A Woman’s Decision To Sleep Separately And Divorce
Republic of Turkey
COURT OF CASSATION 2nd Civil Chamber Case No. :2016/6774
Decision No. :2016/9063
Date of Decision: 05/04/2016
SUPREME COURT DECISION
COURT: Family Court
CASE TYPE: Divorce
Following the trial of the case between the parties, the judgment rendered by the local court, dated and numbered as indicated above,
was appealed by the plaintiff woman via a motion to join the appeal dated 04/21/2015
and regarding the amount of compensation and alimony; the defendant man, however,
appealed the entire judgment. The case file was reviewed, and the matter was thoroughly considered:
1-Since it was established that the defendant’s counsel’s appeal petition was served on the plaintiff’s counsel on March 11, 2015,
and the plaintiff’s counsel filed an appeal via joinder within the ten-day statutory period by a petition dated March 20, 2015,
it is accepted that the plaintiff’s appeal was filed within the time limit;
it is necessary to decide to overturn and set aside the supplementary decision dated April 21, 2015,
rejecting the appeal request.
2-Regarding the review conducted specifically on the grounds of appeal;
a-Based on the documents in the file, the evidence and legal grounds upon which the decision was based, and particularly the fact that the plaintiff
woman separated from her husband and failed to fulfill her marital duties, yet despite the woman’s
behavior, the defendant man was found to have acted with greater fault than the plaintiff woman
in the events leading to the divorce, as determined by the court and based on his own
faulty conduct; therefore, all of the defendant man’s appeals and those of the plaintiff woman
outside the scope of the following paragraph are without merit.
b-Considering the parties’ established economic and social circumstances, the degrees of fault in the events leading to the divorce,
the purchasing power of money, the violation of personal rights, and the current and expected
interests that have been infringed upon, the material and moral compensation awarded in favor of the plaintiff woman is insufficient. Turkish
Civil Code’s principle of equity under Article 4 and the provisions of Articles 50 and 52 of the Turkish
Code of Obligations, a more appropriate amount of material (TMK Art. 174/1) and moral (TMK Art. 174/2)
compensation must be awarded. The judgment was not deemed correct as these aspects were not considered.
CONCLUSION: The appealed judgment is REVERSED for the reason stated in paragraph 2-b above; the remaining portions of the appeal not covered by the reversal are AFFIRMED for the reason stated in paragraph 2-a above;
the costs specified below are to be borne by the defendant; the advance fee is to be credited; and since the appeal fee of 136.00 TL
since the appeal filing fee of 136.00 TL has been paid in advance, no further fees shall be collected; upon request,
the advance appeal fee paid by the plaintiff shall be refunded; and it is hereby decided by unanimous vote that the right to seek a correction of this decision
shall remain open within 15 days from the date of service of this decision. 04.05.2016