166/1 of the Turkish Civil Code. in order for a divorce to be decided in accordance with the article, the marriage union must be shaken from its foundation to such an extent that they are not expected to lead a common life. The fact that the spouses continue to live together while the divorce case is ongoing shows that the foundation of the marriage union has not been shaken and that it is actually possible to maintain a common life.
Spouses may declare that they have forgiven each other while the divorce proceedings are ongoing, or they may commit acts related to this. In this case, it is decided to reject the filed and ongoing divorce case. This statement may be either explicit or implied. In this sense, according to the Supreme Court case law, for example, the fact that the spouses go on vacation together while the divorce case is ongoing or continue to live in the same house means that they have tacitly forgiven each other or that the foundation of the marriage union has not been shaken.Again, the messaging of the spouses with each other and the sexual intercourse of the spouses are also examples of forgiveness behaviors. As a result, the court will also decide on the rejection of the divorce case.
If the spouses have come together and made up after the divorce case and started living together with the will to continue the marriage union, a divorce cannot be decided based on Dec reasons for the previous divorce case. However, if the reasons are based on the reasons after the reconciliation and Decoupling, these facts must be proven separately in order to be able to decide on a divorce.
Since the parties reunite and reveal Dec Dec will to continue their marriage by forgiving past events, it must be recognized that they have forgiven each other in terms of the events that have passed between them until then. In this case, it is not possible to rely on the events before the parties forgave each other as a reason for the divorce and to make a divorce decision for the same reason.
If a long time has passed since the reasons for filing a divorce due to the fact that the marriage union has been shaken from its foundation, the divorce case filed will be rejected. Despite these reasons, it is accepted that the marriage union has not been shaken because the marriage union continues and the spouses continue to live together. It is determined within the framework of the honesty rule that the elapsed time is long. In a divorce case based on the reason for living a life without dignity, there is no time limit for rights reduction. Within the framework of the rule of honesty, this reason can always be relied on. However, since the divorce case based on living a life without dignity, which has already been filed after many years, has eliminated the requirement that the marriage union become unbearable, the case is rejected on this grounds. In a divorce case due to adultery, the right to sue is dropped after six months have elapsed since the fact that the act of adultery has been learned and in any case five years have elapsed since the fact that the act has occurred. Again, 161 and 162 of the Turkish Civil Code. as mentioned in the articles, the right to file for divorce after the expiration of six months and five years for adultery and other caste reasons will be reduced, as well as forgiveness by written or oral declaration or committing acts of an amnesty nature in the light of Supreme Court decisions.
The Decision of the Supreme Court on the Issue
T.C
SUPREME
GENERAL ASSEMBLY OF LAW
BASE NO.2011/2-634
DECISION NO.2011/720
DATE OF DECISION.30.11.2011
DIVORCE
SHAKING UP THE MARRIAGE UNION
“text of jurisprudence”
At the end of the trial held due to the “divorce” case between the parties; Eskişehir 2. Dec.The 12.11.2009 day and 2009/189 E. issued by the Family Court on the acceptance of the case, 2009/879 K. upon request of the defendant’s deputy to examine the decision No. 2 of the Court of Cassation.The day of 01.03.2011 of the Legal Department and 2010/233 E., 2011/3546 K. with Ref No.;
(… It is understood that after the events mentioned in the plaintiff’s witness statements, the parties reconciled and met on Dec. 14, 2009.
In accordance with Article 166/1-2 of the Turkish Civil Code; In order for a divorce decision to be made, it must be fixed that the marriage union is shaken from its foundation to such an extent that the spouses are not expected to lead a common life. However, some of the words of the plaintiff witnesses who were heard are statements that are not suitable for accepting the state of shaking from the basis contained in Article 166/1 of the Turkish Civil Code, and some of them are explanations that are not explained by reason and motive and are far from convincing. In this respect, while the case should be dismissed, it is against the procedure and the law to make a mistake in the discretion of the evidence and decide to divorce on insufficient grounds…….) At the end of the retrial, which was overturned on the grounds of being reversed to the place of file; the court resisted the previous decision.
THE APPELLANT: The defendant’s deputy
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:
The case concerns the request for divorce, material and moral compensation and alimony.
Decrying that the marriage union between the parties was shaken due to the defendant’s defective behavior, the plaintiff’s deputy requested that the parties be divorced, custody of the child to be born be given to the plaintiff, injunction and poverty for the plaintiff, alimony for the child to be born, and financial and moral compensation be decided in favor of the plaintiff.
The court decided to accept the divorce case, grant custody to the plaintiff, and partially accept the alimony and non-pecuniary compensation claim.
Upon the appeal of the defendant’s attorney, the decision was overturned by the Special Department on the grounds written in the title section above.
The Local Court, the marriage union is a process and although all the events and perceptions in the process of incompatibility issues related to reconciliation in continuing for a period of togetherness that is considered to warrant the reversal of the nature of life, human psychology are not appropriate to the contrary conclusions reached in the event of a divorce, the first that happens to be adverse in the event that the state inappropriately such a conclusion can be reached by opening a case will, therefore, warrant reversal if it is not complied with, the reason for the previous decision stand; the provision has brought an appeal the defendant’s attorney.
As for the scope of the Decisions of Decisionand resistance; There is no dispute between the private department and the local court on this issue, as is evident from some witness statements, where the parties reconciled and met after some events that are shown as the basis for requesting a divorce in the current case.
The dispute is centered on the point whether the fact that the parties came together means that they forgave each other for previous events, and a divorce decision can be made based on these events; in addition, it is also not proven by the plaintiff that events that will Deconstruct the marriage union in the period after their Deconstruction have occurred on the basis of the plaintiff’s side.
After that marriage to be shaken from the events that caused the foundations of the Union, the parties will continue to make up and came back together and the marriage has begun to live with this situation means that you have forgiven each other, and cannot be granted a divorce on grounds prior to reconciliation(2007/2 day of the General Assembly of Supreme Court law 21.03.2007-156 E., 2007/157 K. No. 1). If it has been suggested that events have occurred after reconciliation that will Deconstruct the foundations of the marriage union between the parties, this should also be proven.
In the concrete case:
The fact that the parties came together after the events, which is shown as the basis for requesting a divorce, is also accepted by the court and the special chamber, as Dec by some witnesses.
Since the parties Dec Decoupled by reuniting, forgiving past events, showing the will to continue their marriage, it is necessary to accept that they have forgiven each other in terms of the events that have passed between them up to that time.
As a result, it is not possible to rely on events before the parties forgive each other as a reason for divorce and to make a divorce decision for the same reason.
On the other hand, witness statements, and file according to the scope, the parties get together and they forgive each other in the next period, the foundation of the marriage union between them is shaken enough to accept that the presence of the plaintiff is not also an event that could be proven to yanc.
In that case, it is necessary to comply with the decision to disrupt the Special Chamber adopted by the General Assembly of the Law on the additional grounds described above, while it is contrary to the procedure and law to resist the previous decision.
Therefore, the decision to resist must be overturned.
CONCLUSION: The decision of the defendant’s deputy to resist with the adoption of appeals is based on Article 30 of Law No. 6217 on the decision to disrupt the Private Circle and for the reasons shown above.article 429 of the Code of Civil Procedure No. 1086, which is being applied with the reference to “Provisional article 3” added to the Code of Civil Procedure No. 6100. In accordance with the article, it was decided by a majority vote on 30.11.2011 to CANCEL it, return the advance fee of the appeal to the depositor if requested.
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