TR
SUPREME COURT
GENERAL ASSEMBLY OF LAW
E. 2008/2-695
K. 2008/710
T. 11/26/2008
• BREAKDOWN OF MARRIAGE (Plaintiff claims that Defendant
is experiencing financial difficulties and is subject to economic violence.
Claim – Divorce Decision to be Issued)
• DIVORCE (Parties Married for 34 Years / Plaintiff Claims that Defendant
is experiencing financial difficulties and is subjected to economic violence –
Divorce Decision to be Issued)
• ECONOMIC VIOLENCE (Marriage Union Foundations Shaken / Plaintiff
Claims Defendant Caused Financial Difficulties – Divorce
Decision to be Issued)
4721/m.166
SUMMARY: In the divorce case; The plaintiff’s lawyer claimed that due to the defendant’s quarrelsome and incompatible attitude,
the plaintiff gave the money he earned while working and the pension he received after retirement
, the fact that he wanted her to live with him while giving her very little money, that the parties
had separated from each other a long time ago, that they started living in separate rooms like two strangers,
that the parties should divorce, and that they should be awarded
material and moral damages. The court rejected in its previous decision that “he had been forced to rely on his wife’s excessive frugality and stinginess for many
years, that it was necessary for the woman to live freely and comfortably in economic and social terms,
and that the lawsuit filed to escape violence should be accepted.”
The rejection decision is correct.
CASE: The “divorce, material and moral compensation” case between the parties,
CASE: The case between the parties concerning “divorce, material and moral damages”
at the end of the trial; Acceptance of the decision of the A… … Family Court regarding the divorce case,
partial acceptance of the claim for material damages,
and the rejection of the decisions dated 23.03.2007 and numbered 2006/318 E., 2007/329 K.
Upon the request of the defendant’s lawyer, the decision of the 2nd Civil Chamber of the Court of Cassation
dated 15.04.2008 and numbered 2007/12410 E., 2008/5373 K.;
(… After the events mentioned in the plaintiff’s witness statements, the marriage continued,
and the events reported by the plaintiff cannot be taken as grounds for divorce.
Pursuant to Article 166/1-2 of the Turkish Civil Code; Divorce decision
It cannot be expected that the spouses will continue to live together for the marriage to continue.
It must be determined that the foundations have been shaken. However, the plaintiff’s witnesses)
Part of their statements are based on Article 166/1 of the Turkish Civil Code.
These are statements that are not suitable for accepting the state of disruption, and some of them also consist of grounds and reasons.
They contain unexplained and unconvincing explanations. Therefore,
while the case should have been dismissed, the evidence was evaluated incorrectly and insufficiently justified.
The divorce decision is contrary to procedure and law…),
T he request for retrial with the reversal of the grounds, by returning the file from its location;
The court objected to the previous decision.
It was reviewed by the General Assembly of the Court of Appeals and the objection to the objection decision was timely.
After reaching an understanding and reading the documents in the file, the necessity was discussed:
DECISION: The case concerns divorce and claims for material and moral damages.
The plaintiff’s lawyer stated that the parties married in 1972 and that the defendant had a quarrelsome and unpleasant relationship.
The plaintiff’s employment and pension structure, the defendant
taking his pension, giving him very little money and wanting him to live with him,
the parties separating a long time ago, separating like two strangers,
starting to live in separate rooms, the parties divorcing, the plaintiff
10,000 YTL in material damages and 5,000 YTL in moral damages
and that he had filed a lawsuit.
It was stated that during the parties’ 34-year marriage, the defendant’s lawyer had not engaged in any
bad behavior that would disturb the defendant’s spouse, that the plaintiff’s claims were unfounded,
that for the last three and a half years, all kinds of needs had not been met
and that the lawsuit was dismissed on the grounds that the plaintiff received his own salary.
The court accepted the divorce case and ruled that the material damages be partially compensated.
The Special Chamber accepted the case for moral damages and ruled to dismiss it.
For the reasons stated above, the court overturned the case on the grounds that “his wife had been excessively calculating for years and he had been forced to rely on her stinginess to the point of miserliness in order to live freely and comfortably in the social sphere and to escape economic violence.” An appeal was filed against the previous decision on the grounds that the case should have been accepted. The court’s decision is based on the parties’ mutual claims and defenses, the minutes in the file, and the evidence.
Considering the compelling reasons stated in the decision and particularly in the evaluation of the evidence,
the appeal decision is appropriate as no error has been found.
However, the defendant’s attorney’s other grounds for appeal have not been examined by the Special Chamber.
The file should be sent to the Special Office.
CONCLUSION: For the reasons explained above, since the appeal was found to be appropriate, the file
should be sent to the 2nd Legal Office for the examination of the defendant’s attorney’s appeals.
It was decided by majority vote at the second meeting on 11/26/2008 to send it.
DISSENTING OPINION:
The parties’ decision dated 08/28/1972
They were married in India. The divorce case filed by the plaintiff
was filed on 04/03/2006, i.e., 34 years later.
The plaintiff’s witnesses heard in the case are colleagues with whom the plaintiff worked before retiring.
Only one of them is the plaintiff’s brother. Together with his work colleagues,
the witnesses stated that the defendant did not give the plaintiff pocket money or gave very little,
that he could not even buy tea for his friends, and that the plaintiff could not spend money as he wished. The witness, who is the plaintiff’s brother, stated that the parties argued constantly, that they could not make ends meet, that the defendant intervened because the child ate a bowl of yogurt,
and that because of this, the defendant said seven years ago that he earned a higher salary than him and
would contribute as much as his own salary to the budget.
The plaintiff retired in 1995. Th e witnesses, except for his brother, are his colleagues.
The plaintiff retired in 1995. T he witnesses, except for her brother, are her colleagues.
They do not meet as a family. Th ey relayed what they heard from the plaintiff. They did not disclose anything new.
The parties have been living together for 11 years since 1995
and had forgiven each other for previous incidents.
The witness, who is the plaintiff’s brother, stated that the plaintiff fed the child a bowl of yogurt.
He mentioned that the parties argued. It appears that one of the parties’ children is registered in the civil registry.
This child was born in 1974 and was 32 years old when the lawsuit was filed.
Since his mother fed him yogurt when he was a child, he would have eaten it 30 times by the age of 2.
A year passed. The witness stated that the defendant would contribute an equal amount of money to the budget,
but did not explain whether he did so. He did not say where the separation of the rooms
originated from. In other words, he did not attribute any fault to the defendant.
The point all the witnesses wanted to make was that the defendant was stingy.
This is about attitude. According to them, the defendant is so stingy that he doesn’t even have money to buy his wife tea.
The same stingy defendant bought an apartment in Ankara and shared half of his share with his wife. He registered it in the land registry.
The defendant is so stingy that he also registered the summer house he bought
in his wife’s name. As far as can be understood from the witness statements, both the plaintiff and the defendant are civil servants. They bought the aforementioned apartments and the car with the money they saved. The y live together in the house in Ankara and the summer house.
They go and stay together and use the car together. The plaintiff
had previously gone to the hospital with the defendant’s car due to high blood pressure and kidney disease.
The defendant did not take him, so the plaintiff had to go to the hospital by minibus, and of course, he lost his wife. It would have been better if the defendant
had taken him to the hospital himself, but the witness does not explain why he did not or could not take him.
He says that 3-4 years have passed since this incident. He does not say anything new.
Two retired civil servants, with the money they saved during their working years, own a house, a summer home,
and their own cars.
They live in their own home in Ankara. If they hadn’t bought this house with their savings,
they would have had to pay at least 500 YTL in rent per month. In other words, because they are retired,
they would have had to pay half their salary for rent. They would have struggled to get by on the remaining money. Is it possible to find them strange for being thrifty
and consider it a reason for divorce? Of course not.
The witnesses did not present any new facts, but the old facts and the cause of the dispute were accepted.
They talked about impossible events. The Special Chamber,
according to its own case law, determined that the parties had forgiven each other for past events and had lived together for many years.
For a divorce to be granted,
the continuation of the marriage must be unexpectedly shaken to its foundations (TMK.
Article 166/1). For the reasons explained, the marital union has not been shaken to its foundations, nor has it been shaken at all.
Considering the reasons explained above and the final decisions of the Special Chamber,
I cannot agree with the majority’s opinion on divorce.