Irreconcilable Differences: Breakdown of the Marital Union — TMK m.166

TMK m.166/1 provides that where the marital union has been shaken at its foundations to such a degree that the spouses can no longer be expected to maintain a common life, either spouse may bring an action for divorce. The ground is general and relative; the judge assesses, in the circumstances of the case, whether the marriage has in fact become intolerable.

Persistent denigration, physical and psychological violence, infidelity short of adultery, fundamental disruption of sexual life, economic pressure, failure to protect a spouse against family interference, and dependence (alcohol, drugs, gambling) are accepted by Court of Cassation case law as grounds for irreconcilable differences.

TMK m.166/2 provides an important balancing element: if the petitioner's fault is graver, the respondent has the right to object to the action. However, if the respondent's objection amounts to an abuse of right and the continuation of the marriage no longer serves the respondent or the children, divorce may still be granted.

This rule prevents the spouse predominantly at fault from forcing a divorce by exploiting his/her own wrongdoing, while giving the judge flexibility where maintaining the marriage would harm the parties.

TMK m.166/3 provides that if the marriage has lasted at least one year and the spouses apply jointly — or one accepts the other's action — the marital union is deemed shaken at its foundations. This paragraph is the legal basis for uncontested divorce.

TMK m.166/4 provides that where a divorce action has been dismissed and one year has elapsed since the decision became final without re-establishment of a common life for any reason, divorce is granted on the application of either spouse (Law No. 7532 of 14 November 2024 reduced the previous three-year period to one year). Actions based on this paragraph are known as actions on the ground of 'de facto separation'.

In family-law matters, the legal assessment is made by taking into account the fault of the parties, the best interest of the children, their economic circumstances, and the lawfulness of the evidence. Message records, witness statements, bank transactions, medical reports and police reports become effective only when submitted in proper form.

Claims for divorce, support, custody, compensation and division of matrimonial property may produce independent outcomes. The petition must therefore clearly set out which claim is based on which facts and which evidence.

In disputes concerning children, the court takes into account the child's physical, emotional, educational and social needs rather than the parties' assertions. Social-investigation reports, school arrangements, health condition and the parents' communication style play an important role in the court's assessment.