Divorce Due to Adultery in Turkey

DIVORCE DUE TO ADULTERY IN TURKEY 

Upon the establishment of the marriage contract, certain obligations arise between spouses. Primary among these obligations is the requirement, as stated in Article 185 of the Turkish Civil Code, for spouses to remain faithful to each other. If there is a breach of the obligation of fidelity, divorce can only be pursued through legal action. A divorce case due to adultery can be initiated with the commission of adultery, which is specified as a specific grounds for divorce in Article 161 of the Turkish Civil Code. The situation where spouses do not remain faithful to each other is legally recognized as a grounds for divorce.

Definition of Adultery and Acts Considered as Adultery

Adultery refers to the intentional and knowing engagement in sexual intercourse by a married man or woman with a person of the opposite sex who is not their spouse. In this context, sexual relations between unmarried individuals are not considered adultery.

Sexual relations between a married person and someone of the same sex are not considered adultery. However, actions that violate the obligation of fidelity, such as these, may constitute grounds for divorce on the basis of undermining the foundation of the marital union or leading an indecent life.

Situations such as relations with objects, animals, or corpses are not considered adultery. Similarly, a woman undergoing artificial insemination without the consent of her husband is not considered adultery. In such a case, it is important to emphasize that the crucial issue is that a married woman does not engage in sexual intercourse with another man.

Activities such as flirting, correspondence, messaging, or physical closeness such as kissing, hugging are not considered adultery. Also, actions such as talking on the phone, sending messages, or riding in someone’s car/bicycle are not considered adultery.

However, these behaviors can be perceived in ways that undermine the foundation of the marital union depending on the circumstances. For example, behaviors that could create insecurity or suspicion between spouses may be considered as undermining the foundation of the marital union. In this case, a divorce case can be filed on the grounds of undermining the foundation of the marital union, but this situation is not directly classified as adultery.

On the other hand, situations where adultery is attempted but not completed require a different assessment. Here, the crucial issue is the undermining of the foundation of the marital union. If a spouse is faced with a situation where adultery is attempted, it would be more appropriate to file for divorce not on the grounds of adultery, but on the grounds of undermining the foundation of the marital union. This is based on fundamental issues that the continuation of the marital union is not mandatory, rather than whether the act of adultery has occurred or not.

Adultery must occur while the marital union is ongoing. Sexual relations between spouses and third parties before marriage (during engagement or courtship) or after the termination of marriage are not considered adultery.

Capacity to Distinguish and Fault in Adultery

The spouse committing adultery must engage in extramarital sexual intercourse intentionally, knowingly, and willingly. It is emphasized that if a spouse is permanently or temporarily deprived of their capacity to distinguish (for example, due to intoxication, hypnotism, etc.), they cannot be considered at fault if they engage in sexual intercourse with another person, and therefore, such sexual intercourse cannot fall under the scope of adultery.

However, if the loss of capacity to distinguish of a spouse is due to a culpable behavior and they engage in sexual intercourse with another person as a result, this situation is considered adultery.

If a married woman knowingly spends the night with another man or a single male friend after excessive alcohol consumption, this situation may be considered adultery. Even if she has lost her capacity to distinguish due to alcohol, knowingly engaging in such a relationship implies fault in terms of fidelity to marital obligations. Therefore, such behavior can be classified as adultery.

Adultery and Forgiveness: Legal Implications in Divorce Cases

Article 161/3 of the Turkish Civil Code states the right of the other spouse to file for divorce due to adultery committed by one spouse. However, as part of this article, if the victimized spouse (the one who was cheated on) forgives the adulterous act, meaning they pardon this act, they lose the right to file for divorce.

This forgiveness process may reflect a desire for reconciliation or getting back together in the relationship between the spouses. In a situation where forgiveness has occurred, a divorce case cannot be filed later due to the undermining of the marital union caused by the act of adultery.

If there is already a divorce case filed due to adultery, the adulterous spouse can claim that the victimized spouse’s right to sue has been waived by proving this forgiveness. This means that forgiveness of adultery results in the dismissal of the divorce case.

Forgiveness may not necessarily be expressed explicitly by the spouse; it can also be demonstrated through emotional or concrete actions. Additionally, in terms of its legal consequences, forgiveness, whether expressed through written or verbal statements, holds the same effect. Forgiveness expressed to a third party also has the same consequence, meaning the right to file for divorce due to adultery is forfeited.

For example, continuing to live together for economic reasons does not necessarily imply forgiveness of adultery. This situation can be interpreted merely as the continuation of joint life due to economic, social, or the future of children.

To demonstrate that forgiveness indeed exists, spouses must clearly indicate their intentions through sincere actions, such as traveling together or maintaining intimate relationships. Such behaviors can support the existence of forgiveness and the expiration of the right to file for divorce.

Time Limitations in Divorce Cases Due to Adultery

Divorce cases due to adultery are subject to specific time limitations. According to Article 161/2 of the Turkish Civil Code, a divorce case must be filed within six months from the date adultery is discovered or within five years from the date the adultery was committed. If these periods expire, the right to file a lawsuit is forfeited.

However, if the adulterous spouse has been forgiven, the expiration of the time limits does not affect the right to file for divorce due to the undermining of the marital union.

The time does not start running only in cases of doubt or uncertainty. The spouse must have definite information about the adultery act. Additionally, investigations or suspicions to ascertain whether the adultery act occurred are not sufficient to trigger the running of the time limit.

Evidence in Divorce Cases Due to Adultery

The burden of proof in divorce cases due to adultery lies with the plaintiff spouse. When the plaintiff proves the act of adultery, the lawsuit is accepted. The silence of the defendant in the lawsuit does not exempt the plaintiff from the burden of proof.

In divorce cases due to adultery, evidence must be presented in accordance with the time and methods specified in the Code of Civil Procedure. According to the Code of Civil Procedure, as a general rule, evidence cannot be presented after the two-week period following the preliminary hearing. Therefore, evidence cannot be presented for acts of infidelity such as adultery during the divorce case process, and these acts cannot be evaluated within the scope of the current lawsuit. However, adultery that becomes known later can be brought up in a new divorce case.

Since adultery often occurs clandestinely between the parties, the process of proving it is generally not easy. Because catching the parties red-handed is often difficult, allegations of adultery must be supported by witness statements. Therefore, in cases where there is strong evidence indicating adultery, the judge may grant a divorce without the need for catching the spouse in the act. In this context, it can be stated that catching the spouse red-handed is not an absolute requirement, and an approximate proof, although not strong, may be sufficient.

Primary Methods Supporting Allegations of Adultery

Proving or refuting allegations of adultery may require the use of various methods. The primary methods used to determine the truthfulness of allegations include:

Firstly, the pregnancy status. Especially if one spouse has infertility issues or lacks male genitalia, the pregnancy of the spouse can be considered as strong evidence supporting the allegation of adultery. Additionally, corroborative medical documents such as pregnancy tests and virginity reports can be crucial in this regard.

Sexually transmitted diseases can also serve as another indicator. The emergence of such diseases may suggest that one spouse has had sexual relations with a third party and can be considered as evidence supporting the allegation of adultery.

Photographs and other visual materials are commonly used to prove allegations of adultery. However, such evidence may need to be supported by other evidence for stronger consideration by the court.

Communication devices are also used to confirm allegations of adultery. Evidence such as letters, computer records, phone calls, and voice recordings can be taken into account in judicial decisions and play a significant role in confirming allegations of adultery.

Finally, witness testimonies are another method used to support allegations of adultery. Witnesses are selected from individuals outside of the parties to the case and play a critical role in demonstrating the accuracy of the adultery allegation with statements based on concrete observations. Witness testimonies, when supported by other evidence, are quite common in divorce decisions taken due to adultery.

Balancing Privacy of Private Life and Legitimate Evidence Gathering Principles in Divorce Cases

The balance between the privacy of private life and the freedom to seek justice is a sensitive issue often encountered in divorce cases. Legal systems respect individuals’ private lives, inviolability of the home, and freedom of communication. Therefore, evidence obtained by interfering with or violating these rights is generally not accepted as admissible evidence in courts.

The ability to prove the fault of the defendant spouse may sometimes encourage interventions in or attempts to obtain evidence of the private lives of spouses. However, this does not eliminate the obligation to obtain evidence in accordance with the law.

While the decisions of the Court of Cassation regarding the use of unlawfully obtained evidence in divorce cases generally exhibit consistency, there are instances where contrary decisions have been made:

“(…) If a spouse records the non-confidential conversations of the other spouse to determine acts contrary to the obligation of fidelity in this way, there is no violation of the privacy of private life, and it is not correct to accept that the information obtained through this method is unlawful. However, if a spouse unlawfully accepts friends for illegitimate reasons in a space commonly used for family integrity, it can be stated that the privacy of family life is violated. Therefore, it cannot be said that there was unlawfulness during the acquisition of such evidence (Court of Cassation 2nd Civil Chamber, 20.10.2008, E. 2007/17220, K. 2008/13614).

Similarly, the Court of Cassation has stated in a different case that evidence obtained through tracking software installed on a smartphone given by a man to his spouse should not be considered unlawfully obtained in the case. However, in a different decision, it was stated that voice recordings obtained by a man through unauthorized installation of tracking software on his spouse’s phone should be considered as unlawfully obtained evidence.

Furthermore, in another decision, the Court of Cassation is of the opinion that photographs, videos, images, and sound recordings found on digital platforms can be considered in court decisions when supported by other evidence.

“… although the voice recordings obtained by the plaintiff and the defendant man by installing tracking software on the spouse’s phone are considered as unlawfully obtained evidence; it was concluded that the act of adultery was proven by bringing together the testimonies of witnesses, phone records, and photographs…” (Court of Cassation 2nd Civil Chamber, 01.06.2017, E. 2015/26918, K. 2017/6688).

However, such evidence should not be obtained through deception or misleading methods. For instance, information recorded by a woman through social media while her spouse communicates under a different identity was not considered as evidence in a divorce case.

Photographs or images published by a spouse on social media, or shared with people they met on social media, can be considered as evidence in a divorce case if they are publicly available or shared with others. It does not matter whether the spouse accessed this kind of publicly shared information through another means or person.

Likewise, if a third party presents messages and photos exchanged between the adulterous spouse and another person to the deceived spouse, these pieces of evidence can be used in a divorce case without being considered unlawfully obtained. However, sound or visual recordings obtained through devices planted by a third party without the knowledge of one of the spouses are considered unlawfully obtained evidence.

If a witness obtains information by violating the freedom of communication, private life, or inviolability of the home of a spouse, the statements made based on this information are unlawful. For example, if a witness secretly observes between spouses to gain knowledge about adultery, such a statement is not legally valid and cannot be accepted as evidence. Additionally, access to information such as a spouse’s phone, computer, messages, conversations, emails, and correspondence should be a natural consequence of shared life. If a spouse can access their phone, email, or social media accounts without making a special effort and has information about unfaithful behavior, they can present this information as evidence.

The Limits of Evidence Evaluation in Divorce Cases and the Authority of the Judge

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