denetimi), whereas the latter involves a concrete constitutional review of norms (somut norm denetimi). The essential distinction between these two mechanisms lies in the procedure of the review: in the objection procedure, the constitutionality of the rule in question is reviewed through a pending lawsuit.

[ii] Published in the Official Gazetted dated 8 December 2001 and numbered 24607.

[iii] Published in the Official Gazette dated 19 April 2024 and numbered 32522.

[iv] Published in the Official Gazette dated 18 March 2025 and numbered 32845.

[v] Ministry of Family and Social Policies of the Republic of Türkiye. “Türkiye Divorce Reasons Research” TBNA 2014, p. 25, Access: https://www.aile.gov.tr/uploads/athgm/uploads/pages/arastirmalar/tbna2014-kitap.pdf  (Access Date: 05.10.2025).

[vi] Articles 166/2, 174/1, 175, 181, 236/2 and 252/1 of the Civil Code.

[vii] Didin, Dilara Buket. “Fault: An Assessment in the Context of Turkish Divorce Law.” BUHFD, Volume 19, Issue: 218, 2024, p. 421.

[viii] Adultery – Article 161 of the Civil Code, Attempted murder or cruel or humiliating treatment – Article 162 of the Civil Code, Committing a crime and leading a disgraceful life – Article 163 of the Civil Code, Abandonment – Article 164 of the Civil Code, Mental illness – Article 165 of the Civil Code.

[ix] Ormancı, Pınar Altınok. “The Implications of the Revision of French Divorce Law: Evaluations for a Possible Revision of Turkish Divorce Law.” Ankara University Law Faculty Journal, 71 (4) 2022, p. 1440.

[x] Velidedeoğlu, Hıfzı Veldet. Turkish Civil Law, Volume II Family Law. Nurgök Printing House, 1960, p. 185.

[xi] Nemo auditur propriam turpitudinem allegans.

[xii] Court of Appeals Assembly of Civil Chambers, E. 2022/1268, K. 2023/1189, 11/29/2023; Similar: Court of Appeals 2. Civil Camber, E. 2023/2966, K. 2023/6229, 14.12.2023.

[xiii] Ministry of Family and Social Policies of the Republic of Türkiye. “Türkiye Divorce Reasons Research” TBNA 2014, p. 35, Access: https://www.aile.gov.tr/uploads/athgm/uploads/pages/arastirmalar/tbna2014-kitap.pdf (Access Date: 05.10.2025).

[xiv] Court of Appeals Assembly of Civil Chambers, E. 2020/97, K. 2021/241, 11.03.2021; Similar: Court of Appeals Assembly of Civil Chambers, E. 2020/175, K. 2021/202, 04.03.2021; Court of Appeals Assembly of Civil Chambers, 2020/303, K. 2021/242, 11.03.2021.

[xv] “Minister of Justice Tunç spoke about the family mediation system” (Acces: https://www.adalet.gov.tr/adalet-bakani-tunc-aile-arabuluculuk-sistemine-iliskin-konustu) (Access Date: 24.10.2025).

[xvi] Published in the Official Gazetted dated 20 March 2012 and numbered 28239.

[xvii] Turkish Ministry of Justice, Statistics on the Number of Cases Subject to Protection Orders Issued and Cases Subject to Decisions Pursuant to Law No. 6284 (2006-2016), Access: https://evicisiddet.adalet.gov.tr/dosya/up/icerik/6284_adli_sicil_istatistik.pdf (Access Date: 10.05.2025).