Does A Husband’s Relationship With Another Woman Constitute An Assault On Personal Rights And Give Rise To A Claim For Moral Damages?
The marital union established between the parties is terminated by a court decision upon divorce. The rights arising from the termination of the marriage due to divorce (material and moral compensation, alimony) may be claimed together with the divorce case or by filing a separate lawsuit within one year from the date the divorce decision becomes final.
According to Article 174/2 of the Turkish Civil Code No. 4721, the party whose personal rights have been violated due to the events leading to the divorce may request an appropriate amount of money as moral damages from the other party at fault.
Moral damages are a form of satisfaction (or compensation) accepted to restore the disturbed moral balance, and moral damages are awarded if the events causing the divorce constitute an attack on personal rights.
In a marriage, the husband’s adultery with another woman is considered an infringement of personal rights within the meaning of Article 174/2 of the Turkish Civil Code. Therefore, as a result of the husband’s adultery with another woman, the aggrieved spouse has the right to claim moral damages from her husband in a lawsuit filed together with the divorce case or after the divorce case.
The relevant Supreme Court decision is as follows:
SUPREME COURT GENERAL ASSEMBLY E. 2010/0K. 2010/220K. T. 14.4.2010
“(…1-Based on the documents in the file, the evidence on which the decision is based, and the legal grounds, and in particular, the fact that it is not possible to award attorney’s fees in favor of the claimant for the amount accepted and in favor of the other party for the amount rejected in the event of the acceptance or rejection of the compensation claims sought as a consequence of the divorce within the divorce case, the plaintiff’s appeal is unfounded, except for the following paragraph.
2-Considering the parties’ established economic and social circumstances, the purchasing power of money, the degrees of fault, and especially the events constituting an attack on personal rights, the moral damages awarded in favor of the plaintiff woman are excessive.
In light of the principle of fairness in Article 4 of the Turkish Civil Code and Articles 44 and 49 of the Code of Obligations, it was necessary to award a more appropriate amount of moral damages (TMK174/2), and the ruling as written necessitated reversal…) The case was overturned on these grounds and remanded for retrial, at the end of which the court upheld its previous decision regarding moral damages.
APPELLANT: Defendant’s attorney
DECISION OF THE GENERAL ASSEMBLY OF LAW
After the General Assembly of Law reviewed the case and determined that the appeal against the decision to uphold the previous ruling was filed within the time limit and after reading the documents in the file, the following was decided:
The case concerns divorce, material and moral damages, and alimony.
The plaintiff’s (wife’s) attorney stated that the defendant (husband) had completely abandoned their shared life 2.5-3 years ago and had begun living with another woman as husband and wife, and that he had a child from this unofficial relationship. The attorney requested that the parties be divorced due to the fundamental breakdown of the marriage and that the court award the plaintiff 50,000 YTL (TL) in material damages, 150,000 YTL (TL) in moral damages, and alimony in favor of his client.
The defendant’s (husband’s) attorney stated that they did not accept the claims other than divorce, that their client was with a woman and had a child with her, that although the plaintiff was angry when she first learned of this relationship, she later accepted the situation with tolerance, and argued that the claims for alimony, material and moral damages should be rejected.
It is not disputed between the parties that the defendant husband lived with another woman as husband and wife and had a child with her.
The plaintiff’s claim for material compensation (related to the property regime) has been separated from this case.
The court’s decision to accept the plaintiff’s divorce case, partially accept the moral damages case, and reject the alimony case was overturned by the Special Chamber on appeal by the parties’ attorneys for the reasons stated above regarding moral damages, and the court upheld its previous decision regarding moral damages.
The rulings between the parties regarding divorce, custody, personal relations, poverty, and joint alimony have become final and are not in dispute.
The dispute brought before the General Assembly of the Court of Appeals through the appeal process centers on whether the amount of 75,000 YTL (TL) in moral damages awarded to the plaintiff woman is excessive, considering the financial circumstances and fault ratios of the parties.
According to Article 174/2 of the Turkish Civil Code No. 4721, the party whose personality rights have been violated due to the events leading to divorce may request an appropriate amount of monetary compensation as moral damages from the other party at fault.
Moral damages are a form of satisfaction (or compensation) accepted to restore the disturbed moral balance, and moral damages are awarded when the events causing the divorce constitute an attack on personal rights (Kılıçoğlu, Mustafa: Tazminat Hukuku [Law of Damages], Legal Yayıncılık, Istanbul 2010, pp. 1036, 1369; Reisoğlu, Safa: General Provisions of the Law of Obligations, Beta Basım, Istanbul 1998, p.179 et seq.; Oğuzman/Dural: Family Law, Filiz Kitabevi, Istanbul 1994, pp.144-145; Tekinay, S.Sulhi: Turkish Family Law, Filiz Publishing House, Istanbul 1990, pp. 261-262; Oğuzman, Kemal: General Provisions of Contract Law, Filiz Publishing House, Istanbul 1995, p. 641; See also YİBK.22.06.1966-7/7)
When a husband cheats on his wife with another woman, in cases of serious insult, it is accepted that there is an attack on personal rights. (Kılıçoğlu, Mustafa: Law of Damages, Legal Yayıncılık, Istanbul 2010, p.1031 et seq.; Reisoğlu, Safa: General Provisions of the Law of Obligations, Beta Basım, Istanbul 1998, pp.183-184; Oğuzman/Dural: Family Law, Filiz Publishing House, Istanbul 1994, p.145; Tekinay, S.Sulhi: Turkish Family Law, Filiz Publishing House, Istanbul 1990, p.262; Oğuzman, Kemal: op. cit., p.655)
It is established from the entire file that the defendant husband cheated on his wife with another woman, and the marriage has therefore ended. The plaintiff wife cannot be blamed for the events that led to the divorce.
Therefore, the amount of moral damages awarded in proportion to the defendant husband’s financial situation, as evidenced by the documents in the file, is appropriate, and the decision to uphold the appeal, which is in accordance with the procedure and the law, must be confirmed.
CONCLUSION
The defendant’s attorney’s appeal objections are rejected, and the decision to uphold the appeal is CONFIRMED for the reasons stated above. Since the necessary appeal fee has been paid in advance, there is no need to collect any further fees. This decision was made by majority vote on April 14, 2010.