Constitutionality Review

Contested Provision

The contested provision prescribes that in the event of the dismissal of a divorce proceeding on any ground, and should a period of three years elapse from the date on which the dismissal decision becomes final without the re-establishment of marital cohabitation for any reason, the marital union shall be deemed to have suffered irreparable harm. Consequently, a decree of divorce shall be issued upon the petition of either spouse.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional on the grounds that the prescribed temporal requirement imposed an unjust restriction by subjecting individuals to prolonged delays in obtaining a divorce, thereby undermining the constitutional safeguard of inalienable and inviolable fundamental rights and freedoms. Furthermore, it was claimed that the provision incentivised individuals to engage in extramarital relationships due to the extended timeframe, thereby infringing upon the constitutional right to protect and improve one’s corporeal and spiritual existence and contravening the state’s constitutional duty to safeguard the institution of family.

The Court’s Assessment

The Court has observed that the provision, prescribing a three-year period subsequent to the finalisation of a decision dismissing a divorce proceeding before the marital union could be deemed to have irretrievably broken down, aimed to uphold and protect the family institution, recognised as the cornerstone of Turkish society.

The law-maker, in the exercise of its regulatory discretion, possesses the authority to establish procedural and substantive provisions governing divorce, including the criteria for determining the irretrievable breakdown of marital unions. However, this discretionary power must not be exercised in a manner that unreasonably impedes the ability of individuals to obtain a divorce or compels them to endure the continuation of a marital relationship against their will for disproportionately lengthy durations.

The contested provision stipulates that the issuance of a divorce decree is contingent upon the prior dismissal of an earlier divorce proceeding. Considering that written trial procedures are applied in divorce cases, it is evident that the dismissal of such cases cannot be concluded within a short period. Furthermore, under the provision, the marital union can be deemed irretrievably broken due to the absence of reconciliation only if the dismissal decision has become final. Given that the parties may seek legal remedies against the dismissal decision, it is evident that the process of finalisation of the decision may also require a considerable amount of time. Additionally, the provision requires that three years elapse following the finalisation of the dismissal decision for the marital union to be deemed irretrievably broken due to the absence of reconciliation. When the process prescribed by the provision is assessed as a whole, it is apparent that, in cases where reconciliation cannot be re-established, the parties are deprived of the opportunity to obtain a divorce decree for an unreasonable length of time. Accordingly, the provision imposes an excessive burden on those who are unable to dissolve their marital union despite the absence of reconciliation over an extended period.

In light of these considerations, it has been concluded that the contested provision, which fails to strike a reasonable balance between the right to respect for private and family life and the aim of protecting the institution of family, falls contrary to the commensurateness sub-principle within the scope of the principle of proportionality.

Consequently, the contested provision has been found unconstitutional and therefore annulled.