The Party Drawing The Notice Of Return Is Deemed To Have Forgiven His/Her Spouse’s Faults Before The Notice
2nd Civil Chamber
Principal Number: 2020/2125
Decision Number: 2020/3438
“Case Law Text”
COURT :Family Court
TYPE OF CASE :Mutual Divorce
At the end of the trial of the case between the parties, the judgement given by the local court, dated and numbered above, was appealed by the defendant-counterclaimant woman in terms of fault determination, and the documents were read and discussed accordingly:
The plaintiff-cross-defendant man filed a divorce case based on Article 166/last of the Turkish Civil Code on 04.09.2014, and the defendant-cross-defendant woman filed a counter divorce case based on Article 166/1 of the Turkish Civil Code on 21.10.2014. While the proceedings were continuing, the plaintiff-counter-defendant man passed away on 01.12.2014. The lawsuit was continued by …, one of the heirs of the plaintiff-counter-defendant male, in terms of fault determination in accordance with Article 181/2 of the Turkish Civil Code, and as a result of the trial held by the court, the decision given by the court to accept the lawsuit and the counterclaim but not to decide on this issue since the marriage ended with death was appealed by the defendant-counter-defendant female.
28.02. 2019 dated 28.02.2019, 2019/927 main – 2019/1900 decision numbered, by stating that the judgement was made contradictory within itself by deciding both to accept the divorce cases in the judgement part of the reasoned decision of the court and to decide that there is no place to make a decision on this issue since the marriage union has ended with death, Since the marriage union has ended with death, it has been decided to revise the judgement in order to make a decision that there is no need to decide on the divorce cases, and to make a decision on this issue since the case is continued by the heirs of the deceased in terms of fault determination.
As a result of the trial held by the court in accordance with the reversal, with the decision dated 12/09/2019, it was decided that since the marriage union ended with death, it was not necessary to decide on the divorce request, and it was decided to determine that both parties were equally at fault in the events that caused the divorce, and the judgement was appealed by the defendant-counterclaimant woman.
The divorce case, which was previously seen between the parties and which constitutes the basis of the present divorce case filed by the plaintiff-counter-defendant deceased man based on Article 166/last of the Turkish Civil Code, is a divorce case based on the legal ground of abandonment regulated in Article 164 of the Turkish Civil Code filed by the man, and the divorce case based on the legal ground of abandonment regulated in Article 197 of the Turkish Civil Code filed by the woman.
As a result of the trial held by the court, it was decided to dismiss the divorce case of the man based on abandonment on the grounds that the notice of abandonment was not in accordance with the procedure, and to partially accept the combined action for injunctive alimony on the grounds that the woman was right to live separately, and the judgement was finalised on 15.09.2009 after the appellate review.
It is understood that the plaintiff-cross-defendant deceased man sent a notice of return home to the defendant-cross-defendant woman on 20/12/2005 in the underlying divorce file and asked her to return to the common residence. This situation is a declaration of will that the wife’s misconduct before the date of the notice request is forgiven or at least tolerated and therefore she wishes to live together again.
Events that are forgiven or tolerated cannot be a reason for divorce. It is understood that the plaintiff-counter-defendant deceased man forgave his wife’s faults before the notice in this way, that the parties did not come together after the notice date, and that the existence of a new event that could cause divorce arising from the defendant-counter-defendant woman could not be proved. In this case, instead of deciding to determine that the surviving spouse (defendant-counterclaimant woman) has no fault that would cause divorce, it was not correct to make a decision in writing and required a reversal.
CONCLUSION:
It was unanimously decided that the appealed judgement shall be DISMISSED for the reason shown above, the pre-appeal fee shall be returned to the depositor upon request, and the way of correction of the decision shall be open within 15 days from the notification of this decision. 29.06.2020 (Mon.)
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