Where one of the spouses knowingly and willingly has sexual intercourse with a third party while the marriage subsists, the conduct is characterised as adultery. The Turkish Civil Code No. 4721 counts this act among the absolute grounds for divorce; accordingly, once adultery is established there is no further need to prove that the marital union has become intolerable. In files in which the allegation of adultery is upheld, the court treats the spouse who breached the duty of fidelity as being at graver fault and shapes the claims for damages and the remaining claims by reference to that allocation of fault.
In practice the terms "infidelity" and "adultery" are often used interchangeably, yet their scope does not coincide. Infidelity is a broad heading of disloyalty that also encompasses emotional attachments. Adultery, by contrast, is a narrow and technical concept covering only extramarital sexual intercourse. That distinction matters because it directly determines which legal ground an action is to be founded upon.
In this briefing note we examine the conditions required for a divorce action based on adultery, the preclusive period to which it is subject, and the criteria the courts apply as regards proof; we also address the consequences the ground produces in the fields of damages, custody, alimony and the matrimonial property regime.
Legal Nature of Divorce on the Ground of Adultery
Fidelity is one of the fundamental obligations of the marital union. Where one spouse breaches that obligation through sexual intercourse entered into voluntarily with a third party, this constitutes a grave form of breach that the legislature has regulated separately.
In Turkish law the grounds for divorce are divided into general and special grounds; adultery falls within the group of special and absolute grounds. The practical consequence of its being an absolute ground is this: once the judge is satisfied that the act took place, he or she does not separately investigate whether the marital union has become unsustainable for the parties and may order the divorce directly. In this respect adultery is a ground of action that affords the claimant a marked advantage in terms of proof.
Conditions Required for the Action to Succeed
In an action brought on the basis of Article 161 of the Turkish Civil Code No. 4721, the court may order a divorce only where the four conditions examined below are met cumulatively.
The Act Must Have Been Committed During the Marriage
For adultery to arise, the parties must be married by official ceremony and the marital union must be legally subsisting at the time of the act. Relationships during a period of engagement or betrothal are therefore not treated as adultery, even if they come to light after the marriage, and do not permit an action to be brought on that ground.
The duty of fidelity, by contrast, continues to exist for as long as a divorce action is pending. If one of the spouses has sexual intercourse with another person while the proceedings are under way, the act is characterised as adultery. What occurs in the period after the marriage has been brought to an end by court judgment can no longer be assessed within this scope.
Sexual Intercourse with a Third Party
The constituent element of adultery is physical union, not an emotional inclination. For the act to arise, the married spouse must knowingly and willingly enter into sexual intercourse with a third party.
By virtue of that criterion, a spouse developing an emotional bond with a person of the opposite sex, forming an attachment at the level of flirtation, or exchanging messages does not of itself constitute adultery. Physical contact falling short of sexual union, such as kissing, embracing or caressing, likewise remains outside this concept. Such conduct is not, however, without legal consequence; it may be brought before the court by way of the general ground that the marital union has broken down irretrievably.
Since adultery is an act committed in secrecy, conclusive evidence is often not to be had. The Court of Cassation, mindful of that reality, does not require full proof and regards indicia capable of forming the judge’s inner conviction as sufficient.
The Six-Month Period from Discovery Must Not Have Expired
Article 161 of the Turkish Civil Code No. 4721 makes the right of action subject to a time limit. The spouse who learns of the infidelity must bring the action within 6 months of the date of discovery; if no step is taken within that period, the right of action lapses.
The position is different where the infidelity does not consist of a single incident but is repeated by the same spouse on a continuing basis. Since each new act constitutes an independent instance of adultery, the six-month preclusive period likewise begins to run afresh.
Allowing a substantial part of the period to pass without acting carries a further risk: the court may take the view that a spouse who, although aware of the act, did not bring an action for a long time tacitly accepted the situation or forgave the other spouse.
Absence of Forgiveness
The exercise of the right of action depends on the wronged spouse not having forgiven the other spouse, whether expressly or by implication. The attitude of a spouse who, having learned of the infidelity, chooses to continue the marriage and displays no reaction to the situation is construed as forgiveness; that construction extinguishes the right of action based on adultery.
The intention to forgive may be manifested in words, in writing or through conduct. The following are examples of conduct that may in practice be regarded as indicating forgiveness:
- Continuing the shared life without interruption after learning of the infidelity
- Making an express declaration that the other spouse is forgiven
- Going on holiday with the spouse after the incident, or celebrating special occasions together
- Maintaining the ordinary course of married life
Conduct of this kind is read by the court as showing that the wronged spouse has accepted the act and has declared an intention to continue the union. Once the intention to forgive has been manifested, no action may be brought on the basis of the same incident. If, on the other hand, a fresh act of infidelity occurs after the forgiveness, it is treated as an independent instance of adultery and the right of action arises anew.
Rules of Proof and Available Evidence
The fact that adultery is committed in secret makes it difficult to prove. Nevertheless, any evidence obtained by lawful means may be submitted to the court. The case law of the Court of Cassation likewise does not impose a requirement of conclusive evidence and treats indicia capable of forming the judge’s inner conviction as sufficient.
The principal means of proof resorted to in practice are as follows:
- Witness testimony: Statements by persons who witnessed the incident directly or indirectly carry evidential value; such statements are, however, expected to be of a quality and consistency capable of persuading the court.
- Electronic correspondence and communication records: Messages, e-mails and telephone records may be submitted to the file and may be decisive as regards proof, provided that they were obtained without infringing the privacy of private life.
- Accommodation records and security camera footage: Records showing that the spouse stayed at a hotel together with a third party are among the strongest indicia and may form the basis for a decision upholding the claim.
- Social media content: The posting of intimate images with a third party, the sharing of romantic content, or an open acknowledgement of the existence of a relationship may also be advanced as evidence.
Indicia Accepted in Court of Cassation Practice
The Court of Cassation has laid down certain principles in its decisions as to how the fact of infidelity is to be proved and by what criteria the evidence submitted is to be weighed. Within the framework of those principles, certain facts constitute a presumption that adultery has occurred:
- Where a child is born of an extramarital relationship, the fact of adultery is regarded as conclusively proved.
- Where one of the spouses, while alone, admits a person of the opposite sex into the matrimonial home, this points to the existence of adultery and the act is regarded as proved.
- A spouse staying in the same hotel room with a person of the opposite sex constitutes a strong indication that adultery has taken place.
Judicial Discretion in Assessing the Evidence
In an action founded on adultery, the Family Court has the power to assess the evidence submitted to the file freely and is not bound by conclusive evidence. That the act is by its very nature committed in secrecy is the reason why, in the case law, indicia forming the inner conviction are treated as sufficient.
That freedom also has its limits. As regards the truth of the facts relied upon in support of the allegation of infidelity, the judge may not offer the oath to the parties. Once the evidence has been gathered, it is for the judge to make the final assessment as to whether the act took place and to frame the judgment accordingly.
In the result, although there is no requirement of conclusive evidence, indicia strong enough to bring the court to an inner conviction must be placed on the file.
Claims for Damages
The treatment of adultery as an absolute ground for divorce has the consequence that the spouse who committed the act is regarded as being at graver fault. That allocation of fault affords the claimant spouse the opportunity to seek pecuniary and non-pecuniary damages.
Pecuniary Damages
The function of pecuniary damages is to make good the loss of the spouse who suffers economic detriment by reason of the divorce. In actions founded on adultery, the framework of this claim coincides to a large extent with the regime of pecuniary damages in other divorce actions.
In determining the amount, the court assesses together the economic loss sustained by the wronged spouse, the financial means of the parties and the extent of the economic imbalance arising after the divorce. The existence of graver fault may increase the liability in damages; the amount is nevertheless determined not by reference to the fact of adultery alone, but having regard to the effects of the divorce on the parties and to the economic circumstances.
Non-Pecuniary Damages
Non-pecuniary damages are directed at redressing, to a degree, the psychological devastation suffered by the wronged spouse, the injury to that spouse’s dignity and the loss of standing sustained in his or her social circle. The basis for them is Article 174(2) of the Turkish Civil Code No. 4721, under which a spouse whose personality rights are infringed by reason of the events giving rise to the divorce may claim non-pecuniary damages.
The criteria the court has regard to in determining the amount to be awarded include the suffering endured during the marriage, the adverse effects of the act on mental health, the repercussions of the incident within society and its consequences for the standing of the wronged spouse. The circumstances in which and the manner in which the infidelity was committed are also brought into the balance; whether the act became public, or came to the knowledge of the spouse’s family and social circle, is assessed within this scope.
Taking the principle of equity as its basis, the court also takes into account the economic position of the parties. The aim pursued here is not to punish the spouse at fault but to compensate, if only in part, the non-pecuniary loss of the spouse who has been wronged.
Claims for Damages Against the Third Party
Pursuant to a decision of the Court of Cassation on the unification of case law, it is not possible to bring an action for non-pecuniary damages against the third party who was the other side of the relationship of infidelity. The reasons on which that conclusion rests may be summarised as follows: a divorce action is heard solely between the parties to the marital union, and third parties have no standing as a party in those proceedings; the wronged spouse cannot hold the other side of the relationship legally liable and claim a payment from that person. Although a third party who damages the union knowing that the other person is married is open to criticism on moral grounds, the legal order does not attach liability in damages to such conduct.
Non-pecuniary damages may therefore be claimed only by the wronged spouse and only against the spouse who breached the duty of fidelity.
Effect on Custody
In actions founded on adultery, custody of the children of the marriage is determined on the basis of the criterion of the best interests of the child. In reaching its decision, the court considers the personal qualities of the mother and the father, the nature of the relationship each has formed with the child, and the effect the arrangement to be chosen will have on the child’s physical and emotional development.
The bearing of the fact of infidelity on the assessment of custody arises within the following framework. The spouse who committed the act may find himself or herself in a disadvantageous position in those proceedings; the court examines whether the situation that has arisen creates a living environment liable to harm the child’s development. If that spouse’s way of life adversely affects the child’s moral, psychological or physical development, custody may be given to the other spouse.
Adultery does not, however, mean the automatic loss of custody. What is decisive is whether the spouse concerned fulfils his or her parental obligations and whether the child has the opportunity to be raised in a healthy manner in that environment.
Consequences as Regards Alimony
Claims for alimony present a picture in actions founded on adultery that differs from that in other divorce actions, because the spouse who breached the duty of fidelity is regarded as being at graver fault and the claims are addressed within that framework.
Article 175 of the Turkish Civil Code No. 4721 confers on the spouse who will fall into poverty because of the divorce the right to claim poverty alimony from the other spouse. That right cannot, however, be exercised by the spouse who committed the act in divorces resulting from adultery. Because that spouse is at graver fault, the court will not award poverty alimony in his or her favour.
For the wronged spouse the position is the reverse; if his or her economic circumstances so require, poverty alimony may be claimed from the other spouse.
Effect on the Matrimonial Property Regime and the Division
In actions founded on adultery, the division of property is as a rule carried out in accordance with the provisions on the matrimonial property regime laid down in the Turkish Civil Code No. 4721. The act is nevertheless capable of producing consequences to the detriment of the spouse at fault in the course of the division.
Unless the spouses have adopted a different regime, the regime of participation in acquired property applies between them. Under the operation of that regime, property acquired during the marriage is divided equally between the spouses, whereas property owned before the marriage is treated as personal property and left outside the division.
Reduction or Removal of the Participation Claim
Article 236 of the Turkish Civil Code No. 4721 empowers the judge to reduce the share of the spouse at graver fault in the surplus value.
If the spouse who breached the duty of fidelity misused the common assets during the marriage, or caused the other spouse to suffer economic detriment, the court may make an equitable reduction in the participation claim or remove that share altogether. In practice, the exercise of that power results in the spouse at fault receiving a smaller share on division.
Turkish Civil Code No. 4721, Art. 236
"….. In the event of divorce by reason of adultery or an attempt on the life of the other spouse, the judge may order that the share of the spouse at fault in the surplus value be reduced equitably or removed."
Courts with Subject-Matter and Territorial Jurisdiction
As regards subject-matter jurisdiction, divorce actions founded on adultery are heard by the Family Court. If no separate family court has been established in the place where the action is to be brought, the dispute is heard by the Civil Court of First Instance sitting as a family court.
Territorial jurisdiction is governed by Article 168 of the Turkish Civil Code No. 4721. Under that provision, the action may be brought in the family court of the place of residence of either spouse, or in the court of the place where the spouses last lived together for more than six months before the date of the action.
Independent Legal Assessment
Adultery is a ground that, once proved, affords the claimant a marked advantage; the real difficulty in practice arises, however, not in the legal characterisation but in assembling the body of evidence. Submitting to the file records obtained by unlawful means frequently fails to produce the expected result and may give rise to separate legal liabilities for the party concerned. Devising the method of gathering evidence correctly from the outset is therefore the first step that determines the fate of the action.
The second critical point in managing the process is the correct identification of the moment at which the six-month preclusive period begins to run. In files where the period has been missed, the claim may be pursued on the ground that the marital union has broken down irretrievably; in that event, however, the scope of the examination of fault and the financial consequences change. In mapping out the course to be taken in a particular dispute, we recommend that the following points be given priority:
- Documenting the date of discovery and calculating the six-month period before the action is brought
- Assessing retrospectively whether there has been any conduct capable of amounting to forgiveness
- Verifying, before evidence is submitted to the file, whether it was obtained by lawful means
- Dating each act separately where continuing infidelity is alleged
- Advancing the request for reduction of the participation claim expressly in the statement of claim
- Founding the claim for custody on the criterion of the best interests of the child
Independent Legal provides advisory and litigation services throughout the whole of the process in disputes arising from divorce and the matrimonial property regime, from the framing of the litigation strategy to the enforcement of the judgment.