1.
Among the special reasons for divorce, the most common type of lawsuit filed in practice is a divorce case for adultery Decriminalization.
Adultery means a sexual relationship that one of the spouses has with someone other than the opposite-sex partner. Adultery is a clear violation of the spouses’ obligations of fidelity to each other within the family union. Although the word ”adultery” means the realization of sexual intercourse, the Court of Cassation recognizes that a divorce case filed for adultery must be accepted even in the presence of events that remain at the stage of the attempt and give the impression that adultery has been committed.
One of the spouses can file for divorce based on both adultery and general divorce reasons. In a contentious divorce case filed for two reasons in this way, if the case is rejected because it was not filed in time, if adultery is proved, the judge will be able to decide to divorce for the reason of general divorce (shaking the foundation of common life), even if he cannot rely on the direct cause of adultery due to the statute of limitations.
2.
The period for filing a contentious divorce case due to adultery is six months from the date on which the other spouse learns of the act of adultery, and in any case, five years from the date of termination of the act of adultery. This is a time of declining rights. After the expiration of the statute of limitations, divorce cases that will be filed only for adultery should be rejected. However, if the lawsuit and the general divorce reasons for adultery are filed at the same time, even if the statute of limitations for adultery has passed, if adultery is proven, the divorce decision should be made not on the grounds of adultery, but on the grounds that common life has been shaken from its foundations.
The other spouse who forgives his spouse because of adultery does not have the right to sue. Forgiveness can be explicit or implicit, as well as oral or written. The waiver of the lawsuit filed due to adultery also qualifies as amnesty and constitutes an obstacle to filing for divorce based on the same events (adultery). It is not in the nature of forgiveness for one of the spouses to allow adultery before adultery occurs, and forgiveness is possible only after the deed has taken place (an unborn right cannot be waived). However, the Court of Cassation stated that the objection of a spouse who openly consents to adultery or gives implicit consent by remaining silent during adultery to a divorce case to be filed on the basis of general divorce grounds should be considered an abuse of right and a divorce decision should be made.
3.
In divorce cases filed due to adultery, the other spouse may claim non-pecuniary damages from the adulterous spouse according to the general principles of compensation law.
The custody of the children is determined according to the general provisions. In other words, if it is in the best interest of the children that custody of the children be given to the adulterous spouse, the court may grant custody of the children to the adulterous spouse. Being a good (faithful) wife and being a good parent are legally considered different concepts.
You can reach our other article samples and petition samples by clicking here.