Does the Duty of Fidelity Between Spouses End After Filing for Divorce?
Does the Spousal Duty of Loyalty End After Filing for Divorce?
In this article, I would like to discuss the debate over whether the duty of loyalty between spouses continues after a divorce case has been filed. The duty of loyalty is regulated in the first section of the third chapter of the Turkish Civil Code, titled "General Provisions of Marriage," which covers "Rights and Obligations."
GENERAL PROVISIONS OF MARRIAGE
A. Rights and obligations
Article 185- A matrimonial union is established between spouses upon marriage.
Spouses are obliged to ensure the happiness of this union through joint effort and to jointly care for the maintenance, education, and supervision of their children.
Spouses are obliged to live together, remain loyal to one another, and provide mutual support.
In the matrimonial union established by marriage, there is a duty for spouses to remain loyal to each other until their marriage ends.
As a rule, it is not considered appropriate for spouses to establish emotional bonds or engage in relationships with others until the marriage is terminated. A party who violates this rule during the marriage is considered at fault.
The termination of a matrimonial union does not occur solely through divorce. The death of one of the spouses, their declaration of absence, or a change of gender by one of the spouses also terminates the marriage. In this article, we are discussing the duty of loyalty spouses owe to each other until the matrimonial union is terminated by divorce.
One or both spouses apply to the Family Court to file for divorce, and the divorce process begins. Even if the spouses have expressed their intent to divorce, the divorce may not occur as a result of the initiated process—parties may abandon their intent to divorce during the proceedings, the judge may rule for separation, or the judge may not grant the divorce at all. For these reasons, the parties are considered officially married until the court's decision regarding the spouses' divorce becomes final. Even though the divorce process has begun, the duty of loyalty between the spouses continues. If one spouse forms an emotional bond or engages in a relationship with someone else, they will have violated their duty of loyalty.
The Court of Cassation holds two different views on this matter. The first view states: "The spouses' duty of loyalty continues not only during the marriage but also after a divorce case is filed." According to this view, spouses are obligated to remain loyal to each other even after filing for divorce. In fact, in many of its decisions, the Court of Cassation considers the violation of the duty of loyalty after the filing of a divorce case as grounds for increased fault. Any behavior by the parties while the divorce case is ongoing is effective in determining their fault status. Spouses who engage in emotional or sexual unions with someone else during the divorce case are considered "at fault." As a result of these faulty behaviors, the at-fault spouse is required to pay compensation to the other party. They may even face adverse rulings regarding alimony and the custody of the children.
The second view of the Court of Cassation is: "The spouses' duty of loyalty ends after a divorce case is filed." If spouses commit acts of disloyalty against each other after the date of the lawsuit, these faulty behaviors are not taken into account in the case. According to this view, spouses are not obligated to comply with the duty of loyalty after the lawsuit is filed. Parties whose duty of loyalty to their spouse has ceased may form emotional or sexual unions with whomever they wish. This situation cannot be made the subject of the lawsuit, and the spouses are not considered at fault for these actions.
In our article above, I have tried to summarize both the principle of loyalty as established by the Civil Code as a rule and the differing views of the Court of Cassation on this matter. The word "loyalty" means sincere devotion. I humbly advise all married couples to remain sincerely devoted to one another as long as they are married, and I wish you healthy, happy, and peaceful days.