Divorce is regulated under Articles 161 et seq. of the Turkish Civil Code and is a type of lawsuit that can be filed upon the occurrence of one of the grounds stipulated in the law or by the agreement of the parties. The grounds for divorce stipulated in the law are reasons attributed to the fault-based behaviors of the spouses.
Within the marriage union, spouses have obligations toward each other, such as the duty of fidelity, the duty of care, and the obligation to contribute to the expenses of the union.
Behaviors such as the exercise of violence by a spouse against the other, insults, continuous lying, avoidance of sexual relations, humiliating acts, adultery, and failure to contribute to the expenses of the family union during the continuation of the marriage union are characterized as “fault”.
In order to file a divorce lawsuit, it is not required for the spouse filing the lawsuit to be faultless or less at fault. A spouse at fault may also file a divorce lawsuit; however, if the plaintiff’s fault is more severe, the defendant has the right to object to the divorce lawsuit, and the defendant spouse must also possess at least some degree of fault. In cases where the defendant is completely faultless, the lawsuit filed by the spouse at fault must be dismissed.
Article 166 of the Turkish Civil Code stipulates that “if the marriage union is shaken to its core to such an extent that the parties cannot be expected to continue their common life, each of the spouses may file for divorce.” According to the decisions of the Court of Cassation, it is not considered correct to interpret or evaluate this provision in a way that allows a completely faultless spouse to file a lawsuit and obtain a divorce judgment for their benefit. This is because such an idea would contradict the fundamental legal principle that no one can acquire a right based on their own actions and total fault.
The Court of Cassation Decision regarding the subject is as follows:
T.C. COURT OF CASSATION 2ND CIVIL CHAMBER
Basis No: 2016/17889
Decision No: 2016/13836
Date: 17.10.2016
SUMMARY: Pursuant to Article 166 of the Turkish Civil Code No. 4721, it is not necessary to be completely faultless or less at fault to request a divorce; even the party who is more at fault has the right to sue. However, for a divorce to be granted, the existence of at least some degree of fault on the part of the defendant is essential and must be determined. If the spouse who is less at fault objects to the divorce, the determination of this situation alone cannot be sufficient to grant a divorce decree. The objection of the spouse who is less at fault must constitute an abuse of right, and it must be understood that no interest worthy of protection remains for the spouse and the children. According to the current facts, it is beyond doubt that the marriage union is shaken to its core to an extent that its continuation cannot be expected from the spouses. Nevertheless, the fact that this result has been reached stems entirely from the attitudes and behaviors of the plaintiff, and no fault attributable to the defendant has occurred. In this case, while the request should have been rejected for the explained reason, rendering a divorce decision by falling into error in the interpretation of the legal provisions is contrary to procedure and the law.
LAWSUIT: At the end of the trial of the lawsuit between the parties, the judgment rendered by the local court, the date and number of which are shown above, was appealed by the defendant male regarding the determination of fault, the material and moral damages and poverty alimony awarded in favor of the woman, and the rejected compensation claims; the documents were read and discussed:
DECISION: 1-) Although the local court accepted the plaintiff woman’s divorce case by finding the defendant male completely at fault on the grounds that he applied physical violence to his spouse and insulted her; from the evidence collected, it is understood that the man applied violence to his spouse in 2010 and was convicted, and the marriage continued after this act. It must be accepted that this act of the defendant male was forgiven by the plaintiff woman, or at least met with tolerance. The existence of any other fault attributable to the defendant male could not be proven. The statements of the plaintiff woman’s witnesses are based on hearsay from the plaintiff woman herself. In the final incident, the plaintiff woman, who insulted her husband, is completely at fault for the events leading to the divorce.
Article 166 of the Turkish Civil Code No. 4721 stipulates that “if the marriage union is shaken to its core to such an extent that the parties cannot be expected to continue their common life, each of the spouses may file for divorce.” It is not correct to interpret and evaluate this provision in a way that allows a completely faultless spouse to file a lawsuit and obtain a divorce judgment for their benefit. Such a thought contradicts the fundamental legal principle that no one can acquire a right based on their own actions and total fault. On the other hand, such a thought would create a divorce phenomenon contrary to our system through unilateral will. A person wishing to obtain a divorce could shake the marriage union to its core—to an extent that its continuation is not expected—without any action or behavior from the other party, and then demand a judgment for divorce on the grounds that the union is now shaken. Therefore, while it is not necessary to be completely faultless or less at fault to request a divorce according to Article 166 of the Turkish Civil Code, and even the party more at fault has the right to sue, the existence and determination of at least some fault on the part of the defendant is indispensable for a divorce decision. If the spouse with less fault objects to the divorce, the determination of this situation alone cannot be sufficient for a divorce decree. The objection of the spouse with less fault must be in the nature of an abuse of right, and it must be clear that no interest remains for the spouse and children that is worthy of protection (TCC Art. 166/2).
According to current events, the marriage union is undoubtedly shaken to its core to an extent that its continuation is not expected. However, reaching this result was entirely caused by the plaintiff’s attitudes and behaviors, and no fault attributable to the defendant has occurred. In this case, while the request should have been rejected, the decision to divorce by misinterpreting the law is contrary to the law. However, since this aspect was not appealed, it was not made a reason for reversal, and mentioning the error was deemed sufficient.
2-) As shown in point 1 above, the plaintiff woman is completely at fault for the events leading to the divorce. Without considering this matter, the acceptance of the male as fully at fault and, depending on this erroneous determination of fault, the awarding of poverty alimony (TCC Art. 175) and material and moral damages (TCC Art. 174/1-2) in favor of the defendant woman was not correct and required a reversal.
3-) Article 174/1 of the Turkish Civil Code No. 4721 stipulates that the faultless or less at fault party whose existing or expected interests are harmed due to divorce may request appropriate material compensation from the party at fault; Article 186 stipulates that spouses shall choose the house together and contribute to the expenses of the union with their labor and assets in proportion to their power. From the evidence collected, it is understood that the spouse requesting material compensation is not more at fault or equally at fault as the other in the events leading to divorce. As a result of the divorce, this spouse has at least lost the material support of the other. Therefore, the court should award an appropriate amount of material compensation in favor of the defendant male, taking into account the social and economic conditions of the parties, their faults, and the principle of equity (TCC Art. 4, TCO Art. 50 and 52). Failure to consider this point was not found correct.
4-) Article 174/2 of the Turkish Civil Code No. 4721 stipulates that the party whose personal rights have been attacked due to the events causing the divorce may request moral compensation from the party at fault. From the evidence collected, it is understood that the defendant male, who requested compensation, was not heavily or equally at fault in the events causing the fundamental shaking of the marriage union, and these events constitute an attack on personal rights. Therefore, the court should rule on an appropriate amount of moral compensation in favor of the defendant male, taking into account the social and economic conditions of the parties, the severity of the act forming the basis of the compensation, and the rules of equity (TCC Art. 4, TCO Art. 50, 51, 52, 58). Failure to consider this point was not found correct.
CONCLUSION: It was unanimously decided on 17.10.2016 that the appealed judgment be OVERTURNED for the reasons shown in points 2, 3, and 4 above, that the appeal fee be returned to the depositor upon request, and that the path for correction of the decision remains open within 15 days from the notification of this decision.