Constitutionality Review

Contested Provision

The contested provision stipulates that in cases where the spouses jointly apply to the court seeking the dissolution of their marriage, or either of them consents to the action for divorce filed by the other, the divorce may be granted on grounds of irretrievable breakdown of marriage only when a period of one-year elapses from the date of the marriage.

Ground for the Request for Annulment

It was maintained in brief that the contested provision set aside the free will of the spouses and made it excessively difficult to exercise fundamental rights and freedoms and to realise the equality principle, that the provision led to the de jure continuation of the marriage that had been de facto terminated by the parties, and in cases where the one-year period has not yet elapsed, it compelled the spouses to resort to different procedures for instituting divorce proceedings and to undergo lengthy proceedings. It was thus claimed to be unconstitutional.

The Court’s Assessment

It is evident that the provision - which conditions the spouses’ ability to dissolve the marriage by mutual agreement upon the elapse of one-year period following the marriage- is intended to preserve the family institution, which is foundation of the Turkish society. In this regard, the contested provision has a legitimate aim in the constitutional sense.

It appears that the one-year time-limit required for granting divorce on mutual consent of spouses will contribute to the preservation of family institution. Therefore, the Court has considered that the condition requiring the elapse of at least one year, which is laid down in the contested provision, is suitable for achieving, to the extent possible, the legitimate aim of preserving family.

Given the constitutional significance of the family institution, the legislator enjoys a wide margin of appreciation with regard to regulating the principles and procedures as to divorce. In areas where the legislator exercises wide margin of appreciation, it is insufficient to merely demonstrate the existence of less lenient alternative means so as to challenge the necessity of the employed means that restrict constitutional or legal rights or place burdens on individuals. It must also be established that the given means impose an explicitly excessive burden on individuals. Accordingly, the Court has concluded that making the acceptance of the presumption that the marriage has irretrievably broken-down conditional upon the elapse of one year falls within the legislator’s margin of appreciation and meets the criterion of being necessary.

The irretrievable breakdown of marriage is enumerated as one of the grounds for divorce in Article 166 of the Turkish Civil Code no. 4721, which stipulates that spouses may divorce on this ground in case of their mutual consent to the dissolution of their marriage. However, it has been considered that the legislator intends to preclude spouses from filing an action for divorce without the elapse of a certain period of time upon their marriage. Such a suspensive effect will apparently encourage the spouses to ponder their decision to divorce. Along with this procedure whereby the spouses may get divorced on condition that they have been married for a period of at least one year, they may also file an action on any other grounds for divorce specified in the Code no. 4721.

In this sense, the Court has concluded that the impugned restriction imposed on the spouses’ right to respect for their private and family life does not place a disproportionate burden on them.

Consequently, the Court has found the contested provision constitutional and accordingly dismissed the request for its annulment.