166/1 of the Turkish Civil Code. In order for a divorce to be decided in accordance with the article, the marriage union must be shaken to the extent that they are not expected to continue their common life. The fact that the spouses continue to live together while the divorce case is ongoing shows that the foundation of the marriage union has not been shaken and that it is actually possible to continue living together.
While the divorce case is ongoing, spouses may declare that they forgive each other or take actions to that effect. In this case, it is decided to reject the divorce case that has been filed and is ongoing. This statement may be express or implied. In this sense, according to the jurisprudence of the Supreme Court, for example, spouses going on vacation together while the divorce case is ongoing or continuing to live in the same house means that they have implicitly forgiven each other or that the foundation of the marriage union has not been shaken. Also, spouses messaging each other and spouses having sexual intercourse are examples of behaviors that qualify as forgiveness. As a result, the court will decide to reject the divorce case.
After the divorce case, if the spouses came together and made peace and started to live together with the will to continue the marriage union, a divorce cannot be decided based on the previous reasons for the divorce case. However, if the reasons after reconciling and coming together are based, these facts must be proven separately in order for a divorce to be decided.
Since the parties came together again and showed their will to continue their marriage by forgiving the past events, it should be accepted that they forgave each other for the events that had happened between them until then. In this case, it is not possible to rely on the events before the parties have forgiven each other as a reason for divorce and to give a divorce decision for the same reason.
If a long period of time has passed since the reasons for filing a divorce case have passed because the marriage union has been shaken to its core, the divorce case filed will be rejected. Despite the aforementioned reasons, it is accepted that the marital union is intact because the marriage union continues and the spouses continue to live together. The length of time that has passed is determined within the framework of the rule of honesty. There is no limitation period in a divorce case based on the reason of living a dishonorable life. This reason can always be relied upon within the framework of the rule of honesty. However, since the divorce case based on dishonorable living, which has already been filed many years later, eliminates the condition of the marital union becoming intolerable, the case is rejected on this basis. In a divorce case due to adultery, the right to file a lawsuit expires after six months have passed since the act of adultery was learned, and in any case, five years have passed since the act took place. Again, as mentioned in Articles 161 and 162 of the Turkish Civil Code, the right to file a divorce case for the reasons of adultery and attempted life will cease after a period of six months and five years has passed, as well as the right to file for forgiveness through a written or verbal declaration or to take amnesty-like actions in the light of the Supreme Court decisions.
Supreme Court Decision on the Subject
T.R.
Supreme Court
GENERAL ASSEMBLY OF LAW
CORE NO.2011/2-634
DECISION NO.2011/720
DECISION DATE.30.11.2011
DIVORCE
SHAKING OF THE MARRIAGE UNION
“Jurisprudence Text”
At the end of the trial due to the “divorce” case between the parties; Upon the request of the defendant’s attorney to review the decision dated 12.11.2009 and numbered 2009/189 E., 2009/879 K. given by the Eskişehir 2nd Family Court regarding the acceptance of the case, with the decision of the 2nd Civil Chamber of the Supreme Court of Appeals dated 01.03.2011 and numbered 2010/233 E., 2011/3546 K.;
(…It is understood that after the events mentioned in the plaintiff’s witness statements, the parties made peace and came together on 14.2.2009.
In accordance with Article 166/1-2 of the Turkish Civil Code; In order for a divorce decision to be made, it must be proven that the marital union has been shaken to such an extent that it is not expected from the spouses to continue their joint life. However, some of the statements of the plaintiff witnesses heard are statements that are not suitable for accepting the situation of being shaken from its foundations in Article 166/1 of the Turkish Civil Code, and some of them consist of explanations whose reasons and motives are not explained and which are far from convincing. In this respect, while the case should be rejected, it is against the procedure and the law to make a mistake in the evaluation of the evidence and decide to divorce with insufficient justification….) It was reversed and the file was returned to its place, and at the end of the retrial; The court resisted the previous decision.
APPELLANT: Defendant’s attorney
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was examined by the General Assembly of Legal Affairs and it was understood that the decision to resist was appealed in due time and the papers in the file were read, the necessary discussion was taken:
The case is about divorce, material and moral compensation and alimony request.
Claiming that the marital union between the parties was shaken to its core due to the defendant’s faulty behavior, the plaintiff’s attorney requested that the parties be divorced, the custody of the future child be given to the plaintiff, precautionary measures and poverty for the plaintiff, alimony for the future child, and pecuniary and non-pecuniary compensation in favor of the plaintiff.
The court decided to accept the divorce case, give custody to the plaintiff, and partially accept the request for alimony and material and moral compensation.
Upon the appeal of the defendant’s attorney, the decision was reversed by the Special Chamber, with the justification written in the title section above.
The local court stated that although the marital union is a process and the issue of incompatibility is related to all the events and perceptions in the process, accepting the continuation of the relationship for a while as reconciliation in the decree of dissolution is not considered compatible with the ordinary flow of life and human psychology; The previous decision was resisted on the grounds that if a contrary opinion was reached, the party who did not file a divorce case in the first negative event would not be able to file a lawsuit again, and therefore the reversal order was not complied with; The defendant’s attorney appealed the decision.
In terms of the scope of the decisions to overturn and resist; In the case at hand, it is evident from some witness statements that the parties reconciled and came together after some of the events cited as the basis for the request for divorce, and there is no dispute between the special chamber and the local court on this issue.
Dispute; Whether the parties coming together means that they forgive each other in terms of previous events and whether a divorce decision can be made based on these events; In addition, it focuses on whether or not it has been proven by the plaintiff that events that would shake the foundation of the marriage union occurred in the period after they came together.
First of all, it should be noted that if the parties reconciled and came together again after the events that caused the marriage union to be shaken from its foundations and started to live together with the will to continue the marriage union, this means that they forgave each other and a divorce decision cannot be given based on pre-reconciliation reasons (Decision of the General Assembly of the Supreme Court of Law dated 21.03.2007 day 2007/2-156 E., 2007/157 K.). If, after reconciliation, it is alleged that events occurred between the parties that would cause the marital union to be shaken from its foundations, this issue must be proven separately.
In the concrete case:
The fact that the parties came together after the events cited as the basis for the divorce request is stated by some witnesses and accepted by the court and the special chamber.
Since the parties came together again, forgave the past events and demonstrated their will to continue their marriage, it should be accepted that they forgave each other for the events that had happened between them until then.
In this case, it is not possible to rely on the events before the parties forgave each other as a reason for divorce and to give a divorce decision for the same reason.
On the other hand, according to the witness statements and the scope of the file, the existence of an event between the parties in the period after they came together and forgave each other, which would be sufficient to accept that the marital union was shaken from its foundations, has not been proven by the plaintiff.
In that case, while it is necessary to comply with the Special Chamber’s Overturning decision adopted by the General Assembly for the additional reasons explained above, resisting the previous decision is against the procedure and the law.
Therefore, the decision to resist must be overturned.
CONCLUSION: The appeal objections of the defendant’s attorney are accepted and the decision to resist is REVERSED in the Special Chamber’s decision and for the reasons stated above, in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is implemented with the reference to “Provisional Article 3” added to the Code of Civil Procedure No. 6100 and Article 30 of Law No. 6217, and in case of request, the appeal advance fee is refunded to the depositor. It was decided by majority vote on 30.11.2011.