On November 28, 2024, the Constitutional Court of Turkey issued a judgment dismissing a constitutional challenge brought against article 166, paragraph 3, of the Turkish Civil Code (“TCC”), which provides that a marriage must have lasted for at least a year before the spouses may obtain a consensual divorce.
Challenged Provision and Legal Basis
Article 166, paragraph 3, of the TCC states that, “[p]rovided that the marriage has lasted for at least one year, if the spouses apply together or if one spouse accepts the other spouse’s lawsuit, the marriage will be deemed to have been shaken from its foundations [and the judge shall determine whether to] grant a divorce . . . .”
In this case, the Ankara Family Court filed a constitutional objection that the one-year waiting period was in violation of Turkey’s Constitution of 1982, specifically articles 5 (fundamental aims and duties of the State), 10 (equality before the law), 14 (prohibition of the abuse of fundamental rights and freedoms), 17 (right to personal inviolability, corporeal and spiritual existence of the individual), and 41 (right to protection of the family, and children’s rights).
Under article 152 of the Constitution, “[i]f a court hearing a case finds that the law . . . to be applied is unconstitutional, or [is] convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties, it shall [refer the issue to the Constitutional Court, and] postpone the consideration of the case until the Constitutional Court decides on the issue.”
The lower court’s constitutional application argued that the one-year waiting period provision of TCC article 166
ignores the will of the individuals, makes the exercise of fundamental rights and freedoms and the realization of the principle of equality extremely difficult, [renders] a marriage that has actually ended by the parties . . . legally valid for a certain period of time, forc[ing] the parties to turn to different procedures and endure long trial processes in order to file for divorce in cases where the one-year period has not expired. (Judgment para. 7.)
The Constitutional Court assessed the one-year waiting period in light of article 20 of the Constitution on the right of respect for private and family life; article 13, which circumscribes the restrictions that can be placed on fundamental rights and freedoms enshrined in the Constitution; and article 2, which enshrines the rule of law.
The court stated that when assessing the constitutionality of a statute restricting a constitutional right, it evaluates whether the restriction is (1) provided by law, (2) has a legitimate constitutional purpose, (3) is necessary in light of the requirements of the democratic society and a secular republic, (4) is suitable and (5) is proportionate to the purpose that it sought to be achieved. (Paras. 13, 15 & 21.)
The Court’s Opinion
The court explained that in accordance with its precedent, the article 20 right to respect of private and family life may be restricted for purposes of safeguarding other fundamental rights and freedoms or to achieve duties imposed on the State by the Constitution. The court noted that article 41 of the Constitution provides that the “[f]amily is the foundation of the Turkish society and is based on the equality between the spouses,” and that “[t]he State shall take the necessary measures and establish the necessary organization to protect peace and welfare of the family, especially [the] mother and children.” The court referred to the drafting history of article 41, which emphasized the role the family plays in the life of the nation and the need to protect families, while popularizing and facilitating their establishment. (Para. 19.)
The court thus found that the one-year limit had a legitimate constitutional purpose in sustaining the institution of family, since it aims to protect the family by preventing people from terminating a marriage with sudden decisions shortly after the wedding. (Para. 20.)
In discussing whether the restriction was “necessary,” the court noted that under its jurisprudence, the legislature has wide discretion in determining the principles and processes governing divorce. It explained that to prevail on the necessity requirement, the constitutional challenger must show both the availability of less restrictive measures and that the challenged measure imposes a clear and heavy burden on the individual. (Para. 23.) The court found that the waiting period does not impose a clear and heavy burden, and thus properly falls within the scope of the legislature’s discretion. Furthermore, it noted that given that other grounds for for-cause divorce are available prior to the expiration of the one-year waiting period, the restriction is proportionate. (Para. 24.)
The court thus held that the one-year waiting period for consensual divorce does not violate articles 13 and 20 of the Constitution. It further held that it did not need to address separately the alleged violations of articles 5, 17, and 41, as its analysis of articles 13 and 20 addressed the question sufficiently. It dismissed the alleged violations of articles 10 and 14 as irrelevant. (Para. 26.)
Prepared by Zeynep Timocin Cantekin, Legal Research Fellow, under the supervision of Hanibal Goitom, Chief, Foreign, Comparative, and International Law Division I
Law Library of Congress, January 3, 2025
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