Court: Family Court
Type of case: Divorce
Following the presentation of the grounds for the case between the parties, the judgment rendered by the local court on the date and under the case number specified above, the identification of deficiencies by the plaintiff, the dismissal of claims for damages as not constituting a criminal offense, the amount of alimony due to poverty, the joint children… and… the objection regarding child custody—the documents were read, discussed, and deemed necessary:
1- Based on the items in the case file, the evidence upon which the decision is based, and the legal grounds, and particularly since no error was found in the evaluation of the evidence, the plaintiff’s objections outside the scope of the following paragraphs are unfounded.
2- According to the information in the defendant’s file, the plaintiff failed to respond to the petition filed during the investigation phase, in which the plaintiff alleged that the defendant had fulfilled his marital duties as determined by the court but had failed to fulfill his responsibilities regarding the events leading to the parties’ divorce. This situation led to the conclusion that both parties were at fault; in the divorce case, a decision was rendered in favor of the wife regarding alimony, and custody was granted to the husband, although it was understood that the court had decided to reject the wife’s claims.
Expansion or Amendment of Claims and Defenses Article 141 of the Code of Civil Procedure: “(1) If the parties are in the preliminary examination phase, they may freely expand or amend their claims or defenses with the express consent of the other party. If one of the parties fails to appear at the preliminary hearing without a valid reason, the appearing party may expand or amend their claim or defense without obtaining the other party’s consent. After the preliminary examination stage is completed, claims or defenses may not be expanded or amended. (2) The provisions regarding objections and the express consent of the other party remain reserved for the expansion and amendment of claims and defenses.”
The provision of the parties’ respective pleadings cited in the reasoning of the mutual stages has permitted them to amend their claims and defenses without any restrictions within the general framework of the dispute… Undoubtedly, this opportunity applies only to the response to the answer and the reply to the second answer. After these two pleadings, any pleadings submitted under any name whatsoever must be accepted within the scope of the statute of limitations and the prohibition.
During the preliminary examination phase, the expansion or amendment of claims or defenses is accepted only with the other party’s express consent (or if one of the parties fails to appear at the preliminary examination hearing without cause). (Supreme Court General Assembly Decision No. 2014/2-695 dated April 20, 2016, and No. 2016/522) In this case; Since the defendant failed to file a response within the defense period, the defendant was duly notified of the complaint on July 14, 2014 (HMK Art. 129/1-e); given that the local court was not in session, it must be accepted that it was legally impossible to grant the defendant a period to submit evidence.
Under these circumstances, considering that the defendant failed to file a response within the defense period and thus did not present his evidence, it was determined that it would be incorrect to attribute fault to the plaintiff woman pursuant to Article 174/1-2 of the Turkish Civil Code. The defendant, who failed to fulfill his alimony obligations, had habits of alcohol and gambling, and insulted his wife and her family, was found at fault for the events leading to the divorce, to the benefit of the plaintiff. However, the court determined that both parties were equally at fault and, based on this determination of shared fault, concluded that rejecting the plaintiff’s claims for material and moral damages was incorrect and constituted a violation of the law.
3- Given the parties’ social and economic circumstances, the nature of the alimony, and current economic conditions, the amount of poverty alimony awarded in favor of the plaintiff is insufficient.
4- Taking into account the principle of justice set forth in the relevant article of the Turkish Civil Code, a more appropriate amount of alimony should be determined. Issuing a written ruling without considering this matter is contrary to procedure and law.
Conclusion: The ruling specified in Article 2. and for the reasons stated in paragraphs 3, due to the instances of misconduct and damage not covered by the scope of the appeal in the other parts of Article 1 above, it was decided by unanimous vote to approve the reasoning, to refund the advance fee paid for the appeal to the Appellant if requested, and to allow for the correction of this decision within 15 days from the date of its service. June 20, 2016