THINGS TO CONSIDER IN A DIVORCE CASE DUE TO ADULTERY
POINTS TO CONSIDER IN A DIVORCE CASE DUE TO ADULTERY
The grounds for divorce regulated in the Turkish Civil Code are classified in different ways. Primarily, divorce grounds are divided into two: special grounds for divorce and general grounds for divorce. The special grounds for divorce regulated in the Turkish Civil Code are as follows: Adultery, Attempt on Life, Extremely Bad Treatment, Dishonorable Conduct, Committing a Crime, Living a Dishonorable Life, Desertion, and Mental Illness.
A divorce case due to adultery is considered one of the special grounds for divorce in accordance with the provision of Article 161 of the Turkish Civil Code. If one of the spouses commits adultery, the other spouse may file for divorce. The right to file a lawsuit expires six months after the spouse who has the right to sue learns of the grounds for divorce, and in any case, five years after the act of adultery occurs. The party who grants forgiveness does not have the right to sue. Adultery, regulated within the scope of the Turkish Civil Code, is a special ground for divorce, and the existence of the principle of fault is sought in these cases. First and foremost, a marital union must have been established between the spouses based on marriage. With marriage, there are obligations that the parties have towards each other in the marital union established between them.
Namely; to ensure the happiness of the marital union through mutual effort, to care for the maintenance, education, and supervision of children, to live a happy life together, and to assist one another.
The term loyalty is expressed in our law as a sincere, solid, and strong commitment. The fundamental purpose of marriage and the most important subject matter is the obligation of the spouses to act with loyalty towards each other. With marriage, the obligation of sexual loyalty is also established between the spouses. The violation of the obligation of sexual loyalty within the marital union between spouses brings with it the right of the other spouse to file for divorce due to adultery. Adultery is a universal ground for divorce and is the greatest insult and disloyalty committed against the marital union. Adultery, which is one of the special grounds for divorce, is also an absolute ground for divorce. Relying on the ground of adultery in a divorce case, if the existence of adultery is proven, results in a divorce decree being granted regardless of the state of the marital union. The issue that must be clearly considered in absolute grounds for divorce is that the marital union has been shaken to its core and it is certain that the continuation of the marital union can no longer be expected from the parties after the incident of adultery. The principle of fault is taken as the basis in a divorce case due to adultery. Three conditions must be met to file a divorce case due to adultery. Namely; the marriage condition, the sexual intercourse condition, and the fault condition. In a divorce case due to adultery, primarily, a real marriage contract must have been established. For example, it is not applicable during the engagement period, in marriage-like living models, in religiously sanctioned marriages, or in post-marriage relationships. The conditions of the sexual intercourse requirement have been explained by the Court of Cassation within the framework of examples. In order to file a divorce case due to adultery, one of the spouses must have knowingly and willingly engaged in sexual intercourse with someone other than their spouse, of the opposite or same sex. Behaviors considered as adultery are accepted in Court of Cassation decisions and practice as follows: sexual intercourse with any person is accepted as adultery. Sexual intercourse with a heterosexual, bisexual, homosexual, gay, lesbian, transsexual, or transvestite is accepted as adultery. Regardless of how the sexual intercourse is established, every sexual intercourse established through natural or unnatural means is also accepted as adultery. Behaviors not considered as adultery in the Court of Cassation's sample precedent texts are as follows: sexual intercourse with an animal, sexual intercourse with a corpse, sexual intercourse with a sexual object, and artificial insemination are not accepted as adultery. The principle of fault is important in a divorce case due to adultery. In order to file a divorce case due to adultery, the spouse who committed adultery must be found at fault. First of all, in a divorce case due to adultery, it is required that the sexual intercourse occurred knowingly and willingly. A woman who has been raped by force, by being given drugs, or by being rendered unconscious cannot be considered at fault. In the case of rape of a woman, since the fault condition is not met, a divorce case cannot be filed based on adultery. The most important issue in a divorce case due to adultery is the point of proof. In a divorce case due to adultery, adultery can be proven by any kind of evidence. However, this proof must be at a level that leaves no room for doubt. In the established case law of the Court of Cassation, staying in the same hotel room without any necessity with a person who is not a close relative of the opposite sex is accepted as behavior considered as adultery. In another Court of Cassation decision, staying alone in the same house without any necessity with a person who is not a close relative of the opposite sex or letting that person into the house is accepted, as a rule, as behavior considered as adultery. In a noteworthy decision of the Court of Cassation, being caught with someone else in the residence while the spouse was working the night shift is accepted as behavior considered as adultery. The burden of proof in a divorce case due to adultery lies with the plaintiff. Issues that may assist in providing proof are regulated as follows: in divorce cases due to adultery, the wife of a husband who is abroad being pregnant, the wife of an infertile husband being pregnant, or the wife of a missing husband being pregnant are among the means of proof. Furthermore, contracting a venereal disease also creates a presumption that one of the spouses has committed adultery. In divorce cases due to adultery, photographs are accepted as being of a nature to prove the act of adultery. In addition to all these, hotel records, letters, phone records, voice recordings, camera recordings, social media posts, witness testimonies, and pregnancy tests are used as evidence in divorce cases due to adultery as a means of proof.
There are two situations that eliminate the right to file a divorce case due to adultery. The first of these is the statute of limitations, and the other is the situation of forgiveness. In a divorce case due to adultery, the right to file a lawsuit expires six months after the woman and husband who have the right to sue learn of the grounds for divorce, and in any case, five years after the act of adultery occurs. In a divorce case due to adultery, if the act of adultery is forgiven, the right to file a lawsuit based on this ground ceases to exist. The act of forgiveness is not subject to a written formality requirement. The act of forgiveness can be performed in a written, verbal, implicit, or explicit manner.