Divorce On The Grounds Of Actual Separation
T.C
JUDICIARY
GENERAL ASSEMBLY OF LAW
Date: 28.02.2018 Esas: 2017 / 2648 Decision: 2018 / 3070
After it was understood that the decision of resistance was appealed in due time and the documents in the file were read, the General Assembly of Civil Chambers discussed the necessity:
The main case is related to the divorce request based on the reason of “de facto separation” in Article 166/end of the Turkish Civil Code No. 4721 (TCC), and the combined case is related to the divorce request based on the reason of “shaking of the marriage union” in Article 166/1 of the same Code.
The attorney for the plaintiff (male) stated that the parties did not come together after the finalization of the decision of the divorce case that resulted in rejection, and that this period has exceeded 3 years and requested a decision for divorce in accordance with Article 166/last of the TMK.
The attorney for the defendant-merging plaintiff (woman) stated that there was severe incompatibility between the parties due to the reasons arising from the plaintiff and requested a divorce decision in accordance with Article 166/1 of the TMK.
The counsel for the plaintiff co-defendant (man) and the counsel for the plaintiff co-defendant (woman) separately defended the dismissal of the lawsuits.
The local court decided to accept the lawsuit filed by both parties on the grounds that the parties have not come together since the finalization of the divorce decision that resulted in rejection, it has been finalized that the plaintiff co-defendant is at fault according to the finalized court decision, the man belittled the woman, violated her personal rights and thus the marriage union was shaken from its foundations, and ruled for 20.000,-TL pecuniary damages, 20.000,-TL non-pecuniary damages and 600,-TL precautionary and poverty alimony in favor of the defendant co-defendant (woman).
Upon the appeal of the representative of the male co-defendant, the decision was reversed by the Special Chamber with a majority of votes for the reasons explained above.
The local court decided to resist on the grounds that the hearing of witnesses would not be effective for the plaintiff and that the witnesses that the plaintiff wanted to be heard did not explain on which subject they would testify, and that the request of the person who filed the lawsuit was met according to the three-year separation process, and the fault status was determined according to the finalized previous court decision, and the decision of resistance was appealed by the attorney of the plaintiff co-defendant (male).
The General Assembly of Civil Chambers stated that “…as stated in Article 297 of the Code of Civil Procedure No. 6100 (CCP), in the conclusion of the judgment, without repeating any words belonging to the reasoning, the judgments given about each of the requests, the obligations imposed on the parties and the rights granted must be shown under the sequence number in a way that does not arouse clear doubt and hesitation. As written above, since there is a contradiction between the reversed first decision and the decision to resist, it is necessary to procedurally reversed the decision without examining the appellate objections on the merits of the matter in order to establish a procedural resistance provision by the local court…”
The decision of the Local Court to resist by complying with the reversal decision of the General Assembly of Civil Chambers of the Court of Cassation was appealed by the counsel of the plaintiff and the co-defendant male.
The dispute, which came before the General Assembly of Civil Chambers by way of resistance, centers on whether it is appropriate for the court not to hear these witnesses, taking into account the fact that the witnesses shown by the man in the divorce case, which was decided to be combined and filed by the woman due to severe incompatibility, were not waived.
During the discussions held in the General Assembly of Civil Chambers, before examining the merits of the case, the preliminary issue of whether the decision subject to appeal is in fact a new judgment; therefore, the issue of whether the appeal should be examined by the General Assembly of Civil Chambers or the Special Chamber was discussed as a preliminary problem.
As it is known, in order to be able to talk about the existence of a decision of resisting, the court must decide within the framework of the previous evidence without collecting any new evidence inspired by the reversal decision; although it may expand its reasoning according to its previous decision, it should not change it.
In other words, the existence of a decision of resistance cannot be mentioned if the court has made a decision by changing its reasoning by relying on a new evidence or by being inspired by the reversal, or by evaluating a matter that it had not previously considered in the manner indicated in the reversal.
In the concrete case, in the first decision, the court decided to accept the lawsuits filed by the parties by stating that it was finalized that the plaintiff co-defendant man was defective with the previously filed lawsuit, that the plaintiff co-defendant man belittled the plaintiff co-defendant woman, violated her personal rights and thus the marriage union was shaken from its foundations, that the parties did not come together after the dismissal of the divorce case, but in the decision of resistance dated 02.06. 2016, it was stated that the hearing of witnesses would not be effective on the result, therefore the decision of reversal was not appropriate, and the previous decision was resisted by explaining that after the marriage of the parties, the plaintiff joined defendant did not show the necessary interest, love and affection to the defendant joined plaintiff, did not have sexual intercourse with her even though she did not have a mental and organic disorder according to the report given by the Forensic Medicine Institution, and thus the man was fully at fault and the woman was faultless by avoiding to fulfill his obligations.
Accordingly, it should be 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; it is a new judgment based on a new reasoning that was not discussed and evaluated in the first decision.
As such, the task of examining this new judgment on appeal belongs to the Special Chamber, not the General Assembly of Civil Chambers.
Therefore, the file should be sent to the Special Chamber for the examination of the appellate objections against the new judgment.
CONCLUSION: For the reasons shown above, it was unanimously decided on 28.02.2018 to send the file to the 2nd LAW DIRECTORATE for the examination of the appellate objections of the defendant-merging plaintiff’s attorney regarding the new judgment.