Compensation in Divorce Proceedings Under Turkish Law: Pecuniary and Non-Pecuniary Damages
The dissolution of a marriage creates not only fundamental changes in the personal status of the spouses, but also profound shifts in their economic and financial circumstances. Getting a divorce in a foreign country through procedures established by that country’s legal system only compounds these difficulties. In divorce under Turkish law, the distribution of marital assets, alimony, and pecuniary and non-pecuniary damage claims represent the three principal financial matters to be adjudicated. Of these, claims for pecuniary damages and non-pecuniary damages in divorce in Turkey hold a primary place as legal instruments aimed at remedying the harm suffered by the injured party as a result of the breakdown of the marriage.
The Concept of Compensation and Its Legal Basis Under Turkish Law
Under Turkish Law, compensation, in general terms, refers to the remedy of a diminution (loss) in a person’s assets or personal rights resulting from an unlawful act. Compensation in divorce proceedings under Turkish family and divorce law, however, constitutes a sui generis institution arising from family law relations, representing a specific manifestation of tort liability.
The primary legal basis for pecuniary and non-pecuniary damage claims in divorce proceedings is Article 174 of the Turkish Civil Code (TCC) No. 4721:
“V. Compensation and alimony upon divorce 1. Pecuniary and non-pecuniary damages
Article 174 — The party who is faultless or less at fault, and whose existing or prospective interests are damaged as a result of the divorce, may claim appropriate pecuniary compensation from the faulty party.
The party whose personal rights are violated due to the events giving rise to the divorce may claim an appropriate sum of money as non-pecuniary damages from the other faulty party.”
Accordingly, the party who suffers loss as a result of the termination of the marital contract may claim pecuniary compensation from the faulty spouse, provided that the claimant is faultless or less at fault. Such compensation is directed solely at remedying the harm arising from the dissolution of the marriage. In addition, the spouse whose personal rights have been violated due to the events giving rise to the divorce may also pursue a claim for non-pecuniary damages. For example, a spouse who can establish that the other party insulted, physically assaulted, or threatened them in the context of the events leading to the divorce is entitled to bring a claim for non-pecuniary damages as well.
While the general tort rules set out in the Turkish Code of Obligations (TCO) (TCO Art. 49 et seq.) may apply by analogy to divorce compensation claims, certain important distinctions must be observed. Unlike the precise mathematical calculation possible for material loss under general tort liability in the TCO, it is not possible to calculate the loss of existing or prospective interests in divorce proceedings with equivalent precision. For this reason, the legislature employed the phrase “appropriate compensation,” thereby vesting the judge with broad discretionary authority.
Pecuniary Damages in Divorce Proceedings In Turkey
Pecuniary damages in divorce proceedings under Turkish Law refer to the compensation for the economic loss suffered by a spouse who, as a result of the dissolution of the marriage, is deprived of financial benefits they actually enjoyed during the marriage or would in all likelihood have enjoyed in the future had the marriage continued, that is, their existing and prospective interests.
Requirements for Claiming Pecuniary Damages In Divorce In Turkey
Pursuant to Article 174 of the TCC, the following conditions must be cumulatively satisfied for a court to award pecuniary damages in divorce proceedings:
The claimant spouse must be faultless or less at fault.
For an award of pecuniary damages under Turkish law, the claimant must either bear no fault for the breakdown of the marriage or be less at fault than the opposing party. In accordance with established Turkish Court of Cassation jurisprudence, “faultlessness” does not imply zero fault in an absolute sense; it is sufficient that the claimant does not bear fault of a degree capable of sustaining the divorce. It must be emphasized that where both parties are found to be equally at fault, the claim for pecuniary damages will equally be dismissed.
The respondent spouse must be at fault.
The party from whom compensation is sought must have engaged in culpable conduct contributing to the breakdown of the marriage.
Grounds for divorce under Turkish law refer to the facts and circumstances that led to the dissolution of the marital union. In divorce law in Turkey, grounds may be categorized as specific grounds or the general ground, and further distinguished as absolute or relative grounds. Specific grounds for divorce in Turkey are those individually enumerated by statute, namely: adultery; attempt on life and grossly humiliating conduct; commission of a crime and leading a dishonorable life; and mental illness. The general ground for divorce under Turkish law is the fundamental breakdown of the marital union. Absolute grounds for divorce in Turkey are those for which no separate proof that the marriage has become intolerable is required — proof of the underlying event alone is sufficient. Adultery, attempt on life and grossly humiliating conduct, and desertion all constitute absolute grounds. However, mental illness and commission of a crime and leading a dishonorable life are classified as relative grounds, meaning that a spouse relying on these grounds must additionally prove that continued cohabitation has become intolerable.
Among the absolute specific grounds: in proceedings based on adultery; on attempt on life and grossly humiliating conduct; and on desertion, there is no doubt that pecuniary damages will also be awarded in favor of the claimant spouse. By contrast, where divorce is sought on the relative specific ground of mental illness, an award of pecuniary damages is not possible, given that the mentally ill spouse lacks legal capacity and cannot be held personally liable in fault for their conduct. In proceedings based on the other relative specific ground — commission of a crime and leading a dishonorable life — pecuniary damages may be awarded in favor of the claimant.
The claimant’s existing or prospective interests must have been damaged as a result of the divorce.
Loss of existing interests under Turkish divorce law refers to the deprivation of economic benefits the spouse actually enjoyed during the marriage, such as housing, maintenance, and the material support of the other spouse. Loss of prospective interests refers to the forfeiture of advantages the spouse would in all likelihood have obtained had the marriage continued — for example, succession rights, entitlements arising from the other spouse’s social security and pension, and similar benefits.
There must be a causal link between the loss and the divorce.
An adequate causal connection must exist between the material harm suffered and the culpable conduct of the respondent spouse that gave rise to the divorce.
Determination of the Quantum of Pecuniary Damages In Divorce In Turkey
In calculating pecuniary damages in a divorce case in Turkey, the judge carefully assesses the circumstances of the parties in light of the specific facts of the case and exercises discretionary authority in accordance with the principle of equity. The principal criteria taken into account under Court of Cassation case law are as follows:
The economic and social standing of the parties. The parties’ incomes, assets, and standards of living are the primary considerations in calculating pecuniary damages.
The duration of the marriage and the ages of the parties. The loss of interests in a long marriage is assessed differently from that in a very short one; accordingly, the quantum of damages awarded upon the dissolution of a brief marriage will differ from that awarded following a marriage of many years.
The degree of fault and the gravity of the conduct. The apportionment of fault among the parties for the events that caused the harm has a bearing on the quantum of pecuniary damages to be awarded.
The prospects of remarriage or re-employment. Factors indicating how quickly the claimant spouse may restore their economic position — such as their prospects of finding employment or remarrying, assessed by reference to their age, educational background, and professional skills — are also taken into account.
Social security status. Matters such as the parties’ insurance policies, pension entitlements, and social assistance payments are likewise considered by the judge in the assessment of damages.
The principle of equity and Court of Cassation precedent. In determining the quantum of damages (TCC Art. 4), a sum is fixed that is consistent with law and equity — neither so high as to result in unjust enrichment nor so low as to leave the loss entirely uncompensated.
Form of Payment: Lump Sum or Periodic Installments
The court awarding pecuniary damages in a divorce case also has the power to determine the manner of payment. Pecuniary damages may, by judicial order, be paid either as a lump sum (in a single payment) or in the form of an annuity (in monthly, annual, or other periodic installments). Where periodic payment is ordered, the court may require the debtor to provide appropriate security.
Non-Pecuniary Damages In Divorce In Turkey
Non-pecuniary damages refer to the monetary award made to compensate a spouse for the profound grief, suffering, and psychological distress caused by the seriously culpable conduct of the other — such as insults, infidelity, or violence — during the divorce process. The purpose of non-pecuniary damages is not to enrich the injured spouse, but rather to provide some measure of redress for the harm done to their personal dignity and to restore, through a sense of satisfaction and consolation, the psychological balance that has been disrupted.
Requirements for Claiming Non-Pecuniary Damages In Turkey
Pursuant to Article 174(2) of the TCC: “The party whose personal rights are violated due to the events giving rise to the divorce may claim an appropriate sum of money as non-pecuniary damages from the other faulty party.” It follows that for a spouse to pursue a claim for non-pecuniary damages in divorce proceedings, the claimant’s personal rights must have been harmed by the events giving rise to the divorce, and the respondent spouse must bear fault for the divorce.
The personal rights of the claimant spouse must have been violated.
An award of non-pecuniary damages in divorce proceedings requires that the events giving rise to the divorce constitute an infringement of the claimant’s personal rights. The party whose personal rights have been harmed by the underlying events — which simultaneously serve as grounds for divorce and constitute an attack on the claimant’s personal integrity — is entitled to claim non-pecuniary damages. Grounds for divorce that constitute an infringement of the claimant’s personal rights include physical violence, adultery, grossly humiliating conduct, public degradation, and severe insults — in short, acts that injure a person’s physical, psychological, or social identity.
The claimant must be faultless or less at fault.
The same rule applicable to pecuniary damages applies here. The claimant must either bear no fault in the divorce or be found less at fault than the respondent. Where the parties are equally at fault, the claim for non-pecuniary damages will be dismissed.
The respondent spouse must be at fault.
For an award of non-pecuniary damages, the respondent must have engaged in conduct that was both causally responsible for the divorce and constituted an infringement of the claimant’s personal rights. Such conduct may take the form of a specific statutory ground for divorce — such as adultery, attempt on life, grossly humiliating conduct, or desertion — or may consist of behavior capable of constituting the general ground for divorce, such as economic abuse, insults, defamation, or public humiliation.
There must be a causal link between the infringement of personal rights and the events giving rise to the divorce.
For an award of non-pecuniary damages to be made, the moral suffering and violation of personal rights experienced must have been caused directly by the events that precipitated the divorce. For example, in proceedings based on adultery, the respondent’s infidelity causes distress and anguish to the claimant and constitutes a violation of the claimant’s personal rights.
Determination of the Quantum of Non-Pecuniary Damages In Divorce In Turkey
It is, of course, not possible to arrive at a precise mathematical calculation when determining the quantum of non-pecuniary damages in divorce proceedings. However, the Turkish Court of Cassation has established certain criteria to guide this assessment. In awarding non-pecuniary damages, the judge will have primary regard to: the nature and gravity of the violation of personal rights; the economic and social standing of the parties; the degree of fault of each party; and the principle of equity. Accordingly, the non-pecuniary damages awarded must be proportionate to the culpable conduct of the liable spouse, must not drive the paying party into financial ruin, and must not unjustly enrich the receiving party. The gravity of the respondent’s fault in bringing about the divorce, together with any contributory fault on the part of the claimant, are also taken into account in fixing the quantum of non-pecuniary damages. In addition to all of the foregoing, the judge determines a fair amount consistent with equitable principles and the prevailing economic conditions, including the purchasing power of money at the time of the judgment.
Payment of Pecuniary and Non-Pecuniary Damages Awarded in Divorce In Turkey
The manner in which pecuniary and non-pecuniary damages awarded in divorce proceedings are to be paid is governed by Article 176 of the TCC:
“3. Form of payment of compensation and alimony
Article 176 —
Pecuniary damages and poverty alimony may be ordered to be paid in a lump sum or, where the circumstances so require, in the form of an annuity.
Non-pecuniary damages may not be ordered to be paid in the form of an annuity.
Pecuniary damages or alimony ordered to be paid in the form of an annuity shall cease automatically upon the creditor’s remarriage or upon the death of either party; the court may, upon application, order the discontinuation of the annuity where the creditor is living with another person as though married without formally remarrying, where the creditor’s poverty has ceased, or where the creditor is leading a dishonorable life.
Where the financial circumstances of the parties change or equity so requires, the annuity may be increased or reduced by court order.
The court may, upon application, determine in its judgment the amounts to be paid in future years in the form of an annuity for pecuniary damages or alimony, based on the parties’ social and economic circumstances.”
Accordingly, like poverty alimony, pecuniary damages may be paid periodically — for example, on a monthly or annual basis. Non-pecuniary damages, by contrast, cannot be structured as periodic payments.
Bringing Compensation Claims in Divorce Proceedings In Turkey
Pecuniary and non-pecuniary damage claims under Turkish law may be advanced in divorce proceedings by two different procedural routes: either by joining them to the divorce petition itself, or by bringing a separate action after the divorce judgment has become final.
Claiming Pecuniary and Non-Pecuniary Damages Together with the Divorce Petition
A compensation claim may freely be raised in the divorce proceedings by including it in the statement of claim. Compensation claims may equally be advanced in a counterclaim or a defence and counterclaim submission. Claims not raised in the statement of claim or the defence and counterclaim before the close of the pleadings stage may still be brought before the court. While an increase in the amount claimed by way of amendment is permissible, it is necessary from the outset to specify the amounts claimed clearly and separately — indicating precisely how much is sought by way of pecuniary damages and how much by way of non-pecuniary damages.
Since pecuniary and non-pecuniary damage claims are ancillary to the divorce action, when claimed together with the divorce they are not subject to a separate proportional court fee. These claims may be adjudicated upon payment of the fixed divorce court fee.
Claiming Pecuniary and Non-Pecuniary Damages by Separate Action after the Divorce has become Final
Where compensation claims were not advanced in the divorce proceedings, they may subsequently be pursued by way of a separate action. However, Article 178 of the TCC establishes a limitation period for compensation claims arising from divorce: “Rights of action arising from the termination of the marriage by divorce are time-barred upon the expiry of one year from the date on which the divorce judgment becomes final.” The limitation period is accordingly one year running from the date on which the divorce judgment became final.
Compensation actions brought independently after the conclusion of the divorce proceedings lose their ancillary character and are therefore subject to a proportional court fee, calculated on the amount claimed.
Pecuniary and Non-Pecuniary Damages in Uncontested Divorce In Turkey
In uncontested divorce in Turkey, it is not necessary for the spouses to prove each other’s fault in respect of pecuniary and non-pecuniary damage claims. The parties freely determine the amounts of pecuniary and non-pecuniary damages — or their waiver of any such claims — in the divorce settlement agreement they execute. The agreement becomes final and binding upon judicial approval. Where the parties have declared in the settlement agreement that they waive their compensation rights, or where the divorce has become final, they cannot subsequently institute new proceedings seeking compensation by asserting, after the fact, that they wish to claim damages despite having agreed to an uncontested divorce; the parties are deemed to have mutually relinquished their respective claims and to have resolved the question of fault.
Determination of Fault and Compensation in Contested Divorce Proceedings
In contested divorce proceedings, the most critical element for an award of pecuniary and non-pecuniary damages is the determination of the fault of each spouse in bringing about the divorce. The court ascertains who is faultless, who is less at fault, and who bears serious fault, on the basis of the evidence presented by the parties.
All lawfully obtained evidence may be used in divorce proceedings to support a compensation claim and establish fault. This includes a wide range of evidentiary materials such as witness testimony, social media correspondence, screenshots of messages, medical assault reports, telephone call and SMS records, audio and visual recordings, hotel records, and bank account statements and payslips.
Enforcement of Pecuniary and Non-Pecuniary Damages Awarded in Divorce In Turkey
Compensation orders of Turkish Courts made as a result of divorce proceedings are, by their nature, monetary claims and may be enforced even before the judgment becomes final. As noted above, non-pecuniary damages cannot be structured as periodic payments. Pecuniary damages, by contrast, may be apportioned into periodic installments — payable monthly, annually, or otherwise. Where non-pecuniary damages and lump-sum pecuniary damages are in issue, the debtor is obliged to pay the specified sum in a single payment.
Where pecuniary damages have been ordered in the form of an annuity (periodic payments such as monthly installments), there are circumstances under which such payments will cease automatically or by court order (TCC Art. 176(3)). The annuity will cease automatically upon the creditor spouse’s formal remarriage or upon the death of either party. Where the creditor spouse is cohabiting with another person in a de facto marital relationship without formally remarrying, is leading a dishonorable life, or no longer falls within the condition of poverty, the paying party may apply to the court, which may then order the reduction or termination of the annuity.
Your Divorce Lawyer In Turkey: Viridis Legal Partners
You may be a claimant or respondent in a divorce proceeding in Turkey. In a process as emotionally draining as divorce, obtaining legal support is critical to ensuring that you do not suffer further harm and that all of your rights are fully protected. As your Istanbul divorce lawyers, we are here to provide you with the support you need. As Viridis Legal Partners, your family law attorneys in Turkey, we are here to assist you across every area of family and divorce law — including pecuniary and non-pecuniary damage claims, alimony, division of marital assets, and child custody matters.
Contact us today for legal support on divorce in Turkey.
Frequently Asked Questions
If no compensation is requested in an uncontested divorce in Turkey, can it be claimed afterwards?
No, it cannot. In uncontested divorce proceedings, the spouses agree on all financial consequences of the divorce, including pecuniary and non-pecuniary damages, in the settlement agreement they execute. Once that agreement has been approved and the judgment has become final, it is not possible for the parties to bring a new action under TCC Art. 178 seeking compensation in a manner contrary to their expressed intentions at the time of the uncontested divorce; the parties are deemed to have mutually waived their past claims and to have definitively resolved the question of fault.
From what date does interest run on pecuniary and non-pecuniary damage claims in divorce proceedings?
For interest to accrue on a compensation award, the claimant must first have made an express claim for interest; a judge cannot award interest of their own motion. Where compensation is claimed as part of the divorce proceedings themselves (as an ancillary claim in the statement of claim), interest begins to run from the date on which the divorce judgment becomes final. Where compensation is claimed by way of a separate, independent action brought within the one-year period provided under TCC Art. 178 following the finalization of the divorce, interest begins to run from the date the action is filed (or from the date of default). The applicable rate is the statutory interest rate.
Is a homemaker spouse entitled to pecuniary damages?
Yes, a homemaker spouse is entitled to pecuniary damages, provided that they are faultless or less at fault. Under the Turkish Civil Code, each spouse contributes to the joint life in proportion to their means — whether through material earnings or through labor such as housework and childcare. The loss suffered by a homemaker spouse — who, as a result of the divorce, is deprived of the other spouse’s material support and of the prospective welfare, standard of living, and security (social security entitlements, inheritance rights, care arrangements, etc.) that would have been available had the marriage continued — falls within the scope of loss of prospective interests. Accordingly, it is a statutory right for homemaker spouses to be awarded appropriate pecuniary damages by the court in recognition of their diminished interests.
