Divorce Due to Adultery Under Turkish Law
Divorce in Turkey, which is the termination of marriage by court decision, is one of the most common cases in the field of family law in Turkey. In Turkey, divorce proceedings may be initiated on the basis of various specific or general grounds stipulated under the Turkish Civil Code (TCC). Turkish Civil Code Article 161 and the subsequent articles regulate the grounds for divorce. Respectively, adultery, attempt on the spouse’s life, very bad or dishonorable behavior, committing a crime and leading a dishonorable life, abandonment, and mental illness are regulated as special grounds for divorce. The general grounds for divorce can be indicated within the scope of the breakdown of the marital union, also known as severe incompatibility.
As your divorce lawyer in Turkey, we, Viridis Legal Partners, stand by your side at every stage of your divorce case due to adultery in Turkey.
What is Adultery Under Turkish Law?
Adultery in Turkish law is regulated as one of the fault-based special grounds for divorce in Article 161 of the TCC as follows:
“A. Grounds for divorce
- Adultery
Article 161-
If one of the spouses commits adultery, the other spouse may file a divorce lawsuit. The right to file a lawsuit lapses six months after the spouse entitled to file the lawsuit learns of the reason for divorce, and in any case, five years after the act of adultery.
The forgiving party has no right to file a lawsuit.”
With the aforementioned legal article, adultery is shown as a ground for divorce in Turkey. Forfeiture periods have been arranged for filing a divorce case due to adultery, and it is stated that the forgiving party does not have the right to file a lawsuit. However, a definition of adultery has not been made. Pursuant to TCC Article 185/3, spouses are obliged to remain faithful to each other. Accordingly, one of the obligations of spouses within the marital union is fidelity. Adultery, or in other words, cheating, can be defined as the spouses acting contrary to this obligation of fidelity. Adultery can be expressed with a more concise definition as married persons having sexual intercourse with persons other than their spouses.
What Counts as Adultery In Turkish Law?
Primarily, for adultery to be mentioned under Turkish law, there must be a sexual relationship. The obligation of fidelity must be violated through sexual intercourse with a third party. Although acts such as messaging, kissing, and meeting with third parties can be evaluated as acts that undermine confidence, it will not be possible to speak of adultery within the scope of Turkish law. Acts that shake confidence can be evaluated within the reason of the breakdown of the marital union, which is a general ground for divorce in Turkish law.
Is a Homosexual Relationship Considered Adultery In Turkish Law?
Under Turkish law, adultery can only be in question if one of the spouses engages in sexual intercourse with someone of the opposite sex. In other words, a homosexual relationship is not evaluated within the scope of adultery. The situation of one of the spouses engaging in sexual intercourse with a person of the same sex is still evaluated within the scope of leading a dishonorable life in Turkish judicial practice. However, while this evaluation is seen as outdated, it can also be argued that one of the spouses entering into a homosexual relationship should be seen within the scope of adultery or the breakdown of the marital union.
Cheating Incident While the Divorce Case is Pending
In Turkish law, divorce cases, contested divorce proceedings in particular, can take years. On the other hand, as stated above, the spouses’ obligation of fidelity to each other continues as long as the marital union continues. Under Turkish judicial practice, for the marital union to be mentioned as ended by divorce, there is a need for a finalized divorce decision. For this reason, even after a divorce case is filed by one of the spouses, even after the Family Court decision is given, and even during the appeal and cassation stages, being with someone else will constitute adultery under Turkish law. Accordingly, even if the Family Court has decided on divorce after the divorce case is opened, it will be accepted as adultery if the spouses act contrary to the obligation of fidelity even while the divorce file is at the Regional Court of Justice or the Court of Cassation.
If one of the spouses commits adultery while the divorce case is continuing, it is possible to file a new divorce case due to adultery and merge this with the continuing divorce case.
Legal Basis of Divorce Case Due to Adultery In Turkey
TCC Article 161 states that spouses have the right to file a divorce lawsuit due to adultery, but it does not include the definition of adultery nor does it touch upon other details. Therefore, the framework of the term adultery has been drawn by legal practices and Turkish Court of Cassation precedents. Accordingly, for adultery to be mentioned, there must be a valid marriage between the spouses, sexual intercourse must have occurred, and the adulterous spouse must be at fault.
Under Turkish Law, grounds for divorce are divided into special grounds for divorce and general grounds for divorce, and are also grouped as absolute grounds for divorce and relative grounds for divorce. Special grounds for divorce, as stated above, are the grounds for divorce listed one by one by the law. While the general ground for divorce is the breakdown of the marital union, Adultery is regulated as a special ground for divorce under Turkish law. Absolute grounds for divorce are grounds for divorce where there is no need to additionally prove that the marital union has become unbearable in the divorce case. Accordingly, if absolute grounds for divorce are in question, proving only the event that caused the divorce is sufficient, and there is no need to prove that continuing the common life cannot be expected from the plaintiff spouse. Adultery is an absolute ground for divorcein Turkish law.
Valid Marriage Condition in Adultery
For adultery to be mentioned, primarily a marital union must exist. In other words, those who are not married cannot file a lawsuit due to adultery. Adultery cannot be mentioned in cases where spouses have a religious marriage (imam nikahı) or live together, or in engagement. Furthermore, as stated above, since the spouses’ duty of fidelity continues as long as the marital union continues between the spouses, it will be adultery if one of the spouses engages in sexual intercourse with the opposite sex while the divorce case is continuing, that is, until the divorce decision is finalized.
Sexual Intercourse Condition
For adultery to be mentioned, one of the spouses must have engaged in sexual intercourse with the opposite sex. Accordingly, acts such as one of the spouses messaging or flirting with a third party will not be evaluated as adultery. However, if conditions exist, it can be evaluated as behavior shaking confidence and it can be claimed that it led to the breakdown of the marital union. On the other hand, the occurrence of adultery, that is, sexual intercourse with a third party, only once is sufficient for the existence of adultery, and it will not be sought that the spouse is in an ongoing relationship with the third party.
Condition of the Adulterous Spouse Being at Fault
The spouse committing adultery must have performed the act of adultery voluntarily. Accordingly, if sexual intercourse occurred through situations that impair will, such as being drugged, threatened, or forced, adultery cannot be mentioned.
How to File a Divorce Case Due to Adultery In Turkey?
Where is a Divorce Case Due to Adultery Filed in Turkey?
Under Turkish Law, the competent court in divorce cases is the Family Court. In places where there is no Family Court, civil courts of first instance fulfill the duty of looking into divorce cases in the capacity of a family court. The authorized court in divorce cases is the court of the place of residence of one of the spouses or the place where they lived together for the last six months before the lawsuit. In addition, the question of which court has jurisdiction in cases where one spouse is a foreign national and the other is a Turkish citizen, or where both spouses are foreign nationals and neither resides in Turkey, must also be addressed under this heading.
According to Article 41 of Law No. 5718 on the Application of International Private Law, “Cases relating to the personal status of Turkish citizens shall be heard by the court with territorial jurisdiction in Turkey, provided that they are not or cannot be brought before the courts of a foreign country. If there is no such court, the case shall be heard by the court of the place where the person concerned resides. If the person does not reside in Turkey, the case shall be heard by the court of their last place of residence in Turkey. if neither of these courts has jurisdiction, the case shall be heard in one of the courts of Ankara, Istanbul or Izmir.” This rule shall also apply mutatis mutandis in cases where both spouses are foreign nationals.
Evidence and Proof in an Adultery Case In Turkey
The spouse filing a divorce lawsuit due to adultery is obliged to prove the allegation of adultery. Since adultery by its nature does not occur in public places, catching it in the act is also quite difficult. All kinds of evidence, such as witness statements, hotel records, correspondence, messaging, and call records can be used to prove adultery. What is important here is that the evidence is not unlawful. Evidence that violates the right to privacy of the private life of the spouse alleged to have committed adultery will be accepted as unlawful under Turkish law.
It should also be noted here that; pursuant to Article 226/1-c of the Code of Civil Procedure, which regulates facts that cannot be the subject of an oath, an oath cannot be proposed for the proof of the fact of adultery.
Forfeiture Period in Divorce Case Due to Adultery in Turkey
As stated in TCC Article 161/2, “The right to file a lawsuit lapses six months after the spouse entitled to file the lawsuit learns of the reason for divorce, and in any case, five years after the act of adultery.” Therefore, the lawsuit must be filed within six months from the learning of adultery. In the event of multiple adulteries or adultery occurring within an ongoing relationship, the period is calculated based on the last act of adultery. Furthermore, it should be noted here that if a divorce case is filed due to the breakdown of the marital union instead of due to adultery because the periods have passed, a decision regarding the reduction or removal of the existing rights of the adulterous spouse in terms of property regime will not be given.
Right to Sue of the Forgiving Spouse Under Turkish Law
As stated in TCC Article 161/3, “The forgiving party has no right to file a lawsuit.” Forgiveness can occur through the explicit declaration of the forgiving spouse or implicitly under Turkish Law. If the cheated spouse explicitly says they forgive the adulterer, sends a message in this direction, the marital union continues as if nothing happened after the adultery, or waives the divorce lawsuit filed due to adultery, forgiveness will be in question and the right to sue will disappear.
How is Property Division Handled in a Divorce Case Due to Adultery (Cheating) In Turkey?
Property division in divorce is carried out by following the property regime rules. Since the legal property regime in Turkish law is participation in acquired property, if there is no other contract, that is, a prenuptial agreement, between the spouses, property division is made according to the regime of participation in acquired property.
TCC Article 236/2 has introduced a special rule regarding property division in the case of adultery.
“In case of divorce due to adultery or attempt on life, the judge may decide to reduce or remove the faulty spouse’s share ratio in the residual value in accordance with equity.”
The value remaining after subtracting the liabilities, that is, the debts of the acquired properties and making the equalization, is called the residual value. The receivable right falling to the share of each of the spouses from this residual value is called the residual value receivable or participation receivable. Pursuant to the aforementioned article, in a divorce case due to adultery in Turkey, it can be decided to reduce or remove the cheating spouse’s participation share receivable.
Material and Moral Compensation Requests in Divorce Case Due to Adultery (Cheating)
Under Turkish law, compensation requests in divorce cases are regulated in TCC Article 174.
“V. Compensation and alimony in divorce
Material and moral compensation
Article 174-
The faultless or less faulty party whose existing or expected interests are damaged due to divorce may request appropriate material compensation from the faulty party.
The party whose personal rights are attacked due to the events causing the divorce may request the payment of an appropriate amount of money as moral compensation from the other faulty party.”
In the case of adultery, it is accepted by Turkish judicial practice that the spouse committing adultery is at fault and that adultery constitutes an attack on the personal rights of the cheated spouse. For this reason, it would not be wrong to say that material and moral compensation will also be ruled in case of proof of the divorce case based on the reason of adultery.
Alimony Requests in Divorce Case Due to Adultery (Cheating) In Turkey
In accordance with Turkish law, alimony can be examined under three headings.
- Interim Alimony,
- Child Support,
- Poverty Alimony (Spousal Maintenance)
Of these, interim alimony is ruled in favor of both the spouse and the child since the marital union continues while the divorce case is pending. Child support is intended for the spouse who is not granted custody to participate in the expenses of the joint child. Therefore, issues such as the reason for divorce and the fault of the parties are not primarily important in both interim and child support alimony under Turkish Law.
Poverty alimony in case of divorce is regulated in TCC Article 175.
“2. Poverty alimony
Article 175-
The party who will fall into poverty due to divorce may request alimony indefinitely from the other party in proportion to their financial power for their livelihood, provided that their fault is not more severe. The fault of the alimony obligor is not sought.”
In accordance with the given article, under Turkish law, whether the party who will pay alimony is at fault or not is not important in ruling for alimony. On the other hand, the spouse whose fault is more severe in the events leading to divorce does not have the right to request alimony. In other words, it would be appropriate to say that alimony will not be ruled in favor of the spouse committing adultery.
Child Custody in a Divorce Case Due to Adultery (Cheating) In Turkey
Custody of the joint children in Turkish law is one of the most disputed parts of cases. In TCC Article 336, it is stated that the right of custody in divorce belongs to the spouse to whom the child is left. Also, according to TCC Article 182, the judge has the discretion regarding the rights of the mother and father regarding the children in divorce. The content of the rights of the parents regarding the children consists of custody and establishing a personal relationship with the child. While using this discretion regarding these, the judge will consider the “principle of the best interests of the child,” not the reasons for divorce and the fault status of the spouses. Therefore, in cases where it is in the child’s interest, the cheating spouse can also gain custody.
Compensation Claim of the Cheated Spouse Against the 3rd Party Under Turkish Law
Under Turkish judicial practice, it is not possible for the cheated spouse to claim compensation from the 3rd party participating in the adultery. The General Assembly of Civil Chambers of the Court of Cassation (Yargıtay İBBGK), in its decision dated 06.07.2018 with Merit No. 2017/5 and Decision No. 2018/7:
“…One of the spouses can only demand from the other spouse to act in accordance with the obligation of fidelity. Since the third party does not have an obligation of fidelity, it cannot be said that this behavior of the third party who is with the married spouse is a direct attack on the personal rights of the other spouse.
Another point to be considered at this point is that the Law does not allow for the compensation of reflected damage due to attacks on personal rights other than death and severe bodily harm (Code of Obligations No. 6098 Art. 56/2). In this case, due to the absence of a link of unlawfulness, it is not possible for anyone to claim compensation with the allegation that they suffered reflected moral damage due to an attack on someone else’s honor and dignity, privacy of private life, or secrets. It is seen that the compensation of reflected damages suffered by the person to whom the action is not directly directed due to this action will not be in question unless there is a clear regulation making this possible.
As for the compensation claims directed by the cheated spouse to the third party, the same conclusion should be reached “a fortiori.” Because in such events, even the existence of reflected damage cannot be mentioned. Indeed, the third party does not have any unlawful act against the spouse with whom they had sexual intercourse, so that it can be mentioned that the personal rights of the other spouse are also attacked with the same act, and there is no damage suffered by the spouse committing adultery so that there is a reflected damage to the other spouse. For this reason, even if it is accepted that the other spouse suffered a clear moral damage due to the act of the third party, the remedy of these damages should be accepted as possible only in the presence of a clear regulation in this direction (Demircioğlu, p. 713)…”
with this reasoning, it has largely closed the way to claim compensation from the 3rd party in case of adultery under Turkish law.
Your Divorce Lawyer In Turkey: Viridis Legal Partners
Divorce cases due to adultery are cases that are emotionally quite wearing and require high importance in terms of the economic consequences of the divorce, requiring them to be conducted with attention and expertise. Discussions on the proof of adultery and the legality of evidence make it mandatory for the case to be conducted flawlessly from beginning to end. Therefore, divorce cases due to adultery must be handled with a divorce lawyer from beginning to end.
As Viridis Legal Partners, we are by your side to ensure the best results in your divorce cases due to adultery. As your Istanbul divorce lawyer, we work to offer you the most suitable solutions in every aspect of divorce cases such as participation receivable, alimony, material and moral compensation, custody of joint children, and establishing a personal relationship with the child. Furthermore, in divorce cases involving foreign elements, as your English-speaking Turkish divorce lawyer, we provide effective legal support by overcoming the language barrier for our foreign national clients.
As your divorce lawyer in Istanbul, we work to achieve the most suitable results in every aspect of your divorce, including division of property, participation claims, alimony, pecuniary and non-pecuniary compensation, custody of joint children, and establishing personal relationships with the child.
Contact us today to benefit from our Turkish divorce lawyer in your divorce cases due to adultery.
Frequently Asked Questions
- What are the conditions for a divorce case due to adultery in Turkey?
For a divorce case to be filed due to adultery, the conditions of the existence of a marriage between the spouses, the cheating occurring in the form of sexual intercourse, and the spouse committing adultery being at fault must exist.
- Which evidence is accepted in adultery cases in Turkey?
All kinds of evidence, such as witness statements, hotel records, correspondence, messaging, and call records, can be used to prove adultery.
- How is cheating proved in a divorce case in Turkey?
Adultery can be proved with evidence that is not unlawful. While unlawfulness in evidence is evaluated specifically for each event, evidence collected in a way that violates the spouse’s right to privacy of private life will be accepted as unlawful and will not be used in proving divorce.
- How is property division done in divorce cases due to adultery in Turkey?
In making property division in divorce cases due to adultery, the judge may decide to reduce or remove the cheating spouse’s right to participation receivable. Therefore, adultery is also quite important in terms of the economic consequences of divorce.
- Is it legal to hire a private detective to document the adultery incident in Turkey?
Unlawfulness in evidence is evaluated by the courts specifically for each concrete event. There is no law regulating the profession of private detective in our country. However, it is frequently seen that private detectives are resorted to in divorce cases due to adultery. The legal validity of the evidence collected by detectives depends on the method of obtaining the evidence. Evidence obtained through legal means, for example, photos, videos, or witness statements, can be used as evidence in court.
- What is the statute of limitations in a divorce case due to adultery in Turkey?
The period for filing a lawsuit in divorce cases due to adultery is 6 months from the learning of adultery and in any case, five years from the occurrence of adultery.
- Can moral compensation be claimed due to cheating in Turkey?
In divorce cases due to adultery, since it must be accepted that personal rights are also damaged due to adultery, it is possible to claim moral compensation.
