Republic of Türkiye
Court of Cassation
2nd Civil Chamber
Docket No. 2020/548
Decision No. 2020/1743
Date: March 2, 2020
CASE: At the end of the proceedings in the case between the parties, the judgment of the civil chamber of the regional court of appeal, whose date and number are shown above, was appealed on points of law by the plaintiff-counterdefendant wife with respect to the determination of fault, the dismissal of her claims for non-pecuniary damages and poverty alimony, the amount of interim alimony, and the pecuniary damages awarded in favor of the defendant-counterplaintiff husband. The file was read and the matter was considered and deliberated:
DECISION: In the mutual divorce actions based on the fundamental breakdown of the marriage, the court of first instance held that the husband was grossly at fault and the wife slightly at fault in the events leading to the divorce. It accepted both actions, granted the divorce, and awarded damages and alimony in favor of the plaintiff-counterdefendant wife. The plaintiff-counterdefendant wife appealed this decision with respect to the amounts of damages and alimony. The defendant-counterplaintiff husband appealed with respect to the determination of fault, the alimony and damages awarded to the plaintiff-counterdefendant wife, and the dismissal of his own claims for damages. Reviewing the appeal, the regional court of appeal held that no new event attributable to the defendant-counterplaintiff husband had occurred after the uncontested divorce action previously filed by the wife and later withdrawn, and that the plaintiff-counterdefendant wife was entirely at fault in the events leading to the divorce. On that basis, it corrected the reasoning of the decision, dismissed the plaintiff-counterdefendant wife's claims for non-pecuniary damages and poverty alimony, and awarded 7,500 TL in pecuniary damages to the defendant-counterplaintiff husband.
If the withdrawn action was filed solely under Article 166/3 of the Turkish Civil Code, withdrawal from the uncontested divorce action does not mean that the events before the filing date of that action were forgiven. Therefore, either party may file a divorce action on any ground for divorce based on facts that occurred before the filing date of the uncontested divorce action that ended in withdrawal. In the new action, facts predating the filing of the uncontested divorce action must also be taken into account in determining fault.
In the present case, the action previously filed by the plaintiff-counterdefendant wife and later withdrawn was based solely on Article 166/3 of the Turkish Civil Code. The withdrawal therefore does not mean that the facts before the filing date of the uncontested divorce action were forgiven, and the decision should have been rendered with this in mind. Rendering the judgment as written on the basis of an erroneous assessment was not found to be correct, and the decision had to be reversed.
CONCLUSION: It was unanimously decided on March 2, 2020 (Monday) to REVERSE the appealed decision of the regional court of appeal for the reason stated above, that there is no need at this stage to examine the other grounds of appeal in view of the reason for reversal, that the appeal court fee paid in advance be refunded to the payer upon request, and that the file be sent to the relevant civil chamber of the regional court of appeal.