Legal Department
Case Number: 2020/2125
Decision Number: 2020/3438
“Text of Justice”
COURT: Family Court
CASE TYPE: Mutual Divorce
The defendant-counterclaimant woman has appealed the decision issued by the local court in the case between the parties mentioned above, which was appealed in terms of fault determination. The document was read and the necessary matters were discussed: The plaintiff-counterclaimant male filed for divorce on 04.09.2014 based on Article 166/final of the Turkish Civil Code. While the case was ongoing, the plaintiff-counterclaimant male passed away on 01.12.2014. The divorce case was filed by the heirs of the plaintiff-counterclaimant man. The case continued in accordance with the relevant article for the determination of fault, and as a result of the court’s proceedings, a decision was made to accept the case and the counterclaim.
However, the decision that there was no need to rule on this matter due to the marriage ending with death was appealed by the defendant-counterclaimant woman.
With our annulment decision dated 02.28.2019 and numbered 2019/927 and our decision numbered 2019/1900, it was decided in the operative part of the court’s reasoned decision that both divorce cases should be accepted and that there was no need to rule on this matter due to the marriage ending with death.
It was decided to overturn the decision stating that the marriage had ended due to death because the divorce cases were unsuccessful, and the case was continued by the deceased’s heirs for the purpose of determining fault. As a result of the annulment case filed by the court, with the decision dated 12/09/2019, it was ruled that there was no need to decide on the divorce request due to the marriage ending with death and that both parties were equally at fault in the events leading to the divorce, and the defendant-counterclaimant woman appealed this decision.
The divorce case filed by the deceased was based on Article 166/final of the Turkish Civil Code and was heard between the parties in the divorce case subject to the decision of the Bakırköy 7th Criminal Court of First Instance dated 12/09/2019. 2007/190 – 2008/184, male. It was decided to combine the divorce case filed based on the grounds of abandonment as stipulated in Article 164 of the Turkish Civil Code with the alimony case filed by the woman based on Article 197 of the Turkish Civil Code. The divorce case was dismissed on the grounds that the woman had the right to live separately, while the combined alimony case was partially accepted.
It is understood that the deceased man, who was the plaintiff-counterclaimant, sent a letter to the defendant-counterclaimant woman on 12/20/2005, requesting her to return to their shared residence. This constitutes a declaration of intent that the spouse’s wrongful conduct prior to the date of the warning was forgiven, or at least tolerated, and that he therefore wished to live together again. Forgiven or tolerated events cannot be grounds for divorce.
It is understood that the deceased man, who was the plaintiff-counterclaimant, forgave his spouse’s mistakes prior to the warning in this manner, and that the parties did not reunite after the date of the warning; therefore, the existence of a new event that could cause divorce by the defendant-counterclaimant woman could not be proven. In this case, it has been determined that it is not correct to issue a written decision at the place where the decision is to be made that the surviving spouse (the defendant-counterclaimant woman) has no fault that would cause divorce and that the marriage should be annulled.
CONCLUSION: For the reasons stated above, it has been unanimously decided to overturn the appealed decision, to refund the appeal fee to the payer upon request within 15 days of notification of this decision, and to keep the possibility of correction open. 06.29.2020 (Monday)