Adultery is grounds for divorce under Turkish Law. Indeed, if one of the married parties commits adultery, the other married partner may file for divorce pursuant to Article 161 of the Turkish Civil Code ("Civil Code"). According to Article 174 of the Civil Code, the faultless spouse, or the spouse bearing less fault, whose existing or expected interests are damaged due to divorce, may claim adequate material compensation from the party at fault in the divorce claim. Moreover, according to this provision, the party whose personal rights are damaged due to the events that have caused the divorce may claim an adequate amount as moral damages from the spouse at fault. In addition, the party who finds himself/herself in financial distress because of the divorce may claim maintenance, indefinitely, for his/her subsistence, provided that the financial strength of the spouse at fault is greater than the injured spouse.
All these consequences derive from the fact that the marriage is a contract that creates certain relative obligations between the spouses.
There is no provision in the Law as to whether the spouse filing for divorce due to adultery may claim moral compensation from the third person who has a relationship with the spouse involved in the adultery. This question has prompted many discussions in legal literature. It is also elaborated upon in many decisions of the Court of Cassation, and has finally been settled with the non-published Decision of the Joint Chambers of the Court of Cassation dated 6.7.2018.
Different Opinions in the Doctrine
As we have already pointed out, in the event one spouse violates the loyalty obligation that arises due to marriage contract, it is a rather disputed subject whether or not the injured spouse may claim compensation from the third person who has had the extra-maritial relationship with the spouse who has committed the adultery1.
According to one opinion, it is not possible to award compensation to the detriment of the third person, as there is no regulation in law in this direction. In fact, according to this view, the loyalty obligation is a relative obligation that exists only between the spouses. Third persons are under no such an obligation towards the spouse of the person he/she has been in a relationship with. According to this opinion, the person who has been involved in an extra-marital relationship with the adulterous spouse has not violated any absolute right of the deceived spouse2.
According to another view, although the third person is not under any contractual, relative obligation towards the deceived spouse, he/she may be liable because of the violation of an absolute right. Accordingly, it should be accepted that a person's emotional wealth is included in personal rights; the emotional relationship in marriage should be considered within this scope and, thus, in the event of adultery, damages may be demanded from the third person who has violated the absolute right of the deceived spouse according to Turkish Code of Obligations ("TCO") Article 493. As an extension of this opinion, if the third party has acted with the sole purpose of harming the deceived spouse, he/she shall be liable under TCO Article 49/f.24. Furthermore, under the aforementioned provision: "Even if there is no provision of law that restrains the impairing act, the person who intentionally harms another with an immoral act is has to recover this loss."
The Court of Cassation Decisions Related to the Issue and the Conclusion that the General Assembly of the Unification of Case Law Have been Rendered
The Court of Cassation has differing decisions on this subject. For instance, the 4th Civil Chamber of the Court of Cassation concluded in its decision dated 7.6.2016 as follows:
"The decision must be reversed as it is not proper to accept the claim while it is required to completely decline it, considering the fact that the loyalty obligation belongs only to the spouse, and it is not possible to claim compensation by way of reflection. It is not possible to hold that an illegal act has been committed by the Respondent/Counterclaimant contrary to the physical and psychological unity of the Claimant. The related Law has no provision with regard to the person with whom the spouse has breached his/her obligation. It is not possible to apply the provisions with regard to joint liability under the Turkish Code of Obligations numbered 6098. The Respondent/Counterclaimant cannot be held principally liable because of the damages suffered. In the same line, no joining act is required within the terms of existing legal provisions in order to accept an existence of an act that has been committed jointly. It is required that this act has been committed independently and principally. Moreover, considering tort liability within the framework of joining the breach of the loyalty obligation, which is a rather grand and ambiguous concept, this would render liability even more uncertain. For the reasons explained, above, as per Article 58 of the Turkish Code of Obligations, the acts of the Respondent/Counterclaimant may not be considered as acts that constitute an attack against the personal values of the Claimant. On the other hand, if the Respondent Counter-Claimant and the Claimant are divorcing, consensually, then the parties have declared that they have no material nor moral compensation claims against each other. In this instance, it must be accepted that the Claimant has waived its right to moral damages from the Respondent/Counterclaimant from any suffering during the marriage, in a consensual divorce. The Claimant cannot claim that a tort has been committed against him/her after the divorce has been granted. For this reason, it is required that the Court reject the claim of the Respondent/Counterclaimant, and partial acceptance of any tort claim is not allowed. For this reason, the decision is quashed." 5
On the other hand, the Supreme Court Assembly of Civil Chambers reached a different conclusion in its decision dated 22.3.20176. According to this decision, an extramarital relationship of a married person qualifies as an assault upon the social personal values of the injured spouse, and the act of the third person who is involved cannot be separated from this assault. Thus, the third party who is involved in the act, being aware of the marriage, is also responsible for damages suffered by the injured spouse. In other words, according to the Supreme Court Assembly of Civil Chambers, the defendant who has been involved in an emotional and sexual relationship with the spouse of the Claimant, while being aware of the fact that he/she is married, is liable, and this liability originates from the "tortious act" due to offence of good morals7.
Different decisions of the Supreme Court regarding the same topic has led to a consensus of the Supreme Court General Assembly on the Unification of Judgments, and the said Assembly has decided that the deceived spouse cannot claim compensation from the third person who has been involved in a relationship with the offending spouse, and who has been aware of the marriage, during the course of the marriage union, in its decision dated 6.7.2018 which has not yet been published.
The issue as to whether the deceived spouse may demand moral compensation from the third person who has had a relationship with the offending spouse is a question that has been occupying the literature and the Court of Cassation for many years, differing opinions exist with regard to this issue. Be that as it may, this issue has been resolved by the Decision of the Joint Chambers of the Court of Cassation that is binding upon all of the courts, and it has been decided that the deceived spouse shall not be able to claim moral compensation from the third person.
1 For the other opinions on this issue, see. Mehmet ERDEM, Aile Hukuk, İstanbul 2018, s. 195 vd.
2 In the same line, see Kemal OĞUZMAN/Özer SELİÇİ/Saibe OKTAY-ÖZDEMİR, Kişiler Hukuku, İstanbul 2016, s. 183; Rona SEROZAN, s. 464.
3 According to the same provision, "The persons who injure another person with fault and with an illegal act is obliged to compensate this damage"
4 Bilgehan ÇETİNER, "Aldatılmış Eş Manevi Tazminat Talep Edebilir mi?", İstanbul Kültür Üniversitesi Hukuk Fakültesi Dergisi, 15 (2), 2016, 523 vd.
5 Court of Cassartion 4th Civil Chamber, 7.6.2016, 196/7383. In the same line see. Court of Cassartion 4th Civil Chamber, 7.5.2015, 6538/5839; Court of Cassartion 4th Civil Chamber, 29.4.2010, 7418/5016.
6 General Assembly of Civil Chambers of the Court of Cassation, 22.3.2017, 4-1334/545.
7 In the same line, see, General Assembly of Civil Chambers of the Court of Cassation, 24.3.2010, 4-129/173
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