Aesthetic Surgery Of The Other Wife While The Husband Is In Economic Difficulties Is A Reason For Divorce
General Assembly of Civil Chambers
Basis Number:
Decision Number:
“Case Law Text”
COURT :Family Court
1. At the end of the trial held due to the lawsuit between the parties for “mutual divorce based on the reason of shaking the foundation of the marriage union”, the decision given by Eskişehir 3rd Family Court on the acceptance of the main and combined case was reversed by the 2nd Civil Chamber of the Court of Cassation upon the appeal of the plaintiff-merging defendant’s attorney, and the Court resisted against the reversal decision of the Special Chamber.
2. The decision of resistance was appealed by the counsel of the plaintiff-merging defendant.
3. Pursuant to the second paragraph of Article 438 of the Code of Civil Procedure No. 1086, which was in force as of the date of the decision of resistance by the General Assembly of Civil Chambers, as amended by the Law dated 26.09.2004 and numbered 5236, as per the second paragraph of Article 438 of the Code of Civil Procedure No. 1086, which was in force as of the date of the decision of resistance, it was decided to reject the request of the plaintiff-merging defendant woman’s attorney for a hearing, since a hearing cannot be held in the appellate review of the decisions of resistance, and after examining the documents in the file, the necessity was discussed.
I. JUDICIAL PROCESS
Request of the Plaintiff-Merging Defendant Woman’s Representative:
4. In the petition of lawsuit, the plaintiff-merging defendant woman’s attorney stated that the defendant-merging plaintiff man threatened to kill his client, kicked her out of the house, put pressure on his client, and demanded and sued for divorce of the parties, 1.000,00TL precautionary-poverty alimony and 150.000,00TL pecuniary and 150.000,00TL non-pecuniary damages.
Reply of the Defendant-Merged Plaintiff Male Representative:
5. In the reply petition of the defendant-merging plaintiff male attorney; the plaintiff-merging defendant woman asked her client to return to Kuşadası and live there, then left the house, her client did not mind the plastic surgery she had done without her client’s knowledge, the allegations are not true, for the reasons explained, the case is dismissed, 1. 000,00TL precautionary alimony, otherwise 1.000,00TL poverty alimony and 150.000,00TL pecuniary and 150.000,00TL non-pecuniary damages.
First Instance Court Decision:
6. The decision of Eskişehir 3rd Family Court dated 12.12.2013 and numbered 2012/860 E., 2013/884 K. With the decision dated 12.12.2013 and numbered 2012/860 E., 2013/884 K.; the plaintiff-merging defendant woman was uncomfortable with the defendant-merging plaintiff man and wanted him to go back to Kuşadası and live there despite the economic difficulties experienced by the family, there was a dispute between the parties due to the division of property, the defendant-merging plaintiff man used threatening words to his wife, the parties were jointly at fault in the events that caused the divorce, the divorce with the acceptance of both cases, the rejection of the compensation claims of the parties and the alimony claims of the plaintiff-merging defendant woman, the defendant-merging plaintiff man’s 1. 000,00TL pension salary and 1.200,00TL rental income, although he received three years of rent in advance and after the deductions, 600,00TL pension salary remained, while the plaintiff-merging defendant woman has a large asset, her rental income is over 10.000TL, taking into account that this situation of the defendant-merging plaintiff man is temporary, it was decided to appreciate a monthly precautionary alimony of 800,00TL and a total poverty alimony of 20.000,00TL in favor of him.
Special Chamber Reversal Decision:
7. With the decision of the 2nd Civil Chamber of the Court of Cassation dated 22.09.2014 and numbered 2014/6826 E., 2014/18019 K;
”… The judgment was appealed by the plaintiff-merging defendant woman’s attorney in terms of the combined divorce case of the man, the injunction and poverty alimony ruled in favor of the man, and the rejected compensation and alimony claims of the woman;
1- Although the court has decided to divorce the parties by accepting the divorce case of both parties by accepting that “the marriage union has been shaken from its foundations to the extent that they cannot be expected to maintain a common life, and this conclusion has been reached by the common fault of the parties”, it is understood from the investigation and the collected evidence that the defendant-plaintiff husband threatened his wife “to kill her” and swore at her “religion and faith”. No defective attitude and behavior of the plaintiff-defendant woman that could shake the union of marriage from its foundations has been proved. In this case, while the combined divorce case filed by the husband should be rejected, its acceptance with insufficient justification was not correct.
2- It is understood from the collected evidence that the defendant-plaintiff husband is retired and has a continuous and regular income and also has a rental income. Pursuant to Article 169 of the Turkish Civil Code, there is no reason requiring a temporary measure for “subsistence” in favor of the husband. The good financial situation of the plaintiff-defendant woman does not justify the appointment of an interim alimony in favor of the husband. It was decided unanimously to overturn the decision on the grounds that “It was not correct to appoint and appreciate the precautionary alimony in favor of the husband without taking this issue into consideration…”.
Resistance Decision:
8. Eskişehir 3rd Family Court dated 26.02.2015 and 2015/21 E., 2015/156 K. (after including the reasoning in the decision before the reversal); Since the maintenance obligation of the man has been eliminated with the TMK, the woman can be held responsible for alimony like the man, considering the difference between the incomes of the parties, there is no inconsistency in the assessment of precautionary alimony in favor of the man, the plaintiff-merging defendant woman avoided the common life by asking her husband to return to Kuşadası again, while the defendant-merging plaintiff man was going through a difficult period economically, the plaintiff-merging defendant woman had a facelift and rhinoplasty surgery that would be considered a luxury, This situation will also constitute fault, the defendant-merging plaintiff man also used threatening and insulting words to his wife, the parties are jointly at fault, since the divorce case filed by the woman has been finalized, there is no room for a decision in terms of divorce since there is no subject matter of the combined divorce case, the compensation claims of the parties and the alimony requests of the plaintiff-merging defendant woman were rejected, and the monthly 800.00TL precautionary alimony in favor of the defendant-merging plaintiff man and a total of 20. 000.00TL poverty alimony in favor of the defendant-united plaintiff man.
Appeal of the Resistence Decision:
9. The decision of resistance was appealed by the counsel of the plaintiff-merging defendant woman within the legal period.
II. DISPUTE
10. The dispute that came before the General Assembly of Civil Chambers by way of resistance; in the concrete case, whether the plaintiff-merging defendant woman’s misconduct is found and whether the combined divorce case of the defendant-merging plaintiff man should be accepted according to the result to be reached here and whether the conditions of Article 169 of the Turkish Civil Code have been met in favor of the defendant-merging plaintiff man.
III. PRELIMINARY ISSUE
11. During the discussions held at the General Assembly of Civil Chambers, firstly, the preliminary issue of whether the decision is in the nature of a new judgment based on a new justification and whether the appeal review should be conducted by the General Assembly of Civil Chambers or the Special Chamber according to the conclusion to be reached here was discussed as a preliminary issue.
IV. REASON
12. As it is known, in order to be able to talk about the existence of a decision to resist, the court must decide within the framework of the previous evidence without collecting any new evidence inspired by the reversal; although it may expand its reasoning according to its previous decision, it must not change it (Article 429 of the Code of Civil Procedure No. 1086).
13. In the event that the court has made a decision based on new information, documents and evidence, or by changing its reasoning inspired by the reversal, or by evaluating an issue that it did not dwell on before in the manner indicated in the reversal, thus changing the legal fact on which it relied in the reasoning of its first decision, the existence of a decision of resistance cannot be mentioned.
14. In the concrete case, in the decision dated 12.12. 2013 dated 12.12.2013; although it was decided to accept the divorce cases filed mutually on the grounds that the plaintiff-merging defendant woman asked her husband to return to Kuşadası and continue to live there, and the defendant-merging plaintiff man threatened his wife, due to the equal fault of the parties, in the decision of resistance; it was accepted that the parties were equally at fault on the grounds that the plaintiff-merging defendant woman asked her husband to return to Kuşadası and continue to live there, made expenses that could be considered luxurious while the family was going through a difficult period economically, and the defendant-merging plaintiff man threatened and insulted his wife.
15. As it is seen, in the decision called as resistance, unlike the previous reasoning, the facts of the plaintiff-merging defendant woman making expenses that can be considered luxurious when the family was going through a difficult period economically and the defendant-merging plaintiff man insulting his wife were attributed as fault.
16. In the face of these explanations, it is accepted that the decision subject to appeal, which the court called as a resistance, is not a real resistance decision in the sense of procedural law and that it is a new judgment since the reasoning of the previous decision has been changed in terms of fault.
17. In that case, the duty to review this decision based on the new reasoning on appeal belongs to the Special Chamber, not the General Assembly of Civil Chambers.
18. Therefore, the file should be sent to the Special Chamber to examine the appellate objections against the new judgment.
V. CONCLUSION:
For the reasons explained;
Sending the file to the 2nd LAW CHAPTER for the examination of the appellate objections of the plaintiff-merging defendant woman’s attorney against the new judgment, however, since the decision correction path is open, these procedures should be fulfilled by the court first, if the decision correction path is applied, the file should be sent to the General Assembly of Civil Procedure, and if not, the file should be sent directly to the Special Chamber by the court, in accordance with the provisional Article 3 of the Code of Civil Procedure. It was unanimously decided on 16.01.2020 on 16.01.2020, in accordance with Article 440 of the Code of Civil Procedure No. 1086, which is being applied according to Article 440 of the Code of Civil Procedure No. 1086, with the way of correction of the decision open within fifteen days from the date of notification of the decision.
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