Divorce case due to adultery (cheating)

The marriage union is established when a man and a woman marry. Your spouses; They have a number of rights and obligations arising from the law, such as jointly ensuring the happiness of the established marriage union, taking care of the care and supervision of children together, living together, helping each other and remaining loyal to each other.

A happy and healthy marriage can only be achieved if the spouses pay maximum attention to these obligations.

Adultery is one of the special grounds for divorce regulated in Article 161 of the Turkish Civil Code. Divorce lawsuit due to adultery (cheating) refers to the type of lawsuit that the other spouse can file as a result of one of the spouses acting contrary to the obligation of fidelity arising from the law.

ADULTISM (CHEATING) IS AN ABSOLUTE REASON FOR DIVORCE

COMMON LIFE DOES NOT BECOME UNbearable

The reasons for divorce are classified as absolute and relative reasons for divorce in our Turkish Civil Code.

In cases filed based on one of the reasons for relative divorce, the judge is not satisfied with proving the existence of an event that shakes the foundation of the marriage in order to decide on divorce. In addition, as a result of the event that shook the marriage, the continuation of the joint life has become a situation that is no longer expected from the spouses.

In a divorce case filed based on one of the absolute grounds for divorce, proving the alleged incident is sufficient for a divorce decision to be made. In other words, it has been accepted as a presumption that the proven action is certain to shake the foundations of every marriage and that the continuation of the joint life cannot be expected from the spouses anyway.

Adultery is an absolute cause for divorce. Therefore, proving the act of adultery is sufficient for a divorce decision. When making a decision, the judge will not be interested in how the marriage union is affected due to adultery or whether the joint life can be continued.

ADULTISM (CHEATING) IS A REASON FOR DIVORCE BASED ON Fault

We mentioned that adultery is a special and absolute reason for divorce regulated by law. Adultery is also a reason for divorce based on fault. As a matter of fact, fault is one of the conditions of a divorce case based on adultery. The situations in which the adulterous spouse cannot be considered at fault and the impact of the fault on the decision will be discussed later under the title of the conditions of the case.

VIOLATION OF THE OBLIGATION OF LOYALTY AND ADULTERY (CHEERING)

Any behavior that may be considered contrary to the obligation of loyalty may be subject to divorce cases. However, in order to file for divorce due to adultery, the act that violates the obligation of fidelity must be adultery. Adultery is when a married man or woman has sexual intercourse with someone other than their spouse

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As we explained above, a divorce case based on adultery can only be filed due to sexual intercourse that one of the spouses had with someone other than his/her spouse. A divorce case cannot be filed based on adultery due to attitudes and behaviors that do not reach the level of sexual intercourse but constitute infidelity or undermine trust. For example, since behaviors such as flirting, kissing, hugging, chatting in the virtual environment, which indicate a pure emotional relationship, do not fall within the concept of adultery, a divorce case can be filed within the scope of shaking the foundation of the marriage union, which is a general reason for divorce.

CONDITIONS OF DIVORCE CASE DUE TO ADULTERY (CHEATING)

In order for a divorce decision to be given due to adultery, the conditions stipulated by the law must be met.

1-MARRIAGE CONDITION

In order for a divorce decision to be made based on the adultery of one of the spouses, it is necessary to have a properly established marital relationship before the official authorities. The condition of marriage states that sexual intercourse with someone else before marriage or after the end of marriage cannot be considered as adultery.

CHEATING DURING ENGAGEMENT

Divorce based on adultery can only be given based on the act of adultery occurring within the marriage. A spouse who learns within the marriage that his or her spouse had sexual intercourse with someone else during the engagement period has the right to request annulment of the marriage unless 6 months have passed from the date of learning and, in any case, 5 years have passed since the marriage. As can be understood, although the action that took place during the engagement period cannot be subject to a divorce case due to adultery, it can be subject to a request for annulment of the marriage if the conditions are met.

CHEATING IN SITUATION OF SEPARATION

Spouses not actually living together; work, health, military service, etc. It may be based on reasons such as the right to live separately arising from the law or the decision to obtain a separate residence received from the court. However, no legal right or court decision means that spouses can violate their obligation of fidelity. Even if they are actually living separately, the spouses' obligation to sexual fidelity continues. Therefore, since sexual intercourse of one of the spouses with another person will be considered adultery, the other spouse may file for divorce based on adultery.

As a result, it should be known that the fidelity obligations of the spouses within the marriage continue until the divorce decision given by the court is finalized. Once the court decision becomes final and the marriage ends legally, the obligations of the spouses to each other disappear.

2-CONDITION OF SEXUAL RELATIONSHIP WITH SOMEONE ELSE

The second condition of a divorce case based on adultery is that one of the spouses actually has sexual intercourse with someone other than his/her spouse. The fact that the sexual intercourse was a one-off event, that contraception was used during sexual intercourse, or that the sexual intercourse remained at the level of incomplete attempt does not prevent a divorce case based on adultery. In all of these cases, Article 161/1 of the TMK. According to the article, the other spouse may file a divorce case based on adultery.

THINGS THAT ARE NOT CONSIDERED ADULTERY

• Intimacies of one of the spouses with someone other than their spouse that do not involve actual sexual contact (hugging, kissing, etc.) will not be considered adultery, so they cannot be subject to a divorce case based on adultery.

• Situations such as flirting that does not involve actual sexual intercourse, emotional or sexual conversations on the phone or over the internet, and correspondence only indicate a violation of the obligation of fidelity. Therefore, such behaviors cannot be subject to divorce cases based on adultery.

EFFECT OF THE GENDER OF THE THIRD PARTY ON THE RIGHT TO FILE A LAWSUIT

The common view in the doctrine is that for sexual intercourse to be considered adultery; The opinion is that the woman who commits adultery must have had sexual intercourse with a man other than her husband, and the man who commits adultery must have had sexual intercourse with a woman other than his wife. This means that a divorce case cannot be filed based on adultery due to sexual intercourse with a non-heterosexual person. In such cases, it is stated that a divorce case may be filed based on another specific reason for divorce, such as leading a dishonorable life, or a general reason for divorce.

Can a lawsuit be filed based on adultery if one of the spouses committed the act of adultery with an LGBTI individual?

According to recent decisions of the Supreme Court, regardless of the gender of the third party who is involved in the act of adultery, sexual intercourse with someone other than the spouse gives the other spouse the right to file for divorce based on adultery.

The 2nd Civil Chamber of the Supreme Court of Appeals, which carried out the appeal review of the decision given by the first instance court stating that "sexual intercourse between men and women is considered adultery and the spouses are decided to divorce due to adultery", found the said decision to be accurate and approved it.

As a result, in the light of the recent Supreme Court decisions, we believe that sexual intercourse with someone other than the spouse should be considered adultery and should be sufficient for a divorce decision on the grounds of adultery, regardless of who or what gender the act of adultery is committed with.

3-THE CONDITION THAT THE ADULTERING SPOUSE BEING GUILTY

In order for the behavior of a person who has sexual intercourse with someone other than his/her spouse to be considered adultery, he/she must have done this behavior knowingly and willingly, that is, with his/her own will. A person who claims that sexual intercourse with someone other than his/her spouse took place against his/her will must prove this situation.

To give an example of situations where a divorce case cannot be filed based on adultery due to lack of fault;

• Sexual intercourse under severe threat to the person's right to life and physical integrity,

• Sexual intercourse while anesthetized or unconscious by the influence of substances such as drugs or alcohol,

• Sexual intercourse in which a person is so intoxicated that he or she loses consciousness, or is under the influence of intoxication.

In these cases, since the existence of the fault condition cannot be mentioned, a divorce case cannot be filed based on adultery.

PROOF IN A DIVORCE CASE DUE TO ADULTERY

In divorce cases due to adultery, the burden of proving the allegation of adultery belongs to the plaintiff. In such cases, it is often not possible to commit the crime. If the plaintiff who claims that his wife is committing adultery has strong and convincing evidence, the judge may decide on the existence of adultery and, based on this, decide on the divorce of the spouses.

"The fact that a woman takes another man into a shared residence when she is alone and this person is caught hiding half-naked indicates the existence of adultery. In this respect, adultery is proven."

"… it is understood that the defendant left the house with a person named Ali in April 2003 and started to live a husband and wife life with this person as if they were married and is still with the same person. The reason for divorce stated in Article 161 of the Turkish Civil Code has been realized."

• In divorce cases due to adultery; Doctor reports, photographs, witness statements, hotel records, official documents can be used as proof.

• Posts made on social media applications such as Facebook, Instagram, Twitter, Tiktok, phone call or message records, audio recordings and video images can also be considered as evidence as long as they are obtained in accordance with the law.

• It should not be forgotten that, although the defendant's confession is evidence, since this confession is not binding on the judge, a divorce decision cannot be given based on the confession without any other evidence proving the act of adultery.

Since the mentioned means of proof cannot be taken as basis for the decision if they are obtained illegally, the defendant must clearly assert this situation.

People who act with the intention of proving their spouse's act of adultery and collecting evidence regarding this may, in some cases, commit the crime of violating the privacy of private life regulated in the Turkish Penal Code. Marriage does not give spouses the freedom to access each other's private spaces without permission and to record their images and voices. Being aware of this, spouses should avoid committing crimes subject to criminal sanctions under the Turkish Penal Code.

LIFE PERIOD IN A DIVORCE CASE DUE TO ADULTERY

In accordance with the 2nd paragraph of Article 161 of the TMK, the right of the spouse who has the right to file a lawsuit ceases after six months have passed since the spouse learned the reason for the divorce, and in any case, five years have passed since the act of adultery.

A divorce case due to adultery can be filed until 6 months have passed since the act of adultery was learned and 5 years have passed since any act of adultery. Although a divorce case cannot be filed based on adultery after these periods have passed, a lawsuit can be filed based on the general reason for divorce due to violation of the obligation of fidelity.

The 6-month disqualifying period begins to run from the day the other spouse learns of the act of adultery. In cases where there is an act of adultery that is not a one-off, but continues continuously, the starting time of the disqualifying period is the day the adultery ends.

"... Considering the statement of the witnesses of the defendant-plaintiff (woman) and the date of birth of the husband's child born out of wedlock, the husband continued the act of adultery, the child lived with a woman named H. according to the date of birth, the divorce case based on the woman's adultery was in due course, therefore, although this case should have been accepted, it was not correct to reject it with written justification." (Y2HD. 2014/26168 E. 2014/25672 K. 15.12.2014)

THE FORGIVING PARTY HAS NO RIGHT TO SUIT

According to the 3rd paragraph of Article 161 of the TMK, "the pardoning party has no right to sue." If the spouse, who learns that his/her spouse is having sexual intercourse with someone other than him/her, explicitly or implicitly forgives this act of his/her spouse with his/her own free will, cannot later file for divorce on the basis of adultery.

HOW IS THE RATIO OF THE DEFECTIVE SPOUSE'S SHARE IN THE RESIDUAL VALUE AFFECTED IN A DIVORCE CASE DUE TO ADULTERY OR ATTACK ON LIFE?

In divorce cases due to adultery or attempt against life, the judge has the authority to reduce or eliminate the share of the at-fault spouse in the residual value in accordance with equity. The judge's ability to use this authority regulated in TMK 236/2 depends on the existence of other conditions. These conditions;

• The regime of participation in acquired property, which is the legal property regime between spouses, must be valid.

• TMK 236/2. In order for the article to be implemented, the judge hearing the divorce case must decide to divorce the spouses due to adultery or attempt against life.

• TMK 236/2. Pursuant to the article, the possibility of reducing or removing the share of the residual value can only be used against the at-fault spouse. There is an opinion in the doctrine that it is also applicable to spouses with equal faults.

• Reducing or removing the residual share of the at-fault spouse must be equitable. The judge must make a fair decision, taking into account the conditions in the concrete case.

IN WHICH CASE CAN A CLAIM BASED ON TMK ARTICLE 236/2 BE BROUGHT?

In practice, the prevailing opinion is that this opportunity, which can be used against the at-fault spouse in a divorce case due to adultery or intent to kill, can only be claimed in cases related to the liquidation of the property regime.

This situation is stated in the decision of the 2nd Civil Chamber of the Supreme Court of Appeals dated 05.03.2013, which supports the dominant opinion;

"In her counterclaim petition, the defendant-counter-plaintiff woman requested that, in addition to divorce and its accessories, if a divorce is decided on the grounds of adultery, the plaintiff-counter-defendant husband's participation in the acquired property in accordance with Article 236/2 of the Turkish Civil Code should be decided to be eliminated. This request is not an accessory to the divorce, but can only be put forward by the parties in the case regarding the liquidation of the property regime and can be heard by the court." It is expressed as follows.

However, in the dissenting opinion of the Supreme Court member who did not agree with this decision,

"After the end of the property regime, when liquidation is initiated, the amount of the at-fault spouse's participation receivable is calculated on the basis of this reduced share. Or, if it is decided to abolish the share completely, the participation receivable of the spouse who commits adultery or attempted life will not arise. Therefore, in order to decide to reduce or abolish this ratio, I believe that it is not necessary for a lawsuit to be filed regarding the participation receivable with the liquidation of the property regime. The reduction or removal of the share ratio on the residual value is accompanied by a divorce case based on the reason that requires this. may be requested."

In our opinion, this view is more accurate.

IS CONSENTED DIVORCE POSSIBLE IN A DIVORCE CASE DUE TO ADULTERY (CHEATING)?

In a divorce case filed on the basis of adultery, a consensual divorce cannot be achieved unless proper correction is made. Therefore, it is possible to obtain a consensual divorce by changing the subject of the case through reformation.

MATERIAL AND MORAL COMPENSATION IN DIVORCE CASE DUE TO ADULTERY

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 adultery, 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 adultery.

In case the divorce case is accepted due to adultery, the defendant spouse will be considered completely at fault and will not have the right to claim material and moral compensation.

ALISM IN DIVORCE CASES DUE TO ADULTERY

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 due to adultery (cheating), 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 claim alimony as he/she will be deemed to be at full fault if the divorce case is accepted due to adultery, 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 provisional alimony, the defendant may be granted provisional alimony 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 IN DIVORCE CASE DUE TO ADULTERY

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. The fault of the parties in the divorce case has no effect on the determination of custody. The criteria that determine custody are always the best interests and safety of the child. Children over the age of 7-8 are heard regarding custody, accompanied by a social worker, pedagogue and psychologist working within the family courts, and under the supervision of a judge, without anyone else. The notes taken during this meeting are compiled into a report and submitted to the court. The court, which has discretionary authority regarding custody, freely evaluates the interview report with the child, adhering to the principle of the best interest of the child.

THE COURT WITH RESPONSIBILITY AND AUTHORITY FOR DIVORCE CASE DUE TO ADULTERY (CHEATING)

Family courts are responsible for handling divorce cases due to adultery. 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 adultery, 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.