Dıvorce Case Based On Adultery
WHAT IS A DIVORCE CASE BASED ON ADULTERY?
Divorce on the grounds of adultery (adultery) is a special reason for divorce regulated under Article 161 of the Turkish Civil Code. Spouses have an obligation of loyalty towards each other since the establishment of the marriage union. If one of the spouses commits adultery, he/she will be in breach of this obligation and the other spouse may file for divorce for this reason. According to the Civil Code, the divorce case due to adultery is regulated as “If one of the spouses commits adultery, the other spouse may file for divorce.”.
However, adultery is not defined in the law. Adultery means that married individuals have sexual intercourse with someone other than their spouse within the marriage union. The courts and the Court of Cassation also take into consideration the extent of adultery. Relationships that do not lead to sexual intercourse are not accepted as adultery. For example, flirting, talking to others, messaging, kissing, hugging or other forms of sexual intimacy are not considered as adultery, but are considered as behaviours that break trust. In the presence of facts that do not reach the level of adultery, a divorce case can be filed based on the grounds of shaking the union of marriage from its foundations regulated under Article 166/1 of the TCC or the ground of leading a life without dignity regulated under Article 163 of the TCC.
WHAT ARE THE CONDITIONS FOR DIVORCE ON THE GROUNDS OF ADULTERY?
If the spouses want to file for divorce on the ground of adultery, which is a special ground for divorce, some conditions must be fulfilled for this. First of all, there must be a valid marriage relationship between the spouses. The marriage must be made by official institutions, that is, it is necessary to be married with a civil marriage. A divorce case can be filed based on the adultery committed by the other spouse within the official marriage union. If the spouses live separately from each other and no official divorce decision has been made, then a divorce case can be filed based on the adultery of the other spouse. Because in this case, since the marriage union continues officially, the spouses’ obligation of loyalty to each other continues.
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As another condition, the married spouse must commit adultery with another person or be in a situation where it is considered very likely that adultery has been committed and be at fault in this regard. As explained above, adultery is the sexual intercourse of married individuals with someone other than their spouses. In order to rely on the ground of adultery in the divorce case, it must be proved that the adultery is in the dimension of sexual intercourse.
Otherwise, the lawsuit should be filed based on other grounds, not on adultery, which is a special ground. In this regard, the extent of adultery gains importance in terms of the reason on which the divorce case will be based. The spouse must also be at fault while committing adultery. If the spouse is under severe threat while committing the act of adultery or if there is another issue that will affect his/her will to remove his/her fault, then the ground of adultery cannot be relied upon. In order to speak of adultery, the act of adultery must be intentional.
WHAT IS THE TIME PERIOD FOR FILING A DIVORCE CASE BASED ON ADULTERY?
The divorce lawsuit to be filed on the grounds of adultery is subject to periods of forfeiture. In other words, these periods are not statute of limitations. For this reason, even if the parties do not put forward, the judge will automatically take these periods into consideration. If the time limits are not complied with, the case will be dismissed. In the divorce case based on adultery, the periods are regulated in Article 166 of the TCC as follows: “The right to file a lawsuit shall expire six months after the spouse who has the right to file a lawsuit learns the reason for divorce, and in any case, five years after the act of adultery.”
It is regulated as two periods. What is important here is that the right of action shall be cancelled after six months starting from the date the spouse learnt the reason of adultery. The spouse who wants to divorce on the grounds of adultery has to file this lawsuit within six months from the date he/she learnt that the other spouse committed adultery. Otherwise, he/she will no longer be able to file a lawsuit on the ground of adultery.
Another period, which is five years after the act of adultery, is also determined as a forfeiture period. For example, if the date of the spouse’s learning of the cause of adultery is 4 years and 11 months after the other spouse committed the act of adultery; the spouse has a period of 1 month, not 6 months, to file a lawsuit based on the cause of adultery. Because in any case, the lawsuit cannot be filed after five years have passed since the act of adultery.
CAN THE FORGIVING PARTY FILE FOR DIVORCE ON THE GROUNDS OF ADULTERY?
According to Article 163/3 of the Turkish Civil Code, the forgiving party does not have the right to file a divorce case for adultery. However, in order for the right of action based on adultery to be dropped, the forgiving spouse must forgive after the act of adultery has occurred. The forgiveness of the spouse before the act of adultery or the consent of the spouses to each other’s adultery is not valid as forgiveness in this case.However, if the other spouse forgives the other spouse after learning about the act of adultery, the forgiving spouse does not have the right to file a divorce case based on the ground of adultery. The opinion of the Court of Cassation is that the forgiving spouse does not have the right to file a lawsuit.
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