ADULTERY AS GROUNDS FOR DIVORCE
Adultery is an absolute, specific, and fault-based ground for divorce. It is regulated in Article 161 of the Turkish Civil Code. Since adultery is an absolute ground for divorce, the judge must grant the divorce if adultery is proven. Consequently, there is a burden of proof. The result of adultery being a specific ground for divorce is that it is regulated in a separate article of the law. It is specifically regulated as a ground for divorce in Article 161 of the Turkish Civil Code.
According to Article 161 of the Turkish Civil Code:
(1) If one spouse commits adultery, the other spouse has the right to file for divorce.
(2) The right to file a lawsuit expires six months after the spouse with the right to file learns of the grounds for divorce and, in any case, five years after the act of adultery.
(3) The spouse who forgives the offense has no right to file a lawsuit.
Adultery in Turkish Law is defined as “the sexual intercourse of a married person with someone other than their spouse.” Within this definition, three conditions must be met for adultery to occur. These conditions are:
The condition of marriage
The condition of sexual intercourse
The condition of fault
For adultery to exist, there must be a valid marital relationship between the parties to the case. If the parties are not married, adultery cannot be claimed. Consequently, in the absence of marriage, it is deemed that no marriage was ever established. The situation is different for void marriages. Since void marriages will end by the judge’s decision, a void marriage will produce all the consequences of a valid marriage until the judge’s decision, and therefore adultery can be claimed.
It is not necessary for the spouses to live together for adultery to be considered. If one of the parties is declared missing, a decision is made to separate or live in separate residences, or the right to live separately is established as a result of separation or divorce proceedings, sexual relations between one of the spouses and a person of the opposite sex will lead to divorce proceedings.
In our country, since “marriage-like relationships” and “same-sex relationships” do not result in marriage, adultery cannot be said to exist in such relationships. A divorce case cannot be filed based on adultery resulting from same-sex relationships.
The objective element of adultery is the sexual relationship of married parties with someone other than their spouse. Any sexual relationship constitutes adultery. Even if it remains at the attempt stage, it constitutes adultery. Furthermore, the sexual relationship constitutes adultery.
In our country, since “marriage-like relationships” and “same-sex relationships” do not result in marriage, adultery cannot be claimed in such relationships. A divorce case cannot be filed on the grounds of adultery resulting from same-sex relationships.
The objective element of adultery is the sexual intercourse of married parties with someone other than their spouse. Any sexual relationship is considered adultery. Even if it remains at the attempt stage, it is considered adultery. Furthermore, the sexual relationship does not need to be ongoing to be considered adultery.
A single sexual relationship is considered adultery. Sexual relationships with the same sex, sexual relationships with animals, artificial insemination, and amorous acts are not considered adultery.
Pornographic acts, such as caressing, hugging, kissing, etc., are not considered adultery even if they violate the obligation of fidelity. Therefore, divorce proceedings cannot be initiated on the grounds of adultery. In such cases, divorce proceedings may be initiated based on the provisions of Article 163 of the Turkish Civil Code, “Living a life of dishonor.”
Adultery must be based on fault. Engaging in such a sexual relationship without fault on the part of one spouse, for example, if a woman is kidnapped and raped by force, and similar situations beyond one’s control, cannot be considered adultery.
The burden of proof lies with the plaintiff. The parties’ confession does not bind the judge according to Article 184/b.3 of the Turkish Civil Code. Therefore, the defendant’s confession alone is not considered evidence binding on the family judge. Furthermore, oaths cannot be used as evidence in divorce cases due to adultery.
Other evidence that would justify strong suspicion is also considered proof in divorce cases on grounds of adultery.
In a divorce case due to adultery, the right to file a lawsuit expires six months after the woman or husband with the right to file the lawsuit learns of the reason for the divorce, or in any case, five years after the act of adultery. These are limitation periods. This is regulated in Article 161 of the Turkish Civil Code. If adultery was committed as a single act, these periods begin on the day of the act; in cases of ongoing adultery, they begin on the day the adultery ends.
The forgiving party has no right to file a lawsuit. Forgiveness may be implicit or explicit, written or verbal. Forgiveness is a right strictly attached to the individual. It cannot be granted through a representative. The forgiving party must have the capacity to discern. If there are reasons that impair the will, the forgiveness becomes invalid.
If one spouse commits adultery, the other spouse may file for divorce. The other spouse may also file for divorce on the grounds that the infidelity of one spouse has shaken the foundation of the marriage. The plaintiff may file separate lawsuits for each of these two rights or may rely on both separate grounds in the same lawsuit. However, after waiving the divorce lawsuit filed on the grounds of adultery, the plaintiff cannot file a divorce lawsuit based on the same incident on the grounds that the foundation of the marriage has been shaken.
If the plaintiff has filed for divorce on the grounds of adultery, the family court judge cannot grant a divorce on the grounds of the marriage being fundamentally shaken, even if adultery is the cause of the shaking of the marriage.
Similarly, if the plaintiff files for divorce on the grounds of the marriage being fundamentally shaken rather than adultery, the parties cannot be granted a divorce on the grounds of adultery.