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Who is a Divorce Lawyer?
Divorce lawyer is a colloquial title given to the lawyers who is in charge of divorce cases. Divorce is a challenging and miserable process for the married couples. Receiving a professional legal assistance during this process will help to overcome such a challenging period. In fact, in Turkey's judicial system, there is not any field of lawyer under the title “divorce lawyer”. We will also use this concept since the lawyers of the defendant and the complainant during the divorce cases are colloquially called as such.
There is a meticulous preparation period before each case. Divorce lawyer, like an observer, should discover the incidents which took place during the marriage. Accordingly, divorce lawyer decides on the facts which will provide a basis for the divorce and gets prepared for the case. This is due to the fact that each divorce must be based on a ground according to our judicial system. Unjustified divorce cases are dismissed.
Grounds for Divorce - Trial Preparation and Divorce Lawyers
Divorce lawyer considers the facts and looks for whether there are enough grounds for the divorce. By listening to the incidents told, divorce lawyer tries to find out whether the grounds stated herein below exist for divorce:
• Adultery (Civil Code of Turkey Art.161),
• Deliberate attempt to kill, maltreatment or severe humiliation (Civil Code of Turkey Art.162),
• Committing a humiliating crime (Civil Code of Turkey Art. 163),
• Leading a dishonourable life (Civil Code of Turkey Art. 163),
• Desertion without a solid reason (Civil Code of Turkey 164),
• Mental disease (Civil Code of Turkey 165),
• Irretrievable breakdown of marriage (Civil Code of Turkey Art. 166).
Ascertaining the divorce ground correctly is of vital importance. This is due to the fact that the judge will examine the case in accordance with this. Thus, trial preparation should absolutely be carried out with the assistance of a divorce lawyer.
Divorce Case and Divorce Lawyers
After ascertaining the exact grounds for divorce, divorce lawyer will draft the petition accordingly. Particularly the parties may have demands other than divorce. Divorce lawyer should clarify the demands of his client through the following questions:
• Does the client have the right of custody of the child?
• Does the client ask for alimony?
• Is there a demand for division of assets in accordance with the new Civil Code of Turkey?
• Does the client demand for the compensation of material and moral damages?
Filing A Divorce Case and Divorce Lawyer
Divorce lawyer finalises the grounds for divorce and the demands after listening to his client. Accordingly the attorney, by considering the demands and facts he/she discovered, ascertains the legal basis of the case and drafts the petition. Divorce lawyer starts to prepare for the case file after he/she is aware of the fact that the petition is appropriate for getting the desired result. A case file should consist of sufficient number of petition copies and evidence which help to strengthen the allegations. If there exists documentary evidence to which the attorney can access, they should be physically included in the case file for certain. If the documentary evidence cannot be accessed while preparing the case file, the divorce lawyer will indicate the location of the evidence and request the court to bring them to the trial. Should witness statements be relied on as evidence, names, surnames and addresses of the witnesses should be submitted to the court within the case file. After the case file is perfected as such, court fees and expenses are deposited to the cash office and the file is submitted. Thus divorce case is filed.
Divorce Case Process and Divorce Lawyer
A contested divorce case lasts for 1-2 years in Turkey. Trial preparation plays a significant role in determining the length of the case. If the facts which constitute the grounds for divorce are sufficiently evidenced and proved, the trial may last in a short time. It should be once more underlined that, during the trial preparation, omission of unnecessary information from the case file is vital. Case file drafted by the divorce lawyer is examined by the judge. The judge should, first of all, duly communicate (in the form of written notice) one copy of the petition to the respondent. The response petition of the respondent should also be duly communicated to the defendant.
The judge issues official letters to the related institutions asking them to deliver the documents demanded so as to be added to the file. These letters are called writs. The writs issued may be delivered to the related institution either via mail or by the divorce lawyer. All institutions (police department, hospitals, social security institution etc.) to which a petition is delivered must act accordingly without any delay. When the judge acknowledges that all evidence are collected and the file is perfected for the trial, he/she subpoenas (summons) the parties to the first hearing. First hearing of a case is important. The party who does not participated in the first hearing fails to lodge an objection afterwards against other party’s expansion of its claims or change of its grounds. The judge reads the petitions of the parties which include the mutual allegations; ascertains the issues which the parties come to an agreement and on which they remain controversial, and the evidence. This proceeding is called preliminary examination hearing. It is important for a divorce lawyer to participate in the preliminary examination hearing.
After making the necessary determinations in the first hearing (preliminary examination hearing), the judge determined the date of the second hearing and decides on hearing the witnesses, if any, respectively. The witness may be either one of the family members or one who does not have any kinship. There isn’t any limitation in terms of the number of the witnesses. The important aspect is to prove the fact laying the ground for divorce. Nevertheless, the more the number of the witnesses, the more the incident which constitutes the ground for divorce is proved. The judge has to hear all witnesses requested by the parties to appear. If the judge is of the opinion that the case is sufficiently clarified after having heard the witnesses, he/she may quit hearing all witnesses. The judge renders his decision accordingly.
Divorce lawyers have the right to ask questions directly to the witnesses. There isn’t any limitation for the number of questions which a divorce lawyer may ask in order to clarify the case, eliminate the contradictions in witness statements and reveal the facts in favour of his client.
Divorce Lawyer and Appeals
Both parties have the right to appeal regardless of the decision rendered by the judge. If the case is finalised by dissolution of the marriage, the parties will acquire the right to lodge an appeal to the Supreme Court. Following the appellate review or if the decision is finalised by not being appealed, a letter is communicated to the Civil Registry Office in order to endure that the parties’ birth registers are re-arranged as per the court’s decision. The duty of the divorce lawyer who follows the divorce case in local court continues until the final decision is rendered.
Divorce lawyer, plays a significant defence role in terms of conflicts that may arise in matters such as custody, moral and material compensation, division of assets. Therefore, applying for the assistance of a divorce lawyer during a divorce case will prevent the probable loss of rights.
Istanbul - Turkey Lawyer Baran Dogan