Material and Moral Compensation in Divorce under Turkish Law

COMPENSATION FOR MATERIAL AND MORAL DAMAGES IN DIVORCE CASES IN TURKEY

Divorce can occur as a contested divorce or an uncontested divorce. Divorce has financial as well as legal consequences. The claim for compensation for material and moral damages is regulated in our law as one of the financial consequences of divorce. Material compensation and moral compensation in divorce have different conditions and require certain elements to be met in order to be claimed. For a claim for material and moral compensation to arise, a decision to divorce must first be made and this decision must become final. The basis of compensation is the principle of fault. According to the principle of fault, which is one of the conditions for claiming compensation and is important in determining the amount of compensation, compensation can only be claimed from the faulty party. If they wish, the parties can arrange the financial consequences of the divorce among themselves. For example, they can include arrangements for material and moral compensation in uncontested divorce protocols.

WHAT IS MATERIAL COMPENSATION IN DIVORCE CASES?

Material compensation is regulated as the amount awarded by the judge to cover the financial difficulties and losses that the innocent or less faulty party has to endure due to the unjust divorce. The aim of this compensation is to cover the financial losses suffered due to the events that led to the divorce. In this context, the innocent or less faulty party whose existing or expected benefits are damaged due to the divorce may claim compensation for these damages. The claim for material compensation in divorce is subject to both material and formal conditions. In terms of formal conditions, the decision to divorce must first be finalized.

WHAT ARE THE CONDITIONS FOR CLAIMING MATERIAL COMPENSATION IN DIVORCE?

• The party claiming material compensation must be innocent or less at fault compared to the other party.

It is not necessary to be completely faultless. Being less at fault compared to the other party is sufficient to make a claim for material compensation. If the parties are equally at fault, it is not legally possible for them to claim material compensation from each other.

• The party from whom compensation is claimed must be at fault.

It is not enough that the person claiming compensation is innocent or less at fault compared to the other party. Since the claim for compensation is based on fault, the party from whom you are claiming compensation must be at fault. It is not possible to claim material compensation from a person who is not at fault. However, if the parties have agreed on the financial consequences of the divorce in the case of an uncontested divorce, the principle of fault will no longer be considered. Sometimes, the parties may agree that compensation will be paid even if there is no fault.

• The party claiming compensation must have suffered a loss.

In terms of material compensation, loss refers to the difference between the current situation of the person’s assets and the hypothetical situation of the assets if the actions causing the loss had not occurred. As a rule, the loss must be involuntary. The impairment of the person’s existing or expected benefits is a legal requirement for material compensation.

Existing benefits refer to the rights and advantages provided to the parties by the marriage. Since it will not be possible to benefit from these rights once the marriage is over, material compensation can be claimed. For example, the parties often live together during the marriage. During this period, the parties provide financial support to each other economically. In cases where the marriage ends, the innocent or less faulty party may claim material compensation from the faulty party on the grounds that they will be deprived of this financial contribution. Utilizing the other spouse’s health services and social rights is also considered in this context.

In terms of expected benefits, these are benefits that are not yet present but are highly likely to occur if the marriage continued. Examples include being deprived of a widow’s pension, separation from a family business, and missed opportunities. The fact that the divorced spouse will lose the status of heir is also a debated issue among expected benefits.

• There must be a causal link between the damage and the events leading to the divorce.

No material compensation will be awarded unless the person’s existing or expected benefits are damaged due to the events that caused the end of the marriage. The person claiming compensation may have suffered direct or indirect damage for many reasons, but if the cause of this damage is not related to the divorce, compensation cannot be claimed.

• Material compensation must be claimed by the parties.

Whether you claim material compensation together with the divorce case or with a counter-petition, the judge will not rule on compensation ex officio. At the same time, there is no legal obstacle to making a claim for material compensation orally during the hearing. You must be very careful about the amount of compensation you claim. As a rule, the judge cannot award more than you claim. In this context, to avoid losing rights, you must determine your claim correctly.

HOW IS THE DAMAGE CALCULATED IN A MATERIAL COMPENSATION CASE?

Damage arising from the impairment of existing or expected benefits constitutes the subject of the material compensation case. As a rule, the damage is assessed by the judge. The judge may also seek the assistance of an expert if deemed necessary. The damage assessed by the judge must be proportional and appropriate to the purpose. It should be noted that the amount of compensation awarded is limited to the determined damage. In other words, the judge cannot award more compensation than the damage. If the damage cannot be precisely calculated mathematically, the judge determines the amount of compensation in accordance with equity. The plaintiff is responsible for proving the damages that can be proven, while the judge has the discretion to determine the damages that cannot be proven.

HOW IS THE AMOUNT OF MATERIAL COMPENSATION DETERMINED IN DIVORCE?

After determining the damage, the judge determines the amount of compensation. In addition, the judge considers the reasons for the reduction of compensation and deducts these from the existing amount. The judge determines the amount of compensation in accordance with equity. For example, in cases where the person claiming compensation is very wealthy and the person from whom compensation is claimed has a very low income, the judge awards an amount of compensation in accordance with equity.

The criteria considered in practice when determining compensation are numerous, and some of them are listed below as examples.

• Damaged benefits
• Degrees of fault of the parties
• Duration of the marriage
• Economic and social status of the parties
• Educational level of the parties
• Professions of the parties
• Whether the awarded compensation is affordable
• Physical and mental health of the parties

WHEN CAN MATERIAL COMPENSATION BE CLAIMED?

There are time limits for claiming material compensation. However, these periods vary depending on how the material compensation is claimed.

• While the divorce case is ongoing, claims for material compensation can be freely made at any stage until the divorce decision becomes final. In other words, if your divorce case is ongoing, you can make a claim for material compensation at any stage before a decision is made.
• If the divorce decision is final, you must file your material compensation case within 1 year. This period is the statute of limitations.

HOW IS MATERIAL COMPENSATION PAID?

The awarded compensation can be paid in kind or in cash. Compensation in kind means restoring the damage to its original state, while cash compensation means compensating the damage with money. In practice, cash compensation is often used for material compensation. The judge decides on this matter. The scope and method of payment of compensation are determined according to the severity of the fault and the characteristics of the case. If cash compensation is awarded, payment can be made in a lump sum or in installments. If a lump sum payment is decided, the compensation is paid once and ends. If it is to be paid in installments, payments are made at regular intervals. In practice, it is usually paid monthly. If they wish, the parties can agree on this matter among themselves.

HOW IS MATERIAL COMPENSATION TERMINATED?

If it is decided that the material compensation will be paid in a lump sum, the compensation will be paid and finished, and the issue of terminating the compensation will not arise. If it is decided that the compensation will be paid in installments, material compensation may be terminated in some cases. Material compensation can be terminated either automatically without a court decision or by a court decision.

As a rule, material compensation paid in installments is automatically terminated in the following cases;

1. The creditor of the compensation remarries
2. One of the parties dies

In some cases, even if it is not automatically terminated, you may request the termination of material compensation by applying to the court. In the presence

of the following situations, you need to apply to the court to request the termination of compensation. These situations are;

1. The creditor lives with someone else without getting married
2. The creditor leads a dishonorable life

CHANGING THE AMOUNT OF MATERIAL COMPENSATION

It is not possible to change the amount of material compensation that has been paid in a lump sum. However, it is possible for the judge to change the amount of compensation that is not paid in a lump sum, i.e., in installments. In practice, there are usually requests to increase the amount of compensation later.

As a rule, if the financial situation of the parties changes or if the circumstances required by equity exist, the annuity can be increased or decreased. If the parties wish, they can also decide on the amount of material compensation to be paid in the coming years.

FREQUENTLY ASKED QUESTIONS ABOUT MATERIAL COMPENSATION CLAIMS

• Can material compensation be claimed from a spouse with a mental illness?

No, since people with mental illness do not act deliberately, it cannot be said that their actions are faulty. Since fault is a condition for claiming compensation, it is not possible to claim compensation from people with mental illness.

• Can a material compensation case be filed after an uncontested divorce case?

No, as a rule, in an uncontested divorce case, the parties agree on the financial consequences of the divorce. If the parties agree that no material compensation will be awarded, one of the parties cannot claim this later.

• Which court is competent and authorized for a material compensation case?

You can claim material compensation while your divorce case is ongoing. However, if you raise your compensation claim after the divorce case, the competent and authorized court is the family court of the place where the defendant resides according to the general jurisdiction rule.

• Is a fee required for a material compensation case?

If you claim compensation together with the divorce case, you do not need to pay an additional fee other than the fee you paid for the divorce case. However, if you file a material compensation case independently within 1 year after the divorce case, it is subject to a fee.

NON-PECUNIARY DAMAGES IN DIVORCE CASES

One of the financial consequences of divorce is non-pecuniary damages. As a rule, non-pecuniary damages aim to compensate for non-pecuniary harm. Non-pecuniary harm is the physical and emotional pain, sorrow, and distress a person suffers due to unlawful behavior. Non-pecuniary harm does not cover property losses, i.e., financial, monetary losses. Therefore, non-pecuniary damages aim to compensate for the existing harm, but it cannot be completely eliminated. A certain amount of money is awarded to alleviate the person’s distress.

WHAT ARE THE CONDITIONS FOR NON-PECUNIARY DAMAGES?

• The plaintiff’s personal rights must be violated.

The legislator has regulated that the violation of the personal rights of the person seeking non-pecuniary damages due to the events leading to the divorce is a legal requirement for this compensation case. As a rule, the personal rights of the plaintiff, i.e., the party filing the non-pecuniary damages case, must have been wrongfully attacked. There is no need for severe violation. As a rule, it is sufficient that it is violated. Severity will be considered in the amount of compensation.

Personal rights are the values that a person has because they are themselves. These rights are inalienable, non-transferable, non-seizable, and do not pass to others by inheritance. These rights are absolute rights guaranteed and protected by our Constitution.

The main personal rights are;

• Person’s honor and dignity
• Person’s commercial reputation
• Person’s private life
• Person’s family life
• Person’s bodily integrity
• Person’s sexual freedom
• Person’s economic freedom

 

• The violation of personal rights must be severe enough to justify non-pecuniary damages.

As a rule, the violation must be of a certain intensity. The criterion for this is that the existing pain and suffering have reached a degree that justifies non-pecuniary damages.

• The spouse from whom compensation is claimed must be at fault.

Compensation is based on fault. A person who is not at fault is not obligated to compensate for the existing harm. In this context, the fault of the defendant is one of the most important legal requirements for non-pecuniary damages. If the defendant did not cause the divorce with their fault, they cannot be held liable for compensating the resulting harm.

• The spouse claiming compensation must be innocent or less at fault.

The term “innocent” does not mean absolute innocence. Being faultless is often contrary to the general flow of life. However, you must be less at fault compared to the party you are claiming compensation from. Situations that would not alone cause a divorce can be considered less fault. Even if these actions did not occur, the other spouse should still decide to divorce.

• There must be a causal link between the moral harm and the divorce.

As a rule, the actions that violate a person’s personal rights must be related to the divorce. For example, actions such as beating the spouse, insulting, and infidelity are actions that cause the divorce and also cause grief, establishing the causal link.

• There must be an element of unlawfulness.

Divorce alone is not sufficient for a claim for non-pecuniary damages. In some cases, although the marriage union is fundamentally shaken, there may not be any situation that violates personal rights in the concrete case. The parties may divorce due to disagreements. In this case, the parties will not have the right to claim non-pecuniary damages. There must be an element of unlawfulness for non-pecuniary damages. Actions such as physical violence, infidelity, and humiliating the other spouse constitute unlawfulness.

• There must be a divorce decision.

As a rule, it does not matter whether you are married or divorced according to the general provisions to file a non-pecuniary damages case. However, if you have a claim for non-pecuniary damages arising from a divorce case, there must be a decision to divorce.

• The person claiming non-pecuniary damages must request this from the court.

The judge can take interim measures if necessary, even if there is no request. However, the claim for compensation is not included in these measures. Therefore, for the judge to rule on non-pecuniary damages, the person seeking non-pecuniary damages must have a request in this regard.

HOW TO CLAIM NON-PECUNIARY DAMAGES IN DIVORCE?

You can raise your claim for non-pecuniary damages together with your divorce case without paying an additional fee. You can also verbally state this to the judge. You can also make a claim with a counter-petition.

POINTS TO CONSIDER IN THE PETITION FOR NON-PECUNIARY DAMAGES

1. The amount and type of compensation must be specified.

Since the judge cannot award more than you claim, it is important to determine this amount correctly. You should also specify the type of your compensation. For example, you should clearly state whether you are seeking material or non-pecuniary damages.

1. Non-pecuniary damages must be claimed within the time limit.

Since the right to sue arising from the termination of the marriage due to divorce will be barred by the statute of limitations if 1 year passes from the finalization of the divorce decision, you should pay attention to this time element if you are filing a non-pecuniary damages case separately from your divorce case. You have the right to claim non-pecuniary damages until the decision becomes final while your divorce case is ongoing.

HOW IS THE AMOUNT OF NON-PECUNIARY DAMAGES DETERMINED IN DIVORCE?

As a rule, the amount of non-pecuniary damages is determined by the judge according to the severity of the events that led to the divorce. The severity of the events, the degree of harm, and the fault ratios will be investigated. The judge must award an amount of compensation proportional to the act that violated the personal right.

HOW ARE NON-PECUNIARY DAMAGES PAID?

As a rule,

non-pecuniary damages consist of a certain amount of money. This money cannot be paid in foreign currency. It must be decided in the national currency. The exception to this is if the parties have agreed on foreign currency in uncontested divorce cases. Unlike material compensation, non-pecuniary damages can only be paid in a lump sum. In this context, it cannot be paid in installments. Once the compensation is paid, claims for changing, increasing, or decreasing the compensation amount cannot be raised again.

CAN NON-PECUNIARY DAMAGES BE CLAIMED FROM THIRD PARTIES DUE TO DIVORCE?

This issue is debated in the doctrine. In particular, in divorce cases filed due to adultery, the cheated spouse wants to claim non-pecuniary damages from the third party with whom they were cheated. While some authors argue that it can be considered according to the good faith of the third party and if they knowingly continue this relationship despite knowing the other party is married, a claim for non-pecuniary damages can be made from third parties, the prevalent view in practice is that non-pecuniary damages cannot be claimed from third parties due to divorce. It should be noted that even if a claim for non-pecuniary damages due to divorce is not made, the right to file a non-pecuniary damages case based on general provisions is reserved.

FREQUENTLY ASKED QUESTIONS ABOUT NON-PECUNIARY DAMAGES IN DIVORCE CASES

• If both parties are at fault, can non-pecuniary damages be claimed?

No, as a rule, the spouse from whom non-pecuniary damages are claimed must be less at fault or faultless compared to the other spouse, and non-pecuniary damages cannot be awarded in cases where the spouses are equally at fault.

• Are pre-marital events considered in terms of fault?

No, events after marriage are considered in determining fault.

• Can I file a non-pecuniary damages case against my ex-spouse who violated my personal rights after the divorce?

Non-pecuniary damages claims due to divorce do not consider events that occurred before or after the divorce.

• Can I claim non-pecuniary damages on behalf of my daughter?

Since personal rights, which are the subject of non-pecuniary damages, are strictly personal rights, this case must be filed by the person whose rights have been violated.

• Can interest be claimed for non-pecuniary damages?

To award interest for non-pecuniary damages, it must first be requested. Thus, legal interest can be applied. For more detailed information, you can contact divorce law attorneys.

• Which court is competent and authorized for non-pecuniary damages in divorce?

If you raise your claim for non-pecuniary damages together with your divorce case, the competent and authorized court is the family court of the place where one of the spouses resides or where they lived together for the last 6 months before the divorce case was filed. However, if you file a non-pecuniary damages claim independently of your divorce case, the competent and authorized court is the family court of the place where the defendant resides according to the general jurisdiction rule.

• Are non-pecuniary damages claimed separately from material damages?

The conditions for material and non-pecuniary damages are different. However, if the conditions for both are present, you can claim both material and non-pecuniary damages together or pursue them in separate cases.

 

EXCERPTS FROM DECISIONS

• “… the case relates to the claim for compensation for material and non-pecuniary damages caused by the defendant attorney’s failure to file for divorce and claim compensation, alimony, jewelry, and other items on behalf of the plaintiff despite being dismissed as the attorney. The court ruled that the plaintiff learned of the damage on 28.11.2012 when they filed a complaint with the Public Prosecutor’s Office about the defendant attorney, and since the case was filed after the one-year statute of limitations according to Article 40 of the Attorneyship Law, the case was dismissed …” (Civil Chamber 2020/12208 E. , 2021/11891 K.)
• “From the collected evidence, it is understood that the defendant husband physically abused his wife, insulted her, and kicked her out of the house, while the plaintiff wife spent long hours on the internet neglecting her marital duties, and the defendant husband was found to be heavily at fault in the events leading to the divorce. Therefore, the plaintiff wife was not equally at fault. The conditions of Article 174/1-2 of the Turkish Civil Code were met in favor of the plaintiff wife. Therefore, the court should have awarded appropriate amounts of material and non-pecuniary compensation (Article 174/1-2 of the Turkish Civil Code) in favor of the plaintiff wife instead of dismissing the claim due to incorrect fault determination.” (General Assembly of Civil Chambers 2017/2718 E. , 2021/714 K.)
• “According to Article 174 of the Turkish Civil Code, material and non-pecuniary damages due to divorce can be awarded if the marriage ends in divorce. Since the marriage did not end in divorce but with the plaintiff’s death on 04.06.2010, it is against the law and procedure to award material and non-pecuniary damages in favor of the deceased plaintiff’s heirs, the mother and father, according to Article 174/1-2 of the Turkish Civil Code.” (Civil Chamber 2011/16598 E., 2011/15889 K.)
• “In the events that caused the fundamental breakdown of the marriage, the plaintiff wife, who did not take care of her husband’s illness, is equally at fault. Non-pecuniary damages cannot be awarded in favor of an equally at-fault spouse. The conditions of Article 174 of the Turkish Civil Code were not met. Therefore, the court should have dismissed the plaintiff wife’s claims for compensation instead of accepting them as written.” (General Assembly of Civil Chambers 2010/2 E., 2010/329 K.)

EXCERPTS FROM DECISIONS

• The parties are equally at fault. Non-pecuniary damages cannot be awarded in favor of an equally at-fault spouse in the events that caused the divorce. The conditions of Article 174/2 of the Turkish Civil Code were not met in favor of the husband. Therefore, the court should have dismissed the plaintiff husband’s claim for non-pecuniary damages instead of awarding non-pecuniary damages in favor of the husband due to incorrect fault determination…” (Civil Chamber 2021/6790 E. , 2021/8390 K.)
• Considering the economic and social conditions of the parties, the degree of fault in the events leading to the divorce, the purchasing power of the money, the attack on personal rights, and the violated existing and expected benefits, the non-pecuniary compensation awarded in favor of the defendant-plaintiff woman is insufficient. According to the principle of equity in Article 4 of the Turkish Civil Code and the provisions of Articles 50 and 51 of the Turkish Code of Obligations, more appropriate non-pecuniary compensation (Article 174/2 of the Turkish Civil Code) should be awarded.” (Civil Chamber 2021/6614 E. , 2021/8235 K.)
• Considering the economic and social conditions of the parties, the purchasing power of the money, personal rights, especially the severity of the attack on family integrity, and the fact that the plaintiff woman was not heavily or equally at fault in the events leading to the divorce, the non-pecuniary compensation awarded in favor of the plaintiff woman is insufficient. According to the principle of equity in Article 4 of the Turkish Civil Code and the provisions of Articles 50 and 51 of the Turkish Code of Obligations, more appropriate non-pecuniary compensation (Article 174/2 of the Turkish Civil Code) should be awarded.” (2nd Civil Chamber 2021/6471 E. , 2021/8232 K.)

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