Turkish Supreme Court, 2nd Civil Chamber, Main File No.: 2016/13219, Decision No.: 2016/11931
COURT: Family Court
TYPE OF CASE: Divorce
Regarding the decision rendered by the local court at the conclusion of the case between the parties on the date and number indicated above, which determined fault, compensation claims, the amount of alimony, identified the common children, and raised an objection regarding the custody of the children, the documents have been examined, discussed, and deemed necessary:
1-
Based on the items in the file, the evidence on which the decision is based, the legally valid reasons, and in particular the absence of any error in the evaluation of the evidence, the plaintiff’s objections outside the scope of the following paragraphs are inappropriate.
2-
While the defendant, the man in the case file, claimed during the investigation phase that the plaintiff, the woman, had fulfilled her role as a spouse as determined by the court and that the parties had not fulfilled their responsibilities in the events leading to their divorce, it is understood that the conclusion was reached that both parties were equally at fault in the case, that the decision in the divorce case was in favor of the woman regarding alimony, that custody was granted to the defendant, and that the woman decided to reject the allegations.
Article 141 of the Code of Civil Procedure, under the heading “Extension or modification of claims and defenses,” contains the following provision: “(1) The parties may freely extend or modify their claims or defenses during the preliminary examination stage with the express consent of the other party. If one of the parties fails to appear at the preliminary examination hearing without excuse, the appearing party may extend or amend their claim or defense without the consent of the other party. After the preliminary examination stage is completed, claims or defenses cannot be expanded or modified.“ (2) The provisions on withdrawal and the other party’s express consent to the expansion and modification of claims and defenses are reserved.”
In accordance with the above-mentioned provision of the petition stated in the grounds for the parties’ mutual agreement, they are permitted to amend their claims and defenses without any restriction within the general framework of the dispute… undoubtedly, this possibility applies only to the answer and the second answer petition. After the two petitions, any petitions submitted under any name must be accepted within the scope of the statute of limitations and prohibition.
.
At the preliminary examination stage, the expansion or modification of claims or defenses is only accepted if the other party’s explicit consent is obtained (or if one of the parties fails to appear at the preliminary examination hearing without excuse). (Supreme Court General Assembly Decision No. 2016/522 dated 20.04.2016, No. 2014/2-695) In this case, since no response was submitted within the period following the proper service of the complaint to the defendant on July 14, 2014, the evidence forming the basis of the defense was not presented (HMK Art. 129/1-e). Since the local court had no legal possibility to grant the defendant a period to submit evidence, it must be accepted that there was no legal possibility.
Therefore, it was not considered correct to attribute a deficiency to the plaintiff woman due to the defendant’s failure to submit a response within the time limit and to submit evidence. Pursuant to Article 174/1-2 of the Turkish Civil Code, in the interest of the plaintiff woman, the defendant man, who failed to fulfill his marital duties, had alcohol and gambling habits, and insulted his wife and her family, was found to be fully at fault, and the following conditions were determined in the interest of the plaintiff woman. However, since the court found both parties equally at fault and determined this erroneous fault, the rejection of the plaintiff’s claims for material and moral damages was incorrect and must be overturned.
3-
The social and economic circumstances of the parties, the nature of alimony, current economic conditions, and the amount of alimony for poverty determined in the plaintiff’s interest are insufficient. Taking into account the principle of fairness set forth in Article 4 of the Turkish Civil Code, the court should determine a more appropriate amount of alimony. The issuance of a written judgment without complying with this guideline is contrary to procedure and law.
CONCLUSION:
2. Regarding the contested ruling and 3. As stated in the first paragraph above, the other parts of the appeal that fall outside the scope of the violation have been harmed. For the reasons stated in paragraph 1, it has been unanimously decided that, upon request, the application fee shall be refunded to the payer and the procedure for rectifying the decision shall be initiated within 15 days of the notification of this decision. 20.06.2016