Divorce Due to Adultery in Turkish Law | 2026 – Atty. Ozan Soylu
With the conclusion of a marriage contract, certain obligations arise between the spouses. The foremost of these obligations is the duty of fidelity under Article 185 of the Turkish Civil Code. If this obligation is violated, divorce may only be granted through legal proceedings. If adultery, which is considered a special ground for divorce under Article 161 of the Turkish Civil Code, is committed, a divorce lawsuit based on adultery may be filed. The absence of fidelity between spouses is legally recognized as a ground for divorce.
Definition of Adultery and Acts Considered as Adultery
Adultery is defined as the intentional and voluntary sexual intercourse between a married man or woman and a person of the opposite sex who is not their spouse. Thus, sexual relations between unmarried individuals are not considered adultery.
Sexual relations between a married person and someone of the same sex are not regarded as adultery. However, such acts violating the duty of fidelity may constitute grounds for divorce under irretrievable breakdown of the marriage or immoral lifestyle.
Sexual relations with objects, animals, or deceased bodies are not considered adultery either. Likewise, artificial insemination performed without the husband’s consent is not deemed adultery. It is important to emphasize that a married woman should not engage in sexual relations with another man.
Dating, correspondence, messaging, kissing, or hugging do not amount to adultery. Phone calls, messaging, or riding in another person’s vehicle are also not considered adultery.
However, such behaviours may be considered as grounds for divorce based on irretrievable breakdown of the marriage, depending on circumstances. Conduct creating insecurity or suspicion may justify divorce on these grounds, although it does not constitute adultery itself.
Where adultery remains at the attempt stage, a different legal assessment applies. The crucial factor is whether the marriage has irretrievably broken down. In such situations, filing for divorce on the grounds of irretrievable breakdown is more appropriate than relying on adultery.
Adultery must occur while the marriage is still in effect. Sexual relations before marriage (engagement or dating periods) or after the marriage ends do not constitute adultery.
Capacity to Distinguish and Fault in Adultery
Adultery must be committed knowingly and voluntarily. If a spouse engages in sexual intercourse due to permanent or temporary loss of reasoning ability (e.g., intoxication or hypnosis), they are not deemed at fault and the act is not considered adultery.
However, if the loss of reasoning ability results from the spouse’s own wrongful conduct and leads to sexual intercourse, the act may be treated as adultery.
For instance, if a married woman deliberately spends the night with another man after excessive alcohol consumption, this may still be regarded as adultery despite her impaired judgment.
Adultery and Forgiveness: Legal Consequences in Divorce Cases
Article 161/3 of the Turkish Civil Code grants the cheated spouse the right to sue for divorce based on adultery. However, forgiveness results in the loss of this right.
Forgiveness does not require an explicit declaration; emotional or factual conduct may demonstrate it. Whether written or oral, forgiveness has the same legal effect, including forgiveness communicated to a third party.
For example, continuing cohabitation for economic or child-related reasons does not amount to forgiveness. True forgiveness must be shown through reconciliatory or intimate conduct, such as shared trips or resumption of marital intimacy.
The Court of Cassation ruled: “Marriage imposes a mutual duty of loyalty (TMK 185/III). If this duty is violated, the cheated spouse may file for divorce and claim non-pecuniary damages. A spouse who does not sue based on adultery is considered to have forgiven and cannot claim moral damages.”
Time Limits for Divorce Lawsuits Based on Adultery
Under Article 161/2 of the Turkish Civil Code, the lawsuit must be filed within six months of learning about adultery and within five years of its commission. If these deadlines expire, the right to sue lapses.
However, if the adulterous spouse has been forgiven, expiration of these deadlines does not affect the right to file for divorce based on irretrievable breakdown of the marriage.
Mere suspicion does not trigger the time limit; definite knowledge of the act is necessary.
Means of Proof in Divorce Cases Based on Adultery
The burden of proof lies with the plaintiff. The defendant’s passivity does not relieve the plaintiff of this burden.
Under procedural law, evidence cannot be submitted after the two-week period determined at preliminary examination. Therefore, acts of infidelity occurring during the pending lawsuit cannot be introduced as evidence and must be addressed in a separate lawsuit.
Since adultery is often concealed, direct proof is difficult. Courts may rely on circumstantial evidence and witness testimony; catching the act in flagrante is not required.
Main Methods of Proof Supporting Allegations of Adultery
Pregnancy tests may serve as strong evidence, particularly if one spouse is infertile. Pregnancy or virginity reports may support claims.
Sexually transmitted diseases may indicate contact with a third party.
Photographs and visual materials are commonly used yet must be corroborated with other evidence.
Communication records — letters, computer logs, telephone calls, and audio recordings — may be admitted as evidence.
Witness statements are crucial, especially when supported by other evidence.
Protection of Privacy and Principles of Lawful Evidence Collection in Divorce Cases
Balancing privacy rights with legal protection is a sensitive issue. Private life, home immunity, and communication freedom are respected under law, so evidence obtained unlawfully is generally inadmissible.
Sometimes attempts to prove adultery involve intrusion into privacy, but this does not eliminate the requirement to collect lawful evidence.
The Court of Cassation ruled: “Recording non-private conversations to prove breach of fidelity does not violate privacy and should not be considered unlawful.”
In another ruling, evidence obtained through monitoring software installed on a spouse’s phone was held admissible. Conversely, another court deemed such recordings unlawful.
Nevertheless, the Court held: “Even if audio obtained via monitoring software is unlawful, adultery may still be proven when supported by witness testimony, call logs, and photographs.”
Evidence obtained through deception, such as impersonating someone on social media to obtain information, is inadmissible.
Public social media photos may be used regardless of how they were accessed.
Information voluntarily shared by third parties, such as screenshots or messages, may be used.
However, evidence obtained via secret surveillance devices installed without consent is unlawful. Witness testimony based on violation of privacy — such as spying — is also inadmissible.
Access to a spouse’s phone or social media is only lawful when it occurs naturally within shared life; information obtained without special effort may be submitted as evidence.
Limits of Evidence Evaluation and Judicial Authority in Divorce Cases
Article 184/4-b of the Turkish Civil Code gives judges discretion in evaluating evidence. However, this discretion is not unlimited. Procedural law requires judges to justify their assessment, and decisions are reviewable by the Court of Cassation.
Competent and Authorized Court in Divorce Cases Based on Adultery
Under Article 168 of the Turkish Civil Code, divorce cases may be filed in the residence of either spouse or the location where they lived together in the last six months.
The competent court for divorce matters is the Family Court; where unavailable, designated Civil Courts of First Instance assume jurisdiction.
Consequences of Divorce Based on Adultery
Even without request, the court rules on property division, compensation, child custody, alimony, and personal contact rights. Particular emphasis is placed on the adulterous spouse’s entitlements in the statutory property regime.
Property Division Following Divorce Based on Adultery
The marital property regime ends when the divorce case is filed. Its termination date cannot be retroactively altered.
Under Article 179, liquidation occurs according to the relevant provisions, referencing timing rules.
Property liquidation must occur within the divorce case, unless exceptional delay justifies separate proceedings. Until divorce is finalized, liquidation cannot commence. Where the regime ends for other reasons, liquidation may occur while marriage continues.
Pecuniary Compensation in Divorce Based on Adultery
Pecuniary compensation is paid by the at-fault spouse to compensate financial losses of the innocent or less-faulty spouse. Its aim is to maintain the injured spouse’s standard of living after divorce.
Because measuring financial harm is difficult, Article 174/1 requires determination of appropriate compensation.
Advantages lost due to divorce, such as worsened living conditions or medical expenses related to adultery, may be considered. The claimant must be less at fault — equally at-fault spouses cannot claim.
Compensation is decided considering economic status, duration of marriage, degree of fault, and other circumstances. Payment is typically lump sum unless otherwise ruled.
Non-Pecuniary Compensation in Divorce Based on Adultery
Article 174/2 allows non-pecuniary damages where personal rights are violated. The compensation must prevent unjust enrichment or excessive harm.
Where adultery seriously damages dignity and honour, such claims may be accepted. A spouse who tolerates adultery cannot later seek moral damages.
Degree of fault is decisive. Emotional reactions such as insults following adultery do not constitute fault. Equal-fault spouses cannot claim either compensation type.
Interim Measures During Divorce Proceedings
Article 169 authorizes courts to impose temporary measures during divorce proceedings, including housing, alimony, property management, and child care. Measures are applied according to spouses’ social and economic situation from filing date and may be adjusted based on changes.
These are temporary arrangements valid during litigation.
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