2nd Civil Chamber of the Supreme Court of Appeals| E. 2016/4634, K. 2017/9893
COURT: Family Court TYPE OF LAWSUIT: Divorce – Jewelry Receivable
JUDGMENT: 1- Considering the identified economic and social statuses of the parties, their degrees of fault in the events leading to divorce, the purchasing power of money, the assault on personal rights, and the violated current and expected interests; the pecuniary and non-pecuniary damages awarded in favor of the plaintiff woman are insufficient. It is necessary to award more appropriate amounts of pecuniary (TCC Art. 174/1) and non-pecuniary (TCC Art. 174/2) damages by considering the principle of equity in Article 4 of the Turkish Civil Code and the provisions of Articles 50 and 52 of the Turkish Code of Obligations. Establishing a judgment without observing these aspects was not found correct.
2- Jewelry and ornaments presented at the wedding belong to the woman and are in the nature of her personal property. The plaintiff woman stated that the defendant had exchanged and spent the jewelry and requested the restitution in kind (aynen iade), or if restitution in kind is not possible, the reimbursement of their value. The defendant man, in his petition of response, stated that a portion of the jewelry was spent at the birth of their common child, Ayşe; a portion was spent to pay the plaintiff’s agricultural social security (Tarım-Bağkur) premiums; and the remaining portion was spent on the purchase of three immovable properties (2/b status) acquired in the name of the plaintiff. There is no dispute regarding the fact that the jewelry was exchanged (sold).
In the concrete case, there is no evidence that the jewelry was sold to pay the woman’s premium debt or to purchase the woman’s immovable properties with the intent of a gift, nor is there evidence that they were given to the man on the condition that they would not be returned. In this situation, the conditions for the return of the jewelry have been met. Therefore, the types, qualities, and values of the jewelry requested by the plaintiff must be clarified; for the jewelry admitted by the defendant man to have been spent and subject to the claim in the lawsuit petition, an expert examination must be conducted to determine their values as of the date of the lawsuit in terms of type, quality, and quantity, and a decision must be rendered according to the result. Dismissing the claim with written reasoning was incorrect and required a reversal.
3rd Civil Chamber of the Supreme Court of Appeals | E. 2017/11837, K. 2017/7065
COURT: Family Court TYPE OF LAWSUIT: Restitution of Jewelry / Participation Receivable
JUDGMENT: Pursuant to Article 6 of the Turkish Civil Code, unless there is a contrary provision in the law, each party is obliged to prove the existence of the facts on which they base their right. As accepted both in doctrine and in the precedents of the Court of Cassation, the burden of proof lies with the person who claims a situation contrary to the ordinary course of life.
As a rule, regardless of who presented them during the wedding, jewelry is deemed donated to the woman and acquires the nature of her personal property. If the defendant proves that these items were given to the husband not to be returned, and were exchanged and spent for mutual needs with the woman’s request and consent, the husband shall be released from the obligation to return.
In the concrete case, based on the statements of the witnesses (Neriman Ünver and Emine Yalçın) and the defendant’s admission that bracelets were sold and spent, it is understood that 6 bracelets were sold during the marriage union. The defendant could not prove that the plaintiff woman gave them with the consent that they would not be returned. Thus, it is indisputable that the defendant husband is obliged to return the jewelry whose existence is proven.
3rd Civil Chamber of the Supreme Court of Appeals | E. 2015/13112, K. 2016/6918
COURT: Family Court TYPE OF LAWSUIT: Restitution of Jewelry
JUDGMENT: As a rule, jewelry presented to the woman during marriage is deemed donated to her, regardless of who purchased it. These gold items may have been sold by the husband and used for various purposes (purchase of a house or vehicle, household needs, wedding debts, honeymoon, etc.). Unless it is proven that the equivalent of these gold items was gifted, their return to the woman is mandatory.
Since jewelry is the type of property that can be easily hidden, moved, and carried, it is always possible for a woman planning to leave the house to take or hide them beforehand. Consequently, under normal conditions, it must be accepted that the jewelry is in the possession of the woman. However, in the concrete case, the court accepted that the plaintiff left the family residence due to the defendant’s pressure. Thus, it is accepted that the woman did not bring the jewelry with her.
The local court’s reasoning—stating that “full, half, and quarter gold coins cannot be considered jewelry as they are used as investment tools in today’s economic conditions”—is incorrect and contradicts the settled precedents of our Chamber. Regardless of whether they are coins (quarter, full) or ornaments, if they were presented at the wedding, they belong to the woman. For the jewelry items determined in the expert report, a decision for restitution in kind, or if not possible, restitution in value must be rendered. Establishing a judgment with illegal reasoning and erroneous evaluation required a reversal.