Having Too Many Friends On Social Media Does Not Mean That The Spouse Is Unfaithful
2nd Civil Chamber
Principal Number: 2015/8680
Decision Number: 2016/178
“Case Law Text”
COURT : Civil (Family) Court of First Instance
At the end of the trial of the case between the parties, the judgement given by the local court, dated and numbered above, was appealed by the plaintiff-counter-defendant male for both cases and it was requested that the appeal examination be made with a hearing; On 11.01.2016, the day set for the hearing, the appellant plaintiff-defendant… attorney Av…….. and the counter-party defendant-appellant….. attorney Av….. came. After listening to the speeches of those who came, it was deemed appropriate to leave the matter after the hearing to be examined and decided. Today, all the papers in the file were read and the necessity was discussed and considered:
1- Based on the writings in the file, the evidence on which the decision is based and the legal reasons and especially the fact that a person lives in a village and the number of friends on his facebook profile cannot be accepted as evidence that this person has been unfaithful, nor can it be qualified as behaviour that undermines trust, the behaviour of the plaintiff-counter-defendant man involving infidelity cannot be proved, However, since it is understood that the plaintiff-counter-defendant man, who forced the woman to live with his family, who did not help his wife in in vitro fertilisation treatment, who caused de facto separation by saying “I am like this, if it goes, it goes”, was found to be completely at fault in the events that led to the divorce, the appeals of the plaintiff-counter-defendant man outside the scope of the following paragraphs are unwarranted.
2-The purpose of non-pecuniary damages in divorce is to compensate the impaired mental balance of the party whose personal rights have been attacked due to the events that caused the divorce, and to compensate for the loss of moral values. Therefore, there must be a reasonable ratio between the act violating the personal rights and the amount of compensation. The assessment of non-pecuniary damages in an amount that will lead to the enrichment of one party deviates the institution from its purpose.
While determining the amount of compensation, the judge has to take into consideration, on the one hand, the economic and social status of the party whose personal rights have been harmed and whether he/she has a fault in the divorce and, if any, the degree of fault and the gravity of the act; on the other hand, the degree of fault and the economic and social status of the party who has attacked the personal rights.
Considering the principles explained, the amount of non-pecuniary damages assessed in favour of the defendant-counterclaimant woman is not in accordance with the principle of proportionality and is found to be excessive. Considering the principle of equity in Article 4 of the Turkish Civil Code, it was not correct to establish a judgement as written, while a more appropriate amount of compensation should be appreciated.
3-Divorce cases are among the cases subject to fixed decision and judgement fees. If pecuniary and non-pecuniary damages and alimony, which are in the nature of an annex to the divorce, are requested together with the divorce case, no additional proportional fee is required on the amount requested. Instead of the court deciding to charge a fixed decision and writ fee in accordance with the tariff in force as of the date of the decision, it is also inappropriate to charge a proportional decision and writ fee considering the amount of non-pecuniary damages awarded.
CONCLUSION:
It was unanimously decided that the appealed judgement be DISMISSED for the reasons shown in subparagraphs 2 and 3 above, and the other parts of the judgement subject to appeal, which are not within the scope of the reversal, be APPROVED by changing the reasoning of the divorce judgement for the reason shown in subparagraph l. above, the attorney fee of 1.350.00 TL, which was appreciated for the hearing, be taken from …. and given to …, the advance fee for the appeal be returned to the depositor upon request, the way of correction of the decision be open within 15 days from the notification of this decision.11 .01.2016(Mon.)
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