What is adultery as a specific ground for divorce?
Adultery is the foremost of the specific grounds for divorce. It is regulated by Article 161 of the Turkish Civil Code. Under the provision “If one of the spouses commits adultery, the other spouse may file for divorce,” the law makes clear that the other spouse may justifiably end the marital union in the face of adultery.
In daily life, a breach of the spouses' duty of fidelity to each other and adultery are two separate situations that are often confused. The duty of fidelity is a concept that can be interpreted broadly.
Not every act that can be described as infidelity amounts to adultery
Definition
Adultery, one of the forms a breach of the duty of fidelity between spouses can take, is regulated in Article 161 of the Turkish Civil Code as a specific and absolute ground for divorce. However, the Civil Code does not define adultery.
In its dictionary meaning, adultery is “sexual intercourse between persons who are not married to each other” (Turkish Language Association, Güncel Türkçe Sözlük).
According to the view adopted in legal doctrine, adultery is defined as “one of the spouses voluntarily having sexual intercourse with a person of the opposite sex while the marital union continues” (Dede, İ.: Türk Boşanma Hukukuna Farklı Bir Yaklaşım: Zina ile Haysiyetsiz Hayat Sürme Arasındaki Keskin Sınır, Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, Vol. 23, No. 3, January 2017, p. 650). (Court of Cassation Grand General Assembly for the Unification of Judgments, Docket No. 2017/5, Decision No. 2018/7, dated July 6, 2018)
The duty of fidelity and the concept of adultery
Spouses owe each other a duty of fidelity within the marital union. A breach of this duty does not require an act of adultery in every case. In other words, while adultery requires the spouse to have sexual intercourse with a third person, the duty of fidelity can also be breached through other relationships and forms of intimacy that do not involve sexual intercourse.
Although a spouse's acts that damage the emotional bond between the spouses may be seen by the other spouse as infidelity or betrayal, they cannot be treated as adultery.
Therefore, in a divorce action, material and moral damages may be claimed from the spouse who breached the duty of fidelity under Article 174 of the Civil Code, depending on the degree of fault. If its conditions are met, poverty alimony (spousal support) may also be requested under Article 175 of the Civil Code.
A breach of the duty of fidelity has further consequences as well. It may lead to the reduction or removal of the share under Articles 236 and 252 of the Civil Code on the matrimonial property regime. The spouse who breached the duty may be disinherited by a testamentary disposition under Article 510(2) of the Civil Code. Judicial intervention may also be requested against that spouse under the provisions on the protection of the marital union in Article 195 et seq. of the Civil Code.
What can be done when the duty of fidelity is breached?
A spouse's conduct in breach of the duty of fidelity may also qualify as violence or domestic violence under Law No. 6284 on the Protection of the Family and Prevention of Violence Against Women. Since such conduct may fall within the statutory definitions of sexual or psychological violence, the person subjected to it may also benefit, as a victim of violence, from the protection provided by Law No. 6284 (Badur/Turan Başara, p. 109 et seq.).
Proving adultery
A breach of the duty of fidelity in the form of adultery is a specific and absolute ground for divorce, and the betrayed spouse may file for divorce under Article 161 of the Civil Code. However, under that article, the right to file for divorce on this ground lapses six months after the spouse learns of the adultery and, in any case, five years after the act of adultery. In addition, if the betrayed spouse forgives the adultery, the right to file for divorce on this ground is extinguished. Apart from this, when the duty of fidelity is breached, the other spouse may also file for divorce under Article 166 of the Civil Code on the grounds that the marital union has been fundamentally shaken.
“The most important condition for adultery to be deemed to exist is that ‘sexual intercourse’ is proven conclusively or by a strong presumption. It has not been proven conclusively or by a strong presumption that the defendant-counterclaimant wife had sexual intercourse with another man. The defendant-counter-defendant wife spoke on the phone with another man, but it cannot be understood from the content of the conversation that sexual intercourse with another man took place during the marriage. Therefore, this conduct of the defendant-counterclaimant wife is not adultery but ‘conduct undermining trust,’ and it is faulty conduct warranting divorce under Article 166/1-2 of the Turkish Civil Code.” (Court of Cassation 2nd Civil Chamber, Docket No. 2016/17968, Decision No. 6344, dated May 16, 2018)
Evidence that leads to a firm conviction that sexual intercourse took place is required.
“Since a woman taking another man into the shared residence at night while she is alone indicates adultery, it is understood from the investigation conducted and the evidence collected that the defendant-plaintiff wife took a man into the shared residence on December 5, 2010 and was caught with this person at home at 10:00 p.m. that same night. The parties must therefore be divorced on the ground of adultery.” (Court of Cassation 2nd Civil Chamber, Docket No. 21517, Decision No. 20095, dated November 2, 2015)
Under Article 161(2) of the Civil Code, the betrayed spouse loses the right to sue six months after learning of the adultery or, if the spouse never learns of it, in any case five years after the date of the adultery.
Divorce actions based on allegations of fault through adultery are subject to specific time limits. If these time limits are exceeded, the right to sue lapses.
However, if the adultery is continuous, these time limits must be calculated from the date of the last incident.
In divorce actions based on the legal ground of adultery (Civil Code, Article 161), the six-month peremptory period provided by law starts, for continuing acts, from the date the last act ended. It is understood from the witness statements and from the investigation report prepared by the police to determine the defendant's social and economic situation that the defendant's cohabitation with another woman was continuous and that they had children from this relationship. In this case, treating the incident as a single act without considering that the six-month period for adultery starts from the date of the last act, and dismissing the action for failure to comply with the peremptory period even though the conditions for accepting a divorce action based on the legal ground of adultery (Civil Code, Article 161) were met, was found incorrect and required reversal. (Court of Cassation 2nd Civil Chamber, Docket No. 2016/19306, Decision No. 6946, dated May 29, 2018)
The defendant-plaintiff wife filed a divorce action based on adultery (Civil Code, Article 161), alleging that her husband was living with another woman. The court dismissed the claim on the grounds that the action had not been filed within the six-month peremptory period. The court accepted that the defendant-plaintiff wife had learned of the adultery at the latest by the date of her counterclaim petition of March 1, 2011, and that the consolidated divorce action based on adultery, dated January 30, 2012, had therefore not been filed within the six-month peremptory period. However, the witnesses of the defendant-plaintiff wife stated that the husband continued to live with the other woman. The defendant-plaintiff (wife) also submitted civil registry records showing that a child named S. D. was born on July 10, 2012 to the woman named H. with whom the husband lived, and that the child was entered in the civil registry on April 17, 2013 following the husband's acknowledgment. Considering the statements of the defendant-plaintiff (wife)'s witnesses and the birth date of the husband's child born out of wedlock, the husband continued the adultery and, judging by the child's birth date, was living with the woman named H. The wife's divorce action based on adultery was therefore filed in time. This action should also have been accepted, and dismissing it on the stated grounds was incorrect. (Court of Cassation 2nd Civil Chamber, Docket No. 26168, Decision No. 25672, dated December 15, 2014)
If the adultery has been forgiven, the right to sue is extinguished
Article 161(3) of the Civil Code states that once adultery has been forgiven, the right to sue on the ground of adultery is extinguished.
Forgiveness must be evident from an act or statement that amounts to forgiveness
It is understood from the investigation conducted and the evidence collected that the defendant-plaintiff wife took various men into the home and had a long-standing relationship with a person named Mehmet, and that she thus committed adultery. The court dismissed the husband's action, stating that the plaintiff-defendant husband had gone to reconcile with his wife and bring her home, and that this act amounted to forgiveness. However, the husband's going to get his wife did not amount to forgiveness. He went to talk with his wife, and when the defendant-plaintiff wife refused to come and swore at him, the husband stabbed her. These events do not show that the husband forgave his wife or viewed the events with tolerance. The plaintiff-defendant husband's divorce action should therefore also have been accepted, and treating the husband's conduct as forgiveness and dismissing the action as written was incorrect. (Court of Cassation 2nd Civil Chamber, Docket No. 2012/26115, Decision No. 2013/11574, dated April 25, 2013)
Forgiveness does not extinguish the right to sue for adultery committed afterward
The court dismissed the divorce action based on adultery (Civil Code, Article 161) filed by the wife on the grounds that “although it is established that the defendant committed adultery, the plaintiff forgave her spouse, and it could not be proven that the adultery continued after the forgiveness.” It is understood that the defendant had a relationship with another woman, that he had a child with this woman on July 24, 2010, that the child's mother filed a paternity action against the defendant on February 28, 2011, that the defendant's paternity was established, and that the judgment became final on October 23, 2012. It is true that the parties reconciled after the plaintiff-defendant wife learned of her husband's relationship with another woman, and that they went on the Hajj pilgrimage together in September 2010. The present divorce action was filed on October 5, 2011. It is understood from the testimony of the witness heard at the hearing of February 13, 2012 in the paternity action against the defendant, and from the message transcripts submitted to the file, that the defendant's relationship with the same woman continued after the parties reconciled. Although forgiveness extinguishes the right to sue based on prior adultery (Civil Code, Article 161, last paragraph), it has no effect on the right to sue based on subsequent adultery. Since it has been established that the defendant's relationship with the same woman continued after the plaintiff forgave him, the wife's divorce action should have been accepted and the parties divorced on the ground of adultery (Civil Code, Article 161). Dismissing the claim with insufficient reasoning was found incorrect. (Court of Cassation 2nd Civil Chamber, Docket No. 2014/14998, Decision No. 2014/15758, dated July 7, 2014)
Where adultery is established in a divorce action, that party is considered gravely at fault
“The plaintiff wife requested divorce primarily on the legal ground of adultery (Civil Code, Article 161) and, alternatively, on the legal ground of the breakdown of the marital union (Civil Code, Article 166/1). The court dismissed the wife's divorce claim based on the legal ground of adultery (Civil Code, Article 161), accepted her action under Article 166/1 of the Turkish Civil Code and ruled that the parties be divorced.
It is understood from the proceedings and the evidence collected, as the court also accepted, that the defendant husband's infidelity is established. The conditions of Article 161 of the Turkish Civil Code are met. In this case, it must be accepted that the plaintiff wife proved her divorce action based on adultery. The wife's divorce action should therefore have been accepted on the legal ground of adultery, and rendering the judgment as written was incorrect and required reversal.” (Court of Cassation 2nd Civil Chamber, Docket No. 2016/20829, Decision No. 8244, dated June 27, 2018)
The plaintiff-counter-defendant wife filed a divorce action against the defendant-counterclaimant husband based on the legal ground of the breakdown of the marital union (Civil Code, Article 166/1-2), and the defendant-counterclaimant husband filed a counterclaim for divorce based on the legal ground of adultery (Civil Code, Article 161). The court accepted the action of the plaintiff-counter-defendant wife and dismissed the action of the defendant-counterclaimant husband. As the court also accepted, the defendant-counterclaimant husband could not prove his action based on adultery. Nevertheless, it is also understood from the entire case file that the plaintiff-counter-defendant wife engaged in conduct undermining trust. In this case, considering the faulty conduct the court attributed to the husband in the accepted action of the plaintiff-counter-defendant wife, the defendant-counterclaimant husband should have been found “more” at fault than the plaintiff-counter-defendant wife. Finding the defendant-counterclaimant husband fully at fault is contrary to procedure and law. However, since the decision is correct in its outcome, the judgment accepting the divorce action of the plaintiff-counter-defendant wife had to be upheld with its reasoning amended. (Court of Cassation 2nd Civil Chamber, Docket No. 2017/4179, Decision No. 2018/14280, dated December 11, 2018)