Completely At Fault Spouse Filing For Divorce
T.C.
JUDICIARY
2ND CIVIL CHAMBER
E. 2015/16407 K. 2016/7878 T. 19.4.2016
CASE : At the end of the trial of the case between the parties, the judgment given by the local court, dated and numbered above, was appealed by the plaintiff-cross-defendant man for the acceptance of the woman’s lawsuit, the determination of fault, the poverty alimony and damages and attorney’s fee ruled in favor of the woman; and by the defendant-cross-defendant woman for the acceptance of the man’s lawsuit, the amounts of damages and alimony ruled in favor of the man, the documents were read and discussed:
DECISION : From the scope of the whole file and the collected evidence; it is understood that the plaintiff-counter-defendant man expelled and threatened his wife’s mother by saying “take your daughter out of the house, otherwise I will kill her”, and that the plaintiff-counter-defendant man is completely at fault, and the existence of a fault attributable to the defendant-counter-defendant woman cannot be proved.
Article 166 of the Turkish Civil Code No. 4721 should not be interpreted and evaluated in a way that the spouse who is completely at fault can also file a lawsuit and obtain a divorce judgment in his/her favor. Because such an idea would be contrary to the basic principle of law that no one can obtain a right based on his/her own action and his/her own fault. On the other hand, such an idea would lead to a divorce against our system with a unilateral will. The person who wants to obtain a divorce may, without any action or behavior of the other party, shake the union of marriage to such an extent that it cannot be expected to continue, and then, since the union has now been shaken, he/she may request a judgment to be established in the direction of divorce. Thus, according to Article 166 of the Turkish Civil Code, in order to request a divorce, it is not necessary to be completely flawless or slightly flawed, and even the party who is more flawed has the right to sue, but in order to decide on divorce, it is inevitable that the defendant has a slight fault and it is inevitable to determine this. If the spouse with less fault opposes the divorce, even the determination of this situation alone cannot be sufficient for a divorce to be granted. The opposition of the spouse with less fault must be an abuse of right and it must be understood that there is no benefit worth protecting for the spouse and children ( Article 166/2 of the Civil Code).
According to the facts, it is undoubted that the marriage union has been shaken from its foundations to the extent that its continuation cannot be expected from the spouses. However, reaching this conclusion is entirely due to the attitudes and behaviors of the plaintiff-cross-defendant and no fault attributable to the defendant-cross-defendant has occurred. In this case, for the reasons explained, while the divorce case of the plaintiff-counter-defendant man should be rejected, it is against the procedure and the law to decide for divorce by making a mistake in the interpretation of the provisions of the law.
CONCLUSION : It was unanimously decided on 19.04.2016 that the appealed judgment shall be DISMISSED for the reason shown above, the appellate objections regarding the woman’s case, which has become necessary to establish a new judgment according to the reason for the reversal, and the other objections of the parties shall not be examined for the time being, and the pre-appeal fee shall be returned to the depositors if requested, and the way of decision correction shall be open within 15 days from the notification of this decision.