Republic of Turkey
Supreme
General Council of Civil Law
Ref. No. 2012/2-527, Case No. 2012/767, Date: November 7, 2012
CASE:
Following the conclusion of the proceedings regarding the “divorce, alimony, moral damages, and alimony” cases between the parties; the Family Court issued its decision on January 13, 2009, under Case No. 2008/726, granting the divorce petition and partially granting the alimony petition., Upon the defendant-counterclaimant’s request in Case No. 2009/819, the Supreme Court reviewed the defendant-counterclaimant’s first decision. By decision No. 2010/7774 E. dated May 16, 2011, the Civil Chamber announced the termination of the case under decision No. 2011/8480 K.;
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Based on the evidence in the file, the legal grounds for the decision, particularly considering the events leading to the divorce and the division of assets, the husband, who committed domestic violence against his wife, uttered statements such as “I don’t want a son,” insulted his wife’s relatives by saying “Take your child,” and refused to live with the plaintiff-defendant, is more at fault than the defendant-plaintiff; therefore, in accordance with the understanding that the court’s acceptance of equal fault is correct under Article 166/2 of the Turkish Civil Code due to the acceptance of the husband’s divorce petition, it has been determined that the woman’s objections in this regard and those outside the scope of the following paragraphs are groundless.)
Article 174/1, Paragraph 186 of the Turkish Civil Code states that the party who is free from fault or less at fault and who has lost existing or expected benefits due to the divorce may claim appropriate monetary compensation from the party at fault. The provision provides that spouses shall jointly select their home and contribute to the expenses of the union in proportion to their labor and assets.
Based on the evidence presented, it is understood that the spouse seeking monetary compensation due to the events leading to the divorce is not more at fault, or is equally at fault, compared to the other spouse. As a result of the divorce, this spouse has, at the very least, lost the other spouse’s financial support. In this situation, the court ruled that an amount of monetary compensation appropriate to the plaintiff’s interests must be awarded, taking into account the parties’ social and economic circumstances, their fault, and the principle of justice (Turkish Civil Code, Art. 4; PM, Arts. 42 and 44). It was deemed incorrect to disregard this matter.
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Article 174/2 of the Turkish Civil Code provides that a party whose personal rights have been violated due to events leading to divorce may claim moral damages from the at-fault party. Based on the evidence presented, it is understood that the defendant, who sought compensation due to events that undermined the foundations of the marital union, was not at fault to a greater or equal degree, and that these events constituted an infringement of their personal rights. In this case, the court must determine the amount of non-pecuniary damages appropriate for the plaintiff-defendant’s benefit by considering the parties’ social and economic circumstances, the gravity of the act giving rise to the claim, and the principles of equity (Turkish Civil Code, Art. 4; Code of Civil Procedure, Arts. 42, 43, 44, 49). It was deemed incorrect to disregard this matter… ).
At the conclusion of the retrial, the court objected to the previous decision.
After it was determined during the review by the General Assembly of the Court of Cassation that the objection to the decision had been raised and the documents in the file were examined, the necessary matters were discussed:
DECISION:
In light of the parties’ mutual claims and defenses, the records and evidence in the file, and the necessary grounds stated in the annulment decision, the decision of the Special Chamber to annul the decision must be upheld by the General Assembly; opposing the previous decision is contrary to procedure and law. Therefore, the decision to oppose must be annulled.
CONCLUSION:
Pursuant to Article 30 of Law No. 6217, based on the reasons stated in the decision to overturn the Special Chamber’s decision to reject the defendant-counterclaimant’s appeal, concurrent with the acceptance of the defendant-counterclaimant’s appeal; pursuant to Article 429 of the Civil Procedure Code No. 1086, it has been applied in conjunction with the “Transitory Article 3” added to Article 4 of the Civil Procedure Code No. 6100. Pursuant to Article 440/1 of the same Code, it was decided by unanimous vote on November 7, 2012, that the filing fee be refunded to the payer upon request, and that the motion to correct the decision be filed within 15 days from the date of service, in accordance with Article 440/1 of the same Code.