COURT OF CASSATION 2. LEGAL DEPARTMENT 2016/4634 E. , 2017/9893 K.
“text of jurisprudence”
COURT :Family Court
CASE TYPE : Divorce-Where Will I Get the Trappings
At the end of the reasoning of the case between the parties, the judgment given by the local court, the date and number shown above, was appealed by the plaintiff woman in terms of the amounts and trappings of the damages and the paperwork was read and discussed and considered as Dec:
1-Considering the identified economic and social conditions of the parties, the degree of defects in the events leading to the divorce, the purchasing power of money, the current and expected interest violated by the attack on the rights of a person, the material and moral compensation that is appreciated for the benefit of the plaintiff woman is minimal. 4 Of the Turkish Civil Code. 50 and 52 of the Turkish Code of Obligations with the principle of equity in its article. taking into account the provision of the article, a more appropriate amount of material (TMK m. 174/1) and spiritual (TMK m. 174/2) compensation appreciation is required. Without observing these aspects, the judgment facility was not found to be correct.
2-The ornaments and jewelry worn at the wedding belong to the woman and are her personal belongings. The plaintiff woman declared that the defendant had cashed and spent the trappings and demanded that their price be refunded if it was not possible to return the trappings exactly, exactly. Defendant male, on the other hand, stated in his reply petition that some of the trappings were spent on the birth of their common child Ayşe, part was spent on paying the plaintiff’s agricultural-bagkur premiums, and the remaining part was spent on the purchase of three 2/b-qualified real estate received on behalf of the plaintiff. There is no dispute that trappings are cashed. In the concrete case, there is no evidence that the trappings were cashed to pay the woman’s premium debt and buy real estate belonging to the woman, and that the trappings were given to the man to be cashed with the consent of the woman and not returned again. In this case, return conditions for trappings have been established. Therefore, it is necessary to make an expert examination to determine the values of the trappings in terms of the trappings requested by the plaintiff in terms of the trappings confessed by the defendant male and requested in the lawsuit petition by explaining the breed, quality and value of the trappings requested by the plaintiff, and to make a decision according to the result that will take place, while the rejection decision on written grounds is not correct and required to be overturned.
CONCLUSION: The above-mentioned provision of the appeal (1.) and (2.) it was decided unanimously that it would be OVERTURNED for the reasons shown in the paragraphs, that the advance fee for the appeal would be returned to the depositor upon request, and that the way to correct the decision would be open within 15 days of the notification of this decision. 21.09.2017.
SUPREME COURT 3. LEGAL DEPARTMENT 2017/11837 E. , 2017/7065 K.
“text of jurisprudence”
COURT :FAMILY COURT
As a result of the court hearing of the case between the parties on the return of jewelry / participation in which Dec will receive participation, the decision to partially accept the case in terms of participation and reject it in terms of jewelry was appealed by the party’s deputies within the period; After the decision was made to accept the appeal petition, the papers in the file were read and considered necessary.
THE DECISION OF THE SUPREME COURT
The acting plaintiff said that the parties got married in 2012, in 2013….gold plate and the vehicle that was purchased and worn by the defendant to the plaintiff at the wedding by asserting that the surplus is spent on bozdurulu without prejudice to the rights of the defendant to participate in the cost of the jewelry will 5.000 TL 5,000 following the decision to request and sued; the description of jewelry for a total of 12 pieces 250 grams bracelet demanded in the petition, has stated that the ATA imprint and is set in 24 karat gold dizdirme 21 pounds.
The attorney for the defendant, the defendant’s previous marriage within the Union by selling tool, the tool acquired by the plaintiff after the plaintiff’s gold wedding that belongs to the family being put in the safe in the bank, three marriage within the Union and the bracelet by itself to cover their costs in line with the consent of the plaintiff is being spent and if it is cashed, when forced to make payments from the plaintiff, a line of gold when seeking a loan, the plaintiff’s remaining Gold said You can’t ask for them by specifying their father and has asked for a dismissal.
Court; considered acquired property….the value of the 500 TL acquired as a result of deducting the personal property used during the purchase of the vehicle with license plates was assessed as 600 TL as of the date of liquidation, that is, the date of the decision, taking into account the change in the inflation index and the principles of rights and grace, and the plaintiff will receive 1/2 of the amount of 300 TL that the plaintiff will receive from the defendant, considering that the gold belonging to the plaintiff was placed in his mother’s safe after the wedding, the claims that were forcibly taken from the plaintiff by the defendant and not returned by the defendant could not be proven with concrete and auditable evidence, the case regarding trappings was decided to be dismissed; it was appealed by the party’s attorneys within the period of judgment.
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-2-
The case is related to the request that he will receive trappings and participation.
1-According to the articles in the file, the evidence on which the decision is based, the reasons for the legal requirement, and in particular, there is no inaccuracy in the discretion of the evidence, the plaintiff’s other appeals are not in place.
2-6 of the Turkish Civil Code.in accordance with the provision of the article; each of the parties is obliged to prove the existence of the facts on which it bases its right, unless there is a provision to the contrary in the law. As is accepted both in the doctrine and in the case law of the Supreme Court, the burden of proof falls on anyone who claims or defends a situation that is contrary to the usual course of life. On the other hand, a person who wants to extract rights for his own benefit from an event that he claims is obliged to prove the event that he claims.
As a rule, the ornaments worn during the wedding are considered donated to the woman no matter who wears them, unless there is an agreement to the contrary, and they are now her personal property. If it is proved by the defendant that these items were given to the husband not to be returned, cashed at the request and approval of the woman and spent on common needs, the husband is exempt from returning these items.
Looking at the concrete event; Neriman Ünver the defendant’s witness mother who reside in File scope “because the salary is not enough for the defendant…needs me he said he cashed three bracelets, wedding bracelets on the day after the plaintiff and the defendant giving me three “pay instalment furniture with it,” they said, these three bracelets from the bracelets I described above are different” – shaped, again, the defendant’s sister Yalçın sure to witness “the parties…they don’t get along because they couldn’t afford salary for bracelets worn at the wedding cashed know, I’ve heard that it is one of 9, in fact, I know that they cashed 3 of the bracelets because Lütfiye couldn’t afford to take them by plane to the exams …”with their statements, it is understood that 6 bracelets were cashed in a marriage union in the face of the defendant’s admission that the bracelet was broken down and spent. The defendant, on the other hand, could not prove that the plaintiff woman gave them by consent not to be returned.
As such, it is indisputable that the defendant husband cannot prove that the trappings spent on common needs were given to him with and without the condition of return, so he is liable to return the trappings that are the subject of the lawsuit and whose existence can be proven.
If so, the court; In terms of 6 bracelets that are understood to have been cashed (setting, grams and price), an examination should be made and a decision should be made to accept the case, while the decision to completely reject the request for trappings was not considered correct, it required a violation.
3-As for the defendant’s appeals against the power of attorney fee;
A. In force at the date of the decisionA.Finish.T.13th of ’ the item ‘(1) the tariff as shown in the second part of the second section of the subject can be evaluated in money or money of Legal Aid attorney fees, the trial court is seen under the tariff fixed fees not provided for in the second part of that is specified (in the second paragraph of Article seventh, ninth, tenth, with the last sentence of the first paragraph of the article subject to the provisions of the last paragraph of the article) is determined according to the third part of the tariff. (2) However, the agreed fee may not exceed the accepted or rejected amount.” the arrangement is included.
Although the court decided that the participation fee of 300 TL should be taken from the defendant, it was not considered correct that the relative attorney fee of 300.00 TL should be ruled in favor of the plaintiff’s attorney in accordance with the above article regulation, while the maktu attorney fee of 1,500.00 TL should be ruled on.
CONCLUSION: Refusal of other appeals of the plaintiff for the reasons described in the first paragraph above; VIOLATION of the provision for the benefit of the plaintiff and defendant for the reasons described in the second and third paragraphs and refund of the appeal fee received in advance to the appellant on request, 440 of the HUMK No. 1086 with the temporary reference to article 3 of the HMK No. 6100.in accordance with the article, it was unanimously decided on 11.05.2017 that the way to correct the decision would be open within a 15-day period from the notification of the decision.
3.LEGAL DEPARTMENT 2015/13112 E. , 2016/6918 K.
“text of jurisprudence”
COURT :FAMILY COURT
As a result of the trial of the case for the return of trappings between the parties, the provision for partial acceptance of the case was appealed by the plaintiff’s deputy within the time limit; after the decision was made Dec accept the appeal petition, the papers in the file were read and considered as necessary:
THE DECISION OF THE SUPREME COURT
Married in 2009 by the parties in the petition, the plaintiff’s attorney, the defendant during their period of bad acting together constantly humiliate their client, the defendant violent, physically, and finally the defendant on the night of 07.07.2010 beat the plaintiff, the plaintiff’s home that have been displaced from the plaintiff’s 45-day report to the state hospital, taking a’returned to his family in, and due to the lack of public housing is to return to the plaintiff’s safety, whether at the wedding are kept in a vault belonging to the defendant of the jewelry worn by specifying; he requested and sued that the defendant be decided to collect the same amount of trappings or the amount of 72,000.00 TL from the defendant.
In his reply petition, the defendant’s attorney stated that the plaintiff’s claims were untrue, the plaintiff’s state hospital report was not related to the mint, the jewelry worn at the wedding was taken with him when the plaintiff left the house, and asked for the rejection of the case.
The court also accepted by the supreme court that the plaintiff in the divorce case left the family home as a result of the defendant’s pressure, since it is not possible for the plaintiff to bring the trappings worn at the engagement at the wedding with him, but; expert witness report 1 that are identified in the transportation of jewelry necklace and bracelet that is very easy, carry it and the plaintiff, as the defendant may be the subject thereof-is it possible the adoption of unprecedented staying against Plaintiff, the plaintiff is borne by itself it was concluded that where, 49 pieces, full Gold, half gold 74, 113 units of gold and a quarter of today’s economic conditions due to changes in customs and traditions, not to mention being used as ornaments by ladies, especially the rapid change that has occurred in the gold sector regarding the design of gold
Turkey’s gold trade worldwide and develops emerging and trappings of the subject in question are considered together when full, half and quarter trappings of gold and use these as they are used as investment vehicles is not in question, and trappings that have become the investment vehicle of gold that can be regarded as partially agree partially in denial on the grounds that it has not concluded the case of a 66 pieces of bracelets, each one is 11 gr. 1 piece … burmese bracelet, 30 gr. Two 3-pack Burmese bracelets weighing 20 g each. 40 gr. 3 thick bracelets of 15 g each. from 45 gr. 5 Pieces of two whole gold pieces in a place of 70 gr. 16 heads of gold for a total of 285.71 g. 3 pieces for a total of 100 gr. This set of 22-carat gold to refund to the plaintiff by the defendant that the cost of buying gold when it is not to be taken on the date of payment from the defendant to the plaintiff to be paid over and it has been decided that, within the period of the provision was appealed by the plaintiff’s attorney.
6 Of the Turkish Civil Code.in accordance with the provision of the article; each of the parties is obliged to prove the existence of the facts on which it bases its right, unless there is a provision to the contrary in the law. As is accepted both in the doctrine and in the case law of the Supreme Court, the burden of proof falls on anyone who claims or defends a situation that is contrary to the usual course of life. On the other hand, a person who wants to extract rights for his own benefit from an event that he claims is obliged to prove the event that he claims.
As a rule, ornaments worn by a woman during marriage are considered donated to a woman, regardless of who bought them. The gold belonging to the woman in question may have been cashed by her husband and used for different purposes. For various reasons (purchase of a house or car, needs of the house, wedding debts, honeymoon, etc.), these gold coins cashed by the husband are mandatory to be returned to the woman unless the money is donated.
Since jewelry is one of the kinds of items that can be easily stored, transported, and taken away, it is possible that the woman who plans to leave the house will take them away in advance and hide them as well as it is always possible to take them on when leaving the house. As a result, in normal conditions, it is necessary to accept that the trappings are on the woman. According to their life experience, the usual thing is that this kind of item is on the woman or stored at home, kept. The abandonment of these to the dignity and protection of the defendant is incompatible with the usual situation. In this regard, the woman must prove the existence of the trappings subject to the lawsuit and that they were forcibly taken away from her within the marital union.
A concrete case, the court partly agree partly the reason of rejection in the case of the plaintiff is separated as a result of pressure from the family’s residence of the defendant, and the plaintiff’s April wedding to have worn jewelry in question is not specified, then staying on the side of the defendant in the court case of the jewelry has been proved by the plaintiff has accepted that. However, some of the trappings rejected by the court are in terms of; since the necklace and dog tag are very easy to carry and the plaintiff may have to carry it, it is not possible to accept that they remain in the defendant and that 49 full gold, 74 half gold, 113 quarter gold are not used as trappings by women due to the economic conditions of the day and changes in customs and traditions, in particular, the rapid change that has occurred in the gold sector has led to the design of gold and has improved the subject of trappings around the world When Turkey’s gold trade is evaluated together, the subject of the bet is full, half and
quarter trappings of gold and use these as they are used as investment vehicles is not in question, and trappings that have become the investment vehicle of the gold can be regarded as decisions of the court on the grounds that its rationale as conflicting with the resident to our apartment and correct rejection of unprecedented decision, the expert and the court accepted that the plaintiff also identified in the report didn’t take exactly the same with other ornamental objects in terms of return, the cash consideration to be determined in the absence of return possible that the decision to return should be made while the review is missing, it was not considered correct to make a decision in writing on erroneous assessment and illegal grounds, and it required to be overturned.
CONCLUSION: Without regard to the principles described above, the provision in writing is invalid, the appeals are in place for these reasons, and the decision has been made by acceptance.nun 428.according to the article, it was unanimously decided on 02.05.2016 that it would be OVERTURNED and that the appeal fee received in advance would be returned to the appellant upon request.
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