Divorce Case on the Grounds of Adultery (Adultery) is the most common type of case filed among the reasons for private divorce in practice.
Adultery means sexual intercourse of one of the spouses with someone other than his/her spouse of the opposite sex. Adultery is a clear violation of the spouses’ loyalty obligations towards each other in the family union. Even though the word “adultery” means sexual intercourse, the Court of Cassation accepts that the divorce case filed on the grounds of adultery should be accepted even if there are events that remain at the attempt stage and give the impression that adultery has been committed.
One of the spouses may file for divorce based on both the ground of adultery and the general ground of divorce. In the contentious divorce case filed based on two grounds in this way, if the case is rejected due to not being filed in due time, in case the adultery is proved, the judge will be able to decide for divorce on the grounds of general divorce (shaking the foundation of the common life) even if the judge cannot directly rely on the ground of adultery due to time.
The period for filing a contested divorce case on the grounds of adultery is six months from the date the other spouse learnt of the adultery and in any case five years from the end of the adulterous act. This period is a forfeiting period. Divorce cases to be filed only on the grounds of adultery after the lapse of the prescriptive period should be rejected. However, if the lawsuit is filed on the grounds of adultery and general grounds for divorce at the same time, even if the prescriptive period for adultery has expired, if the adultery is proved, the divorce decision should be given not on the grounds of adultery, but on the grounds that the common life has been shaken from its foundations.
The other spouse who forgives his/her spouse for adultery has no right to sue. The forgiveness may be implicit or explicit, as well as verbal or written. The waiver of the lawsuit filed due to adultery is also in the nature of forgiveness and constitutes an obstacle to file a divorce case based on the same events (adultery). The permission of one of the spouses to adultery before the adultery occurs is not in the nature of forgiveness, but forgiveness is possible only after the act has occurred (an unborn right cannot be waived). However, the Court of Cassation has stated that the objection of the spouse who explicitly permits adultery or implicitly approves by remaining silent during the adultery to the divorce case to be filed on the basis of general grounds for divorce should be accepted as abuse of right and a divorce decision should be made.
In divorce cases filed due to adultery, the other spouse may claim non-pecuniary damages from the adulterous spouse according to the general principles of compensation law.
The custody of the children is determined according to the general provisions. In other words, if it is in the best interest of the children to give the custody of the children to the adulterous spouse, the court may give the custody of the children to the adulterous spouse. Being a good (faithful) spouse and being a good parent are legally recognised as different concepts.
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