Divorce case due to crime
DIVORCE CASE DUE TO MINIMUM CRIME
Divorce due to crime refers to the divorce case filed on the basis of "Crime", which is regulated under the title of Reasons for Divorce in Article 163 of the Turkish Civil Code and is among the special reasons for divorce.
TMK Art. 163- "If one of the spouses commits a humiliating crime or leads a dishonorable life and the other spouse cannot be expected to live with him for these reasons, this spouse can always file for divorce."
As can be understood; It was arranged together with "Leading a Dishonorable Life", which is another specific reason for divorce. In this article, we will examine the details of the divorce case due to "Crime", which is a specific, relative and fault-based reason for divorce.
CONDITIONS OF DIVORCE CASE DUE TO CRIME
1-In order to file for divorce due to committing a crime, one of the spouses must have committed one of the crimes considered humiliating while they were in the marriage. This qualification is made not on the basis of a legal basis, but in the light of the reaction (disgraceful, embarrassing) that the committed crime arouses in the public consciousness and is judged by the judge according to the concrete incident.
As examples of crimes that can be subject to divorce proceedings due to their humiliating and disgraceful nature; We can list intentional murder, theft, immigrant smuggling, human trafficking, embezzlement, forgery of official documents, crimes against sexual immunity, crimes that create general danger, and crimes against the constitutional order and the functioning of this order.
It should be noted that the crime alleged as a reason for the divorce case must have been committed intentionally. For example, in cases of negligent homicide resulting from a traffic accident, a work accident, or a doctor's medical error, it is not possible to file a divorce case on the grounds that the perpetrator committed a humiliating crime.
"The plaintiff woman requested a divorce in accordance with Article 163 of the Turkish Civil Code, declaring that her husband was convicted of manslaughter. From the evidence collected, it was seen that the defendant husband deliberately killed a man on 27.09.2003, with the provocation of witness statements that his wife was having an affair, he was taken into custody on the same day, he was tried in detention and sentenced to 10 years with the case file numbered 2003/377 of the Balıkesir High Criminal Court. It is understood that the husband was punished with heavy imprisonment, that the spouses started to live separately from the date of the crime, and that the marriage union was never re-established. According to Article 163 of the Turkish Civil Code, the husband's murder is a humiliating crime for the plaintiff woman. For this reason, living together cannot be expected from the woman. The spouse in this situation can always file a divorce case. Considering that there is no evidence that the plaintiff woman has forgiven her husband, it is correct to decide on the acceptance of the divorce case. "It hasn't happened." (Y2HD, 10.06.2010, E. 2009/10161, K. 2010/11493)
2-In order for the humiliating crime committed by one of the spouses to be the subject of a divorce case, it must be committed after marriage. It has been accepted by jurisprudence that a divorce case filed based on a crime committed before the date of marriage should be rejected. Therefore, a crime committed before marriage cannot be considered as a reason for divorce by the plaintiff who got married knowingly. The other spouse, who learns after marriage that one of the spouses committed a humiliating crime before the date of marriage, should request the annulment of the marriage through a nullity lawsuit, if the conditions are met.
3- In order to file a divorce case, it is sufficient for the spouse who committed the crime to have committed the crime within the marriage. There is no need to have any criminal investigation or conviction. In the ongoing criminal prosecution against the defendant at the time the divorce case is filed, the criminal court decision determining the material event regarding the action subject to the divorce case is made a pending matter as it will be binding on the family court judge.
IN A DIVORCE CASE DUE TO A CRIME, THE CONDITION OF INTOLERABILITY OF SHARE LIFE IS REQUIRED: In the law, the grounds for divorce are described as absolute and relative grounds for divorce. In divorce cases based on absolute grounds for divorce (Adultery, Abandonment, etc.), the condition that the marriage union has become intolerable is not required. However, in divorce cases filed based on the relative reason for divorce, the condition that the joint life has become unbearable for the spouses is required. The reason for committing a crime regulated in TMK 163 is a relative reason for divorce. For this reason, in divorce cases, the judge will evaluate the unbearability of the joint life according to the concrete event. Therefore, the existence of the crime alone is not sufficient for a divorce decision, and it is also necessary to prove that the joint life has become unbearable for the plaintiff.
• Divorce may be decided because even if the defendant has committed a humiliating crime once, it can make the joint life unbearable for the plaintiff. This is the case of the Supreme Court of Appeals 2nd HD. Decision No. 2014/20560 E. 2015/4947 K. and dated 19.3.2015; The case was rejected on the grounds that "it must be proven that the
The case was filed based on the reason of "committing a humiliating crime" in Article 163 of the Turkish Civil Code. It is clear and indisputable that, depending on the nature of the crime committed, the plaintiff cannot be expected to live with her in case she files a lawsuit. The reason for divorce has been realized. While the case should be accepted, it is not considered right to reject the request." He explained. The law does not limit filing a divorce case due to a crime to any limiting period. However, in a divorce case filed years after learning about the crime, although there is no problem as there is no legal limitation for the case to be filed late, the judge may consider this situation as an abuse of right while investigating the condition of the joint life being unbearable. Apart from this, the divorce case filed by the spouse who shows through his behavior that he forgives his spouse who committed a humiliating crime will also be rejected. In a divorce case filed on the basis of a crime, consensual divorce cannot be achieved unless rehabilitationis not carried out in accordance with the procedure. Therefore, it is possible to obtain a consensual divorce by changing the subject of the case through reformation. According to TMK 174/2, the spouse whose personal rights have been damaged due to the event that caused the divorce may demand non-pecuniary compensation from the other spouse who is at fault. In a divorce case due to a crime, the spouse whose personal rights have been damaged may demand an appropriate amount of non-pecuniary compensation from the other spouse who is at fault. According to TMK 174/1, the faultless or less faulty party whose current or expected interests are damaged due to divorce may request appropriate financial compensation from the faulty party. Financial compensation may also be requested in a divorce case due to committing a crime. In case the divorce case is accepted due to committing a crime, the defendant spouse will be considered completely at fault and will not have the right to claim material and moral compensation. According to TMK 175, the party (man or woman) who will fall into poverty due to divorce may request alimony from the other party indefinitely, in proportion to his/her financial means, provided that the fault is not more severe. In a divorce case filed due to a crime, the plaintiff has the right to request alimony if the conditions are met. The defendant spouse, on the other hand, does not have the right to demand alimony as he/she will be deemed to be at full fault if the divorce case is accepted due to committing a crime, which is a special reason for divorce based on fault. After the divorce case is filed, it becomes a legal right for the spouses to live separately from each other. Therefore, in cases where the spouse will fall into poverty due to the divorce case and the judge gives custody of the children as a precaution during the divorce case, precautionary alimony is ordered for the children in accordance with TMK 169. Since the fault situation is not effective in terms of precautionary alimony, precautionary alimony may be given to the defendant if deemed necessary. The judge must decide on interim alimony ex officio, that is, on his own, starting from the date of the case, even if it is not requested by the parties. Custody refers to the rights and responsibilities imposed on parents regarding the education, care and protection of the property of minor children. The judge, who has the discretion to decide who will be given custody of the child, decides based on the opinion he will reach as a result of the research he will conduct regarding the best interests and safety of the child. According to TCK 53, a person is deprived of the right to custody as a legal consequence of being sentenced to imprisonment for a crime he committed intentionally. Although it is preferred not to grant custody to the defendant in a divorce case due to a crime, due to the nature of the crime committed and the safety of the child, this situation is not absolute. In cases where the concrete situation requires it, custody may also be granted to the defendant spouse, taking into account the best interests and safety of the child. Two different requests can be put forward with the same petition, provided that there is a primary-secondary relationship between them. The court first evaluates the primary request and makes a decision; it cannot review the secondary request unless it decides on the primary request. If one of the spouses commits a humiliating and disgraceful crime, a lawsuit can be filed based only on the specific reason for divorce, upon the plaintiff's request, or a divorce lawsuit can be filed based only on the general reason for divorce. In addition, it can be filed in a delayed manner, primarily due to committing a crime, which is a specific reason for divorce, or otherwise, due to the foundation of the marital union being shaken, which is a general reason for divorce. Family courts are responsible for handling divorce cases due to crime. In places where there are no family courts, civil courts of first instance are responsible for hearing divorce cases as family courts. In cases of divorce due to a crime, the competent court is the court where one of the spouses resides or where they lived together for the last six months before the lawsuit, in accordance with TMK 168.PERIMENT TO FILE A DIVORCE CASE DUE TO CRIME
IS CONSENTED DIVORCE POSSIBLE IN A DIVORCE CASE DUE TO CRIME?
MATERIAL AND MORAL COMPENSATION IN DIVORCE CASE DUE TO CRIME
ALISM IN DIVORCE CASES DUE TO CRIME
CUSTODY IN DIVORCE CASE DUE TO CRIME
CAN A DIVORCE CASE BE FILED WITH DELAY DUE TO A CRIME?
THE COURT WITH RESPONSIBILITY AND AUTHORITY FOR DIVORCE CASE DUE TO CRIME
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