Can the Spouse, Who Is Completely Defective, File for Divorce
Divorce; Article 161 of the Turkish Civil Code. it is a type of lawsuit that can be filed with the realization of one of the reasons specified in the articles and listed in the law or with the agreement of the parties. The reasons for divorce listed in the law are the reasons that are explained by the defective behavior of the spouses.
Within the marriage union, spouses have obligations such as loyalty obligations to each other, duty of care obligations, obligation to participate in union expenses.
Behaviors such as the spouse committing violence against the other spouse, making insults, lying constantly, avoiding sexual intercourse, humiliating behaviors, committing adultery, not participating in family union expenses are classified as defects while the marriage union is in progress.
In order to file for divorce, the spouse who filed for divorce does not have to be perfect or slightly imperfect. The defective spouse can also file for divorce, but if the plaintiff’s defect is severe, the defendant has the right to appeal the filed divorce case, and the defendant spouse must have a slight defect. In cases where the defendant is completely flawless, the case of the defective spouse who filed the case must be dismissed.
166 of the Turkish Civil Code. in its article, it is stipulated that “if the marriage union is shaken from its foundation to such an extent that they are not expected to maintain a common life, each of the spouses can file for divorce”. It is not considered correct to interpret and evaluate this provision by the decisions of the Supreme Court in such a way that a completely defective spouse can also file a lawsuit and obtain a divorce provision for his benefit. Because such an idea would be contrary to the basic legal principle that no one can obtain a right based on their own actions and purely on their own fault.
The Supreme Court’s Decision on the issue is as follows;
T.C.YARGITAY2. IT’S THE LAW OFFICE. 2016/17889K. 2016/13836T. 17.10.2016
ABSTRACT : Article 166 of the Turkish Civil Code No. 4721. according to the article, in order to request a divorce, there is no need to be completely perfect or less imperfect, and even the party who is more defective has the right to sue, but in order for a divorce to be decided, the defendant has a slight defect and it is inevitable that it will be determined. If the less defective spouse opposes the divorce, even the determination of this state cannot be enough to make a divorce decision alone. The opposition of a less defective spouse should be an abuse of the right, it should be understood that there is no benefit worth protecting for the spouse and children. According to the current events, it is undoubtedly that the marriage union has been shaken from its foundation to such an extent that its continuation is not expected from the spouses. However, the achievement of this result was entirely due to the plaintiff’s attitude and behavior, and no defects attributable to the defendant were realized. In this case, while the request should be rejected for the reason described, it is contrary to the procedure and the law to decide on a divorce by making a mistake in the interpretation of the provisions of the law.
CASE: At the end of the trial between the parties, the judgment given by the local court, the date and number shown above, was considered by the defendant male; defect determination, financial and moral compensation ruled in favor of the woman, as well as alimony for poverty, rejected claims for compensation were appealed, documents were read and discussed as Dec:
Decision : 1 )the court, the plaintiff against the defendant of physical violence and insulting a woman by the man’s wife completely flawed grounds for divorce is accepted, the collected evidence; Man partner violence in 2010, where the decision is made to convict, after this action, the marriage is understood to continue. It is necessary to accept that this act of the defendant man was forgiven by the plaintiff woman, at least it was met with leniency. The existence of another defect attributable to the defendant man could not be proven. The statements of the plaintiff woman’s witnesses are based on sensation from the plaintiff woman. The plaintiff woman who insulted her husband in the last incident is completely flawed in the events that caused the divorce.
166 of the Turkish Civil Code No. 4721. in its article, it is stipulated that “if the marriage union is shaken from its foundation to such an extent that they are not expected to maintain a common life, each of the spouses can file for divorce”. It is not correct to interpret and evaluate this provision in such a way that the completely defective spouse can also file a lawsuit and obtain a divorce provision for his benefit. Because such an idea would be contrary to the basic legal principle that no one can obtain a right based on their own actions and purely on their own fault. On the other hand, such a thought again reveals the phenomenon of divorce that is contrary to our system by unilateral will. Any action against people who want to get a divorce and behavior, without question, the marriage is expected to continue, such as Shake It Up, and since then the Union may request the establishment in accordance with the terms of the divorce will no longer shaken. If so, Article 166 of the Turkish Civil Code. according to the article, in order to request a divorce, there is no need to be completely perfect or less imperfect, and even the party who is more defective has the right to sue, but in order for a divorce to be decided, the defendant has a slight defect and it is inevitable that it will be determined. If the less defective spouse opposes the divorce, even the determination of this state cannot be enough to make a divorce decision alone. The opposition of a less defective spouse should be an abuse of the right, it should be understood that there is no benefit worth protecting for the spouse and children (TMK m. 166/2 ).
According to the current events, it is undoubtedly that the marriage union has been shaken from its foundation to such an extent that its continuation is not expected from the spouses. However, the achievement of this result was entirely due to the plaintiff’s attitude and behavior, and no defects attributable to the defendant were realized. In this case, while the request should be rejected for the reason described, it is contrary to the procedure and the law to decide on a divorce by making a mistake in the interpretation of the provisions of the law. However, since this direction was not appealed, the reason for the violation was not made, and the inaccuracy was addressed.
2- )Above 1. as shown in the paragraph, the plaintiff woman is completely defective in the events that caused the divorce. Depending on the court’s full acceptance of the man’s defect without regard to this issue and its determination of this erroneous defect, the defendant will receive poverty support in favor of the woman (TMK m.175 ), with material and non-pecuniary compensation ( TMK m.174/1-2 ) it was not right to be appreciated and required to be distorted.
3- ) 174/1 of the Turkish Civil Code No. 4721. article 186 A perfect or less imperfect party whose existing or expected interest is rendered invalid by divorce may seek appropriate financial compensation from the defective party. the article stipulated that the spouses would choose the house together and that they would participate in the expenses of the union with their labor and property assets at the rate of their power. From the collected evidence, it becomes clear that the spouse who seeks financial compensation for the events that caused the divorce is not more likely and equally defective than the other. As a result of the divorce, this spouse has lost at least the financial support of the other. In that case, the court shall determine the social and economic status of the parties, as well as their defects and the principle of fairness (TMK m.4., TBK m. 50 and 52 ), taking into account that an appropriate amount of material compensation should be provided for the benefit of the defendant male. It was not considered correct to ignore this aspect.
4- ) 174/2 of the Turkish Civil Code No. 4721. the article stipulated that the party whose personality rights have been attacked due to the events that caused the divorce may seek moral compensation from the defective one. From the collected evidence, it is understood that the defendant man who seeks compensation for the events that caused the foundation of the marriage union to be shaken is not severely or equally defective, these events constitute an attack on his personality rights. In that case, the court shall determine the social and economic situation of the parties, the weight of the act based on compensation and the rules of equity (TMK m. 4, TBK m. 50, 51, 52, 58 ), taking into account that the appropriate amount of non-pecuniary compensation should be awarded for the benefit of the defendant male. It was not considered correct to ignore this aspect.
CONCLUSION : The above 2nd part of the appealed provision. 3. and 4. it was decided unanimously on 17.10.2016 that it would be BROKEN for the reasons shown in the paragraphs, if requested, the refund of the fee in advance of appeal to the depositor, within 15 days from the notification of this decision, the way to correct the decision would be open.
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