REPUBLIC OF TURKEY SUPREME COURT
2nd Civil Chamber
Case No: 2012/5303
Decision No: 2012/24965
Decision Date: 17.10.2012
SUPREME COURT DECISION
COURT: İzmir 11th Family Court
DATE: 23.12.2011
NUMBER: Case No: 2010/822 Decision No: 2011/1189
The judgment given by the local court, the date and number of which are shown above, at the end of the trial conducted by combining the “divorce” cases between the parties; was appealed by the plaintiff-defendant (woman) regarding;
determination of fault, material and moral compensation, interim measures, child support and alimony, court costs
and attorney’s fees; The defendant-plaintiff (husband) appealed the judgment given in his own divorce case regarding the determination of fault, his own request for compensation, and the provisional alimony awarded in favor of the woman.
The documents were read and the necessary considerations were made:
1-Based on the documents in the file, the evidence on which the decision is based, the legal grounds, and the absence of any error in the assessment of the evidence, the defendant-plaintiff (husband)’s appeals are not found to be justified.
Since the events that caused the divorce did not constitute an attack on the plaintiff-defendant (woman)’s personal rights, the rejection of the woman’s request for moral compensation is correct in terms of its outcome.
Considering that she has a regular and continuous income, it is understood that no alimony was awarded in her favor. Therefore, the plaintiff-defendant (woman)’s appeals regarding these aspects, the amounts of provisional and child support alimony, and other aspects other than those mentioned in the following paragraphs are found to be unfounded. 2- Regarding the plaintiff-defendant (woman)’s other appeals:
a) The court found the plaintiff-defendant (woman) equally at fault with the defendant-plaintiff husband, and consequently, her claim for material compensation was rejected. However, from the investigation and the evidence gathered, it is understood that the defendant-plaintiff (husband) did not fulfill his duties regarding the marital union, created a separate budget, was extremely frugal, and smelled of sweat due to his lack of attention to personal hygiene. As a result of the husband’s consistent and ongoing attitudes and behaviors, the marital union was fundamentally shaken, and there is no fault attributable to the woman. Therefore, the court’s finding that the woman was equally at fault with the other party and consequently rejecting her claim for material compensation (Turkish Civil Code,
Article 174/1) is incorrect and necessitates reversal. b) Since the divorce case filed and consolidated by the defendant-plaintiff (husband) was deemed unjustified and rejected, it is also incorrect that no attorney’s fee was awarded to the plaintiff-defendant (wife), who was represented by counsel in the case, due to the rejection of this case.
CONCLUSION: The appealed judgment is hereby REVERSED for the reasons shown in paragraphs (a) and (b) of Article 2 above, and the parts of the appeal not covered by the reversal are hereby AFFIRMED for the reason shown in paragraph 1 above. The appeal fee shall be returned to the payer. The decision was made unanimously, with the possibility of requesting a correction of the decision within 15 days from the date of notification of this decision.
17.10.2012