1. Legal Basis and Reasons for Divorce 

In divorce cases filed against the cheating spouse, two different legal reasons are based on:

Adultery (TMK art. 161): It is a special and absolute reason for divorce. In the event that the phenomenon of adultery is proven, the court does not have discretion to not make a divorce decision (AYM 2024/83 K). It has been claimed that the rule of “the right to a lawsuit will be lost after five years has passed since the act of adultery will be lost” in Article 161 of the Turkish Civil Code is unconstitutional, but the court that it is in accordance with the Constitution has ruled. In the decision, the limitation of the right to file a divorce case due to adultery aims to prevent the defective spouse from being under the threat of an indefinite lawsuit; In addition, it is emphasized that even if this period has elapsed, the spouse can file a lawsuit based on other reasons such as the shaking of the marriage union (TMK article 166). For this reason, it has been concluded that the regulation does not violate the right to protect private life and the right to effective application.

Shaking from the foundation of the marriage union (TMK m. 166/1): The act of adultery cannot be fully proven, but “Trustworthy Behavior” In cases where it is in size, the general reason for divorce can be based on.

Graded Demand: The plaintiff may file a gradual lawsuit based on the legal reasons for the shaking of the marriage union (General Reason) if this is not accepted first of all adultery (Special Reason), if this is not accepted (Superior’s Office 2. HD 2016/20829) K,#ATFP_CLOSE_TRANSLATE_SPAN# 2016/24019  In the case subject to the decision of the 2nd Civil Chamber of the Supreme Court of Appeals numbered 2016/20829 E., 2018/8244 K.; The plaintiff woman requested divorce on the grounds of both adultery (TMK m.161) and the shaking of the marriage union (TMK article 166/1).He rejected the month-based request and ruled for divorce only based on the general reason for divorce. However, with the evidences within the scope of the file, the Court of Cassation stated that the act of non-faithfulness of the defendant man was fixed and that the conditions of adultery were met, and emphasized that the plaintiff’s request for divorce based on the reason for adultery should also be accepted.; Therefore, the local court overturned its decision.

2. Elements of Proof and Cases to be Reliable 

According to the decisions of the Court of Cassation, the following concrete facts should be based on the proof of the allegation of cheating (adultery):

cohabitation and social environments: Living in the same house with another person, introducing this person as his “wife” in social environments or going on vacation together is considered sufficient to prove adultery (HD 2. HD 2016/23892 K,#ATFP_CLOSE_TRANSLATE_SPAN# 2016/2143 K). The parties mutually filed for divorce based on the reasons for adultery (TMK art.161), bad behavior (TMK art. rejected for adultery requests. However, according to the evidence and witness statements in the file, the Supreme Court of Appeals He stated that it is fixed that he took a vacation with the woman and introduced her as his wife in the social environment, and that this situation should be considered within the scope of adultery.. For this reason, the woman’s rejection of the divorce case based on adultery should be accepted, but she found that the rejection of the woman was unlawful and overturned the provision.

Digital evidence: Inappropriate photos, sincere messages, WhatsApp correspondences and video recordings sent through social media are the main evidence for the infidelity (HD 2. HD 2024/1972) K,#ATFP_CLOSE_TRANSLATE_SPAN# HGK 2022/119&Nbsp;The 2nd Civil Chamber of the Supreme Court 2024/1972 E., 2024/2297 k. In the case subject to the decision numbered; The parties mutually requested divorce on the basis of the reasons for adultery (TMK art. However, the Supreme Court submitted to the file Social media correspondence and images constitute strong evidence for adultery. He decided to overturn the man’s case based on adultery should be accepted. In the trial held in accordance with the annulment, the case of both parties was accepted, the parties were considered to be equally at fault and a divorce was decided. The Court of Cassation stated that in the last examination, the local court made a judgment in accordance with the reversal decision. confirmed.

Physical and biological evidence: The fact that the cheated spouse “having a realm” with other people even during pregnancy, the fact that he is treated for in vitro fertilization with another woman, or that a child out of marriage (proving with a birth certificate) constitutes conclusive evidence (HD 2. HD 2023/5284  2024/1280 K,#ATFP_CLOSE_TRANSLATE_SPAN# 2015/21125 K).

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Witness statements: Instead of the abstract statements of the witnesses; The etiquette statements of the parties about the fact that the parties live in the same household with another person or the statements confirming sexual intercourse should be taken as basis (HD 2. HD 2024/3729 squeaky,#ATFP_CLOSE_TRANSLATE_SPAN# 2014/4126 

Confidence disgusting behavior: Even if adultery cannot be fully proven, sincere messaging with other women or the spouse’s confessions that “I made a mistake, I’m sorry” are accepted as “confidence behaviours” and form a basis for the general reason for divorce (HGK 2022/119 K,#ATFP_CLOSE_TRANSLATE_SPAN# Supreme Court 2. HD 2014/18778 K).

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3. Procedural rules and disqualification periods

DURATION: The right to file a lawsuit for adultery 6 months And in any case, through the action 5 years falls by passing. In ongoing actions, the deadline starts from the last action date (AYM 2024/83 K

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Forgiveness barrier: The party that forgives the act of deception or at least tolerates it by tolerating it has no right to sue (TMK art. 161/3, Supreme Court 2. HD 2016/15596 K).

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Obligation to specify in the petition: The case of disloyalty should be duly put forward in the petition. A case that is not based on the petition cannot be loaded as a fault even if it is put forward during the investigation phase (Court. In the case subject to the decision numbered 2016/14632 K., the plaintiff woman claimed that the man was at fault based on the allegations of infidelity that emerged during the trial, but the Supreme Court, The facts that are not put forward in the lawsuit petition and that take place after the lawsuit is filed cannot be taken as a basis for the judgment. emphasized. For this reason, it has been stated that the subsequent claim of infidelity cannot be considered as a fault, and that the existing evidence is not sufficient for divorce. In addition, the local court decision was overturned by stating that compensation could not be awarded without proof of fault and that the claims that it would receive jewelery could not be proven.

Duration of Loyalty Obligation: Loyalty obligation continues until the divorce provision is finalized. Acts of infidelity that take place after the lawsuit is filed directly affects the determination of faults in the current case, the amounts of compensation and alimony (Hardboard 2. HD 2012/6186 K,#ATFP_CLOSE_TRANSLATE_SPAN# 2013/24182 KIn the case subject to the decision of the 2nd Civil Chamber, numbered 2012/6186 E., 2012/25751 K.; While the divorce case was going on, it was claimed that the plaintiff woman had a religious marriage with another person, and this situation was supported by the investigation documents. Supreme Court, that the loyalty obligation continues until the divorce provision is finalized. emphasizing that the infidelity actions that took place after the lawsuit was filed should also be taken into account in the evaluation of the fault. For this reason, the court’s decision without investigating this new case, evaluating it as an incomplete examination, overturned the provision for the determination of faults and the re-evaluation of the alimony and compensation claims.

4. Economic and Social Results 

The cheating spouse is considered “fullly defective” or “severely defective” in the events that cause the divorce. The consequences of this situation are:

Compensation: The defective spouse is obliged to pay material and moral compensation for the benefit of the other party (HGK 2022/119 

alimony: Poverty alimony cannot be judged in favor of the cheating spouse who is severely flawed.

Custody: The phenomenon of adultery and the lifestyle of the spouse are taken into account in the custody evaluation in line with the interests of the common child (HD 2009/7300 

5. Secondary sources and additional context

 In the decisions that are secondary sources, the following points are emphasized:

It has been stated that the cheating spouse tends to reject the Supreme Court in cases of non-pecuniary damages filed against the third person who has a relationship with his wife, but that the violation of the obligation of loyalty is the main reason for the compensation in the divorce case between the spouses (Supreme Court 4. HD. 2012/9927 In the event subject to the decision of the 4th Civil Chamber of the Supreme Court No. However, the decision of the local court that rejected the case was approved by the Supreme Court. approved. In the decision, it was stated that there was no inaccuracy in the evaluation of the evidence and the judgment was found appropriate. However, in the letter of opposing vote added to the decision, it was argued that the cheated spouse due to the violation of the obligation of loyalty can independently demand non-pecuniary damages not only to his wife but also to the third party; It has been argued that the action of the third party also constitutes a separate tort and should cause responsibility.

It is stated that the burden of proof in the claim of adultery is in the plaintiff, if the evidence such as hotel records or HTS records is not duly presented or if the witnesses are not prepared, the case may be rejected, but in this case, the general divorce case can be continued through “confidence-shattering behavior” (Supreme Court 2. HD 2023/1970 K#atfp_close_translate_span# 2023/10121 

It is controversial that the evidence obtained through unlawful means (e.g. secretly uploaded audio recording programs) is based on the verdict, and the legality and proof power of the evidence is meticulously examined by the court (Hardboard 2. HD 2023/2497).

Frequently Asked Questions

Why is expert lawyer support needed?

Divorce cases filed due to cheating; burden of proof, , DISCLAIMER PERIODS, , forgiveness concept, , Risk of illegal evidence and gradual litigation strategy It contains highly technical elements such as A case of infidelity that is not put forward in the petition may not be considered as a fault even if it occurs during the trial. In addition, even the new deception acts that took place after the lawsuit was filed. Compensation, alimony and defect rates can directly affect.

For this reason, from the beginning of the process, the correct legal cause, the proper collection of the evidence and the establishment of a litigation strategy in accordance with the Supreme Court-AYM case-laws. Requires expertise.

On the Anatolian Side of Istanbul; Tuzla, Kartal, Pendik and Maltepe in cases of divorce, compensation, alimony and custody due to cheating (adultery), especially 2M LAW LAWYER OFFICEbased on current Supreme Court and Constitutional Court decisions Effective consultancy and litigation provides service.

A divorce process carried out with the right steps, Prevents loss of rights and radically changes the course of the case.