Constitutionality Review

Contested Provision

The contested provision stipulates that where an action for divorce filed on any grounds is dismissed, and one year has elapsed since the dismissal decision became final, the marital union shall be deemed to have irretrievably broken down if the spouses have failed to re-establish their common life for any reason, and divorce shall be granted upon the request of either spouse.

Ground for the Request for Annulment

It is maintained in brief that the period prescribed by the contested provision significantly hinders individuals from obtaining a divorce and is incompatible with the principle of proportionality. Accordingly, the contested provision is claimed to be unconstitutional.

The Court’s Assessment

The contested provision establishes a presumption regarding the irretrievable breakdown of the marital union. Accordingly, where it is established that the spouses have failed to re-establish their common life within the one-year period prescribed by the contested provision following the finalisation of the previous divorce proceedings, the marital union shall be deemed to have irretrievably broken down, and a divorce shall be granted upon the request of either spouse.

In this regard, the provision, which requires the lapse of a one-year period following the finalisation of the decision dismissing the previous divorce proceedings before the presumption of irretrievable breakdown becomes applicable, constitutes a restriction on the right to respect for private and family life.

Article 41 of the Constitution enshrines the family as the foundation of Turkish society and imposes on the State the duty to protect the family. The one-year requirement following the finalisation of the dismissal decision before the marital union may be deemed irretrievably broken down on account of the spouses’ failure to re-establish their common life serves the aim of preserving, to the greatest extent possible, the family institution recognised as the foundation of Turkish society. Accordingly, the restriction imposed by the contested provision on the right to respect for private and family life pursues a legitimate aim of protecting the family, an obligation incumbent on the State under Article 41 of the Constitution.

It is evident that the requirement of a one-year waiting period before the marital union may be deemed irretrievably broken down due to the spouses’ inability to resume their common life serves the purpose of preserving the family institution to the greatest extent possible. Therefore, the restriction imposed by the provision pursues the legitimate aim of protecting the family.

It falls within the legislature’s discretion to regulate the substantive and procedural aspects of divorce in light of the constitutional significance of the family institution and, in this regard, to determine the period following the finalisation of the dismissal decision in divorce proceedings within which the spouses’ failure to resume common life should be regarded as evidence of the irretrievable breakdown of the marital union. Accordingly, the restriction imposed by the provision, which remains within the legislature’s discretion, cannot be considered unnecessary in pursuit of the legitimate aim of protecting the family.

Although it falls to the legislature to determine the conditions under which the marital union shall be deemed irretrievably broken down due to the inability to re-establish common life, the provision introduced in this regard must not impose an excessive burden on the individuals concerned, in accordance with the sub-principle of proportionality.

In its earlier annulment decision (E.2023/116, K.2024/56, 22 February 2024), the Court held that, in consideration of the procedure regulated under the provision as a whole, the individuals concerned could not obtain a divorce for an unreasonably long period during which common life could not be re-established, thereby imposing an excessive burden on them.

Following the aforementioned annulment decision, the legislature amended the provision and reduced the required period from three years to one year, with a view to striking a balance between the interests of individuals seeking to exercise their right to divorce and the public interest in the protection of the family.

Taken as a whole, the one-year period prescribed under the contested provision for the presumption of irretrievable breakdown to become applicable does not impose an excessive burden on the individuals concerned.

Accordingly, the Court has concluded that the provision, which strikes a fair balance between the right to respect for private and family life and the aim of protecting the family, is not in breach of the sub-principle of proportionality, according to which any interference must be commensurate with the legitimate aim pursued.

Consequently, the contested provision has been found constitutional, and therefore the request for its annulment has been dismissed.