TURKISH SUPREME COURT
Legal Department Article No: 2016/25431
Decision No: 2018/11110
Decision Date: 16.10.2018 SUPREME COURT DECISION
COURT: Family Court
CASE TYPE: Divorce
At the conclusion of the case between the parties, the above date given by the local court
and the ruling accepted by the defendant-plaintiff, the appeal filed against the rejection of the woman’s claim for alimony and poverty compensation accepted by the man,
child support, and
moral damages;
and that the appeal be heard if requested; On the hearing date of 16.10.2018, the defendant-plaintiff who filed the appeal… and
the attorney did not appear. The other party, the plaintiff-defendant… attorney Av…. is here. After hearing the statements,
it was deemed appropriate to postpone the case until after the hearing for review and decision. Today,
all documents in the file were read, discussed, and deemed necessary:
Articles 1-166/1-2 of the Turkish Civil Code. According to the article, in order for a divorce decree to be issued,
the foundations of the marriage must be so shaken that the spouses cannot be expected to continue living together
In this specific case, although the defendant-plaintiff man and the plaintiff-defendant woman
agreed that the marriage had become unbearable and that the parties had decided to divorce,
the hearing and the evidence gathered, including hotel records and the file from that date,
photographs, the fact that the parties met in a hotel room while the woman’s divorce case was ongoing
and stayed there for at least one night,
and the fact that the plaintiff and defendant woman had forgiven each other and
accepted this with tolerance, the court determined that they were seriously at fault. Furthermore, based on events that have been forgiven or accepted with tolerance, no fault can be attributed to the parties and a divorce decision cannot be made. In light of this situation,
the forgiven defendant-plaintiff man has become free of fault. In this case, the plaintiff-defendant woman’s
claim for divorce under Article 166/1-2 of the Turkish Civil Code does not meet the conditions for divorce specified in the said article.
For the reasons explained, the woman’s divorce case must be dismissed; even if it were correct to accept it,
it has not been realized. However, the defendant-plaintiff has objected to the divorce ruling in the man’s divorce case;
because the divorce ruling has become final without being appealed. The woman’s case
has also been evaluated without objection. In this case, the plaintiff-defendant is evaluating the merits of the woman’s divorce case.
No decision will be made. However, due to the case becoming moot,
a decision has been made on the merits in cases where it is not required, and the judge will determine the validity status of the parties on the date the case was filed,
and will assess and allocate the attorney’s fees and court costs (HMK m. 331/1). Considering this matter,
it was necessary to decide on the violation of the judgment in order to render a decision.
2- Within the scope of the entire file; while the defendant-plaintiff man-woman divorce case was ongoing, the other case
was treated as a combined divorce case in accordance with Article 161 of the Turkish Civil Code on 12.06.2015, after the incident subject to pardon, otherwise in accordance with Article 166/1.
Regarding the court’s joint case against the man, it was decided that the woman’s trust had been undermined by his behavior,
but that the defendant-plaintiff man was seriously at fault and that both cases were accepted. As explained in paragraph 1 above, the plaintiff-defendant woman’s divorce case is ongoing,
but the events that are the subject of this woman’s case have been forgiven by the woman. After the incident,
the forgiven defendant-plaintiff learned of the existence of the behavior of the man and woman that undermined trust and filed a lawsuit based on this case and
proved this claim in the divorce case and in the court’s acceptance.
In this case, considering that the man’s fault was forgiven in the events leading to the divorce,
the plaintiff-defendant woman became entirely at fault when the case was accepted. If so, the court should have considered the fact that the defendant-plaintiff, a man, was deemed more at fault than the plaintiff-defendant woman and that this erroneous fault
was linked to the determination of material and moral compensation in favor of the plaintiff-defendant woman (TMK m.174/1-2) and
alimony for poverty (TMK m.175), that the judgment of the defendant-plaintiff man is also largely erroneous, even
erroneous from a moral standpoint (TMK m. 174/2), and that the rejection of his claim is wrong and
needs to be corrected.
3- Custody of Alperen, born in 2006, Zeynep, born in 2008, and … born in 2010,
is granted to the plaintiff-defendant mother.
In the custody arrangement; in the event of a conflict between the interests of the parent and the interests of the child in the custody of the child, the superiority of the child’s interests
must be recognized. The child’s best interests are what is best for the child in terms of their physical, mental, and moral well-being.
For the child to develop in this way and for this development to occur, it is necessary to provide the child with social, economic, and
cultural conditions. When determining the best interests of the child in these matters,
if the child were an adult, what decision would they make in their own interest in a matter concerning them?
The person with the authority to make decisions on behalf of the child must also decide in the same direction;
that is, the child’s hypothetical opinion will be based on this.
Custody concerns public order, and the principle of personal inquiry applies. Therefore, developments occurring during the trial
must also be taken into account.
According to Article 12 of the United Nations Convention on the Rights of the Child and Articles 3 and 6 of the relevant European Convention on the Exercise of Children’s Rights, children are considered to have sufficient understanding under national law to express their views in matters affecting them,
and requires that due weight be given to their views. The best interests of the child must prevail; otherwise, a decision contrary to their views may be made. The issue of custody, which concerns children, is at the forefront of these matters. The court has decided on the custody of children based on their age, without consulting their views.
Therefore, the judge must ask the children about their education, where they want to live, culture, life opportunities, and custody issues, either in person or through an appeal (Supreme Court HGK Decision No. 2011/2-884 dated 16.03.2012 – Decision No. 2012/197 and Decision No. 2013/2-2085 dated 22.01.2014 – Decision No. 2014/30) and, if necessary, the reappointment of experts such as psychologists, pedagogues, and social service specialists (Law No. 4787, Article 5), assessing the living conditions of the child with the mother and father, evaluating the content of the social investigation report, and deciding which parent is in the best interests of the child based on the evaluation of all evidence, and making a decision accordingly. If this is found to be incorrect, a decision is made. Issuing a written decision based on an incomplete investigation.
CONCLUSION: For the reasons stated in paragraphs (1), (2), and (3) of the above appeal ruling, and based on the grounds for violation in paragraph (3), the defendant-plaintiff is acting in the best interests of the children.
There is no room for evaluating objections to the currently determined amount of alimony;
the objection that the advance payment should be returned to the depositor upon request within 15 days of the notification of this decision
was unanimously accepted, and the path for correction is open.