Defendant’s Heirs Have The Right To Continue The Lawsuit – The Waiver Of The Plaintiff Will Not Be Effective – Determination Of The Fault Status Of The Parties
T.C. JUDICIARY
2nd Civil Chamber
Main: 2016/13586
Decision: 2016/12490
Date of Decision: 28.06.2016
DIVORCE CASE – THE DEFENDANT’S HEIRS HAVE THE RIGHT TO CONTINUE THE CASE – THE PLAINTIFF’S WAIVER WILL NOT BE EFFECTIVE – THE PARTIES’ FAULT STATUS SHOULD BE DETERMINED – REVERSAL OF THE JUDGMENT
SUMMARY: The defendant’s heirs have the right to continue the lawsuit. Therefore, the waiver of the plaintiff does not have any effect. Therefore, while the court should determine the fault status of the parties in accordance with Article 181/2 of the Turkish Civil Code, the decision was contrary to the procedure and the law and required a reversal.
(Art. 166, 181 of 4721 Turkish Civil Code)
Case and Judgment: 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 defendant (heirs), the documents were read and discussed accordingly:
The plaintiff man filed this lawsuit on 18.09.2012 pursuant to Article 166/last of the Turkish Civil Code and the defendant woman died on 23.04.2014. The defendant woman’s heirs continued the lawsuit in terms of fault in accordance with Article 181/2 of the Turkish Civil Code. The court ruled that there is no room for a decision against this request of the heirs of the defendant woman, on the grounds that the right of the legal heirs to continue the lawsuit in terms of fault pursuant to Article 181/2 of the Turkish Civil Code is legally recognized only for the heirs of the plaintiff. With the decision of our Chamber dated 03.12.2015 and numbered 2015/6839 main and 2015 23004 decision, the first decision was reversed on the grounds that in case of the death of one of the parties, the right to continue the lawsuit in terms of fault is legally granted to the heirs of both parties (TMK.art. l81/2) and that a positive or negative decision should be made about the requests of the defendant female heirs regarding fault. After the reversal, the male plaintiff waived his lawsuit on 25.03.2016. The marriage union ended with death before the plaintiff waived the lawsuit. The defendant’s heirs have the right to continue the lawsuit according to Article 181 of the Turkish Civil Code. Therefore, the waiver of the plaintiff does not take effect. Therefore, while the court should determine the fault status of the parties in accordance with Article 181/2 of the Turkish Civil Code, the written decision is contrary to the procedure and the law and requires reversal.
Conclusion It has been decided by majority of votes that the appealed judgment shall be DISMISSED for the reason shown above, the pre-appeal fee shall be returned to the depositor upon request, and the way of decision correction shall be open within 15 days from the notification of this decision. 28.06.2016
DISSENTING OPINION
Pursuant to Article 181/2 of the Turkish Civil Code, if one of the heirs of the deceased spouse continues the lawsuit while the divorce case is pending and the fault of the other spouse is proven, the surviving spouse cannot be the legal heir of the deceased spouse and loses the rights provided to him/her by the testamentary dispositions made before the divorce, unless the contrary is understood from the disposition.
The most important condition for the heirs of the deceased spouse to exercise their rights regulated under Article 181/2 of the Turkish Civil Code is the existence of a divorce case filed during the health of the deceased and continuing after his/her death.
According to Article 181/2 of the Turkish Civil Code, the rights and powers of the heirs of the deceased spouse are limited to the rights and powers granted to them as plaintiff or defendant in the health of the deceased.
The case at hand was filed by the surviving spouse. There is no divorce case filed by the deceased spouse. However, the plaintiff has expressly waived the main lawsuit.
A waiver is the partial or complete relinquishment of the claim by the plaintiff (Art. 307-(1) of the CCP). It can be made at any time until the judgment becomes final (Art. 310-(1) CCP). It does not depend on the consent of the other party and the court (Art. 309-(2) CCP). It has legal consequences like a final judgment (Art. 311-(1) of the CCP).
With the waiver of the lawsuit by the plaintiff, the dispute subject to the lawsuit ends. As a rule, any lawsuit can be waived. Because, no one can be forced to file a lawsuit in his/her favor, nor can he/she be forced to pursue the lawsuit he/she has filed until the end. Even if the parties do not have the power of disposition over the subject matter of the lawsuit (i.e. in cases where the principle of disposition is not fully applied), the plaintiff may waive the lawsuit. For example, even if the acceptance of the divorce case does not give rise to the legal consequences of the final judgment (Art. 303), the plaintiff may waive the divorce case and the divorce case will be terminated. (Prof. Dr. Baki Kuru-Prof. Dr. Ramazan Arslan-Prof. Dr. Ejder Yılmaz, Civil Procedural Law Textbook, 22nd edition, page: 529)
In the concrete case, there is no longer a case for the defendant’s heirs to continue. This is because the waiver of the plaintiff is a party transaction that puts an end to the lawsuit and has the legal effect of a final judgment.
If the defendant muris was alive, the plaintiff would be able to waive his/her lawsuit with his/her free will and this waiver would have the same legal effect as a final judgment without the consent of the court and the defendant, and the same legal situation remains valid after the death of the defendant. The law gives the plaintiff the right to waive his/her claim until the judgment becomes final. This right cannot be taken away from the plaintiff after the death of the defendant.
If the plaintiff had waived his/her claim before the death of the deceased, the court would have to decide in the same way, and if the plaintiff waives his/her claim after the death of the defendant, the court must decide in the same way.
It is contrary to the general principles of procedure, law and law to continue the proceedings despite the waiver, to determine fault and to expose the plaintiff to an extremely severe consequence (the consequence of not being the heir of his spouse), which the plaintiff can only face as a result of a marriage annulment or divorce decision.
In the concrete case, since the plaintiff clearly, unconditionally and unconditionally waived the lawsuit, the court’s decision to dismiss the lawsuit due to waiver is correct. The judgment should be upheld.
For these reasons, I do not agree with the opinion of the majority that the judgment should be reversed.
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