An offence in which one spouse becomes involved may at times render the marital union impossible to sustain for the other spouse. The offences meant here are acts regarded as shameful or dishonourable within society’s general value judgements; sexual harassment and sexual assault offences are counted among the typical examples of this category. Where one of the spouses becomes involved in an act of that kind, the other spouse, who can no longer be expected to continue living with him or her, may bring a request for divorce before the family court. That situation is not an absolute ground for divorce; it is relative in nature. In other words, it is for the judge to assess whether continuation of the shared life can be expected.
This ground for divorce is regulated in the Code among the specific grounds. Since it is not counted among the absolute grounds, it is not considered sufficient merely to establish that an offence of a degrading nature has been committed; it is further required that, by reason of that act, continuation of the marriage has become something that cannot be expected of the other spouse. In actions relying on a relative ground, the judge’s margin of discretion is considerable.
The Concept of a Degrading Offence
Turkish Civil Code No. 4721 Art. 163 provides that recourse may be had to divorce where one spouse commits an offence of a degrading nature and, for that reason, continuing the union can no longer be expected of the other. The first question that the provision brings to mind is which acts fall within this concept and may justify a divorce.
What is meant by the expression “degrading offence” is acts of a shameful or dishonourable character. These are offences that moral rules and society do not countenance and that make the average person blush when they are committed.
Conditions Required for the Action
This situation appears as one of the specific grounds for divorce set out in Article 163 of the Turkish Civil Code No. 4721. The feature distinguishing this ground from its counterparts is that it covers offences committed against third parties rather than acts directed at the spouse.
Turkish Civil Code No. 4721 Art. 163
“Where one of the spouses commits a degrading offence or leads a dishonourable life and, for these reasons, living together with him or her cannot be expected of the other spouse, that spouse may bring an action for divorce at any time.”
The Existence of an Act of a Degrading Nature
The offences falling within this scope are forms of conduct regarded as dishonourable within the moral standards of the public. The judge determines whether the act is degrading not by looking at the severity of the sentence imposed, but by taking as a basis the understanding prevailing in society. Three points must be underlined in this assessment.
First, not every offence can be subjected to this characterisation; the type of the act, the manner in which it was committed and the effects it produced are weighed together by the court. Secondly, certain acts not generally accepted as degrading may also fall within this scope in the particular circumstances of the case; the judge exercises the power of discretion anew in every file. Thirdly, completion of the criminal proceedings is not required; even where there is no decision of a criminal court, recourse may be had to divorce if it can be proved that the act took place.
The Continuation of the Shared Life Not Being Capable of Being Expected
A further condition required by the Code under this article is that continuation of the union cannot be expected of the other spouse by reason of the act committed. For that reason, the fact that the spouse has genuinely committed a dishonourable offence is not in itself sufficient for a decree of divorce. Where the act has been committed but the shared life has not become intolerable, the action will be dismissed. Put differently, what is decisive in actions relying on this ground is whether the offence has rendered living together unbearable for the other spouse.
Court of Cassation, 2nd Civil Chamber, Case No. 2014/20560, Decision No. 2015/4947, Decision Date: 19.03.2015
“It is apparent from the investigation carried out and the evidence gathered that the respondent sexually harassed a twelve-year-old girl, that the offence was found to be established and that he received a sentence on that account. The court of first instance dismissed the action on the grounds that ‘it had reached the conscientious conviction that the respondent’s having committed this offence on one occasion would not in itself give rise to divorce, that it had to be proved that this situation had rendered the marriage intolerable for the other spouse, and that no evidence had been adduced to that effect’. The action was brought in reliance on the ground of ‘committing a degrading offence’ set out in Article 163 of the Turkish Civil Code; having regard to the nature of the offence committed, it is clear and beyond dispute that, given that the claimant has brought an action, living together with him cannot be expected of her. The ground for divorce has materialised. Whereas the action ought to have been allowed, the dismissal of the request was not found to be correct.”
The Act Having Taken Place During the Marriage
In actions relying on this ground, a number of procedural conditions must also have been fulfilled; one of them relates directly to the date of the marriage. The point to be noted is the requirement that the degrading act fall within the period after the marriage was contracted. An action brought on the basis of an offence committed before the marriage will be dismissed. That said, even where the act predates the marriage, the spouse who was unaware of it has other avenues available: annulment of the marriage may be requested if the conditions are met; or an action for divorce may be brought in reliance on the irretrievable breakdown of the marital union.
Proof in the Action
The commission of the offence must be established in the proceedings, and more than one type of evidence may be relied on for that purpose.
As regards the decision of the criminal court, the following must be stated: where the act has been the subject of criminal proceedings and has resulted in a conviction, that decision carries the value of conclusive evidence. The fact that an acquittal has been given, on the other hand, does not mean that the action for divorce will necessarily be dismissed.
Alongside this, the principal items of evidence that may be relied on are as follows:
- Police records and investigation documents: Reports drawn up by the security units in connection with the offence and the documents in the investigation file may be used as means of proof in the divorce proceedings.
- Recordings and correspondence: Video recordings, audio recordings, message content, social media posts and electronic mail may be submitted to the court as evidence.
- Witness statements: The statements of persons who personally witnessed the act are among the important items of evidence relied on in actions of this kind.
Claims for Damages
In actions for divorce relying on this ground, the spouse in the position of victim may bring a claim for pecuniary and non-pecuniary damages. Pursuant to Article 174 of the Turkish Civil Code No. 4721, the court may award damages by assessing the economic losses and the psychological harm suffered by the aggrieved spouse.
Pecuniary Damages
The function of pecuniary damages is to prevent the aggrieved spouse from suffering economic loss by reason of the divorce. Where the spouse who committed the degrading act has caused a diminution in the other’s assets, he or she may be held liable to pay damages measured by equity.
For example, if the aggrieved spouse has had to give up his or her employment because of the offence committed, has been adversely affected psychologically or has lost standing in his or her social circle, the amount of pecuniary damages awarded by the court may be higher.
Non-Pecuniary Damages
What non-pecuniary damages seek to achieve is to make good, to a degree, the psychological attrition suffered by the aggrieved spouse, the damage to his or her standing and the attack directed at his or her personality rights. Within the framework of Article 174(2) of the Turkish Civil Code No. 4721, a spouse whose personality rights have been infringed by reason of the degrading act may claim non-pecuniary damages.
These damages are directed at partially redressing the non-pecuniary loss of the aggrieved spouse; they do not have the character of a penalty imposed on the spouse at fault. The courts assess the amount of damages within the criterion of equity.
Consequences as Regards Alimony
Under the scheme of the Turkish Civil Code, claims for alimony in actions for divorce relying on this ground are decided by having regard together to the financial circumstances of the parties and the distribution of fault. Since the spouse who is the perpetrator of the act is treated as being at fault, there is no obstacle to alimony being awarded in favour of the other spouse.
As regards poverty alimony, the position is as follows: the aggrieved spouse who will fall into economic hardship following the divorce may claim poverty alimony, provided that he or she is without fault or is found to be less at fault (Turkish Civil Code No. 4721 Art. 175). The spouse who committed the degrading offence, by contrast, is treated as being seriously at fault and cannot make such a claim.
In determining the amount of alimony, the court assesses together the income levels of the parties, the economic losses suffered by the aggrieved spouse and the living conditions after the divorce.
Consequences as Regards Custody
In actions relying on this ground, custody is determined by the court on the basis of the best interests of the child. Pursuant to Article 182 of the Turkish Civil Code No. 4721, the decisive criterion is which parent can better safeguard the physical, psychological and social development of the child.
The custody position of a parent who has committed a degrading offence may be adversely affected where the child is brought up in a criminal environment or is exposed to crime, where the act harms the child directly or indirectly, where the child’s safety and health come under threat, and where the parent becomes a source of risk to the child’s development.
The Effect of the Act on the Custody Decision
In deciding on custody, the court weighs the following points: whether the parent who committed the act has placed the child’s safety at risk, the direct and indirect repercussions of the offence on the child, which parent is more suitable in terms of the child’s physical and psychological development, and the extent to which the child has been affected by what has occurred between the parents.
For example, if one of the parents has become involved in a degrading act such as drug trafficking, sexual offences, fraud or theft, the court may leave custody to the other parent in order to remove the child from that environment.
Can Custody Be Lost?
Having committed a degrading offence does not of itself result in the loss of custody. The court assesses that fact by placing the best interests of the child at the centre.
The likelihood of custody being left to the other parent increases markedly where the parent who committed the act harms the child directly, where the child suffers psychological or physical harm because of those criminal activities, and where the offence committed disrupts the environment in which the child is brought up.
Conversely, it is also possible for custody not to be lost altogether. The outcome may differ if the act was directed solely at the spouse and caused no harm to the child, if it is established that the parent has maintained a positive parenting attitude towards the child, or if the court has had recourse to the report of an educational psychologist or a social worker.
For example, if it is apparent that a parent convicted of fraud has not neglected the care of the child, the court may leave custody to that parent. Where sexual offences or acts threatening the child’s safety are in issue, by contrast, it may be said that custody will in all likelihood be given to the other parent.
The Court with Subject-Matter and Territorial Jurisdiction
In actions for divorce relying on the ground of a degrading offence, subject-matter and territorial jurisdiction are determined within the framework of Article 168 of the Turkish Civil Code No. 4721.
As regards subject-matter jurisdiction, these actions belong to the Family Courts. Where no separate Family Court has been established in the place in which the action is to be brought, the Civil Court of First Instance hears the dispute in its capacity as a family court.
As regards territorial jurisdiction, Article 168 offers two options: the action may be brought before the Family Court at the domicile of either of the spouses, or before the Family Court at the place in which the spouses last lived together for at least six months. The claimant spouse may choose whichever of these two places he or she wishes.
The Time Limit for Bringing the Action
The legislature has not laid down any preclusive period in respect of actions for divorce based on Article 163. Recourse may therefore be had to an action at any stage at which the shared life has become unbearable following the commission of the act by the spouse.
That said, the fact that the marriage has been continued for a considerable time despite the commission of the offence may be interpreted by the court as showing that the claimant has come to terms with the situation or has forgiven it. On such an assessment, the action may be dismissed on the ground of a breach of the rule of good faith.
To summarise briefly: although the Code contains no strict time limit for an action for divorce relying on this ground, a failure to bring the action for a long time after learning of the act may be interpreted against the claimant by the court; it is therefore important, in order to avoid the loss of a right, to take action within a reasonable time.
Details of the procedure for bringing an action for divorce can be found in our note entitled How Is an Action for Divorce Brought?
The Independent Legal Assessment
In actions based on Turkish Civil Code No. 4721 Art. 163, the real difficulty in practice lies not in the existence of the offence but in establishing that the offence has rendered the shared life intolerable. Since a relative ground for divorce is in issue, the court’s power of discretion can be guided by the concrete material placed on the file. The statement of claim must therefore expressly establish the link between the nature of the act and the claimant spouse’s social and family position.
Moreover, these actions rarely proceed on their own; because they advance together with claims for damages, alimony and custody, the strategy must be conceived as a whole from the outset. The headings to be prioritised in a particular file are as follows:
- Establishing by documentary evidence that the act belongs to the period after the date of the marriage
- Obtaining the file where a criminal investigation or prosecution exists and using the conviction as conclusive evidence
- Supporting the claim that the shared life has become intolerable with witness, record and social-circle evidence
- Calculating in advance the effect of the distribution of fault on the claims for alimony and damages
- Preparing concrete grounds based on the criterion of the best interests of the child in the custody claim
- Bringing the action within a reasonable time after learning of the act, so as to forestall any interpretation of forgiveness or acceptance
Independent Legal provides advisory services throughout the entire process in disputes arising from family law, from the preparation of the action for divorce to the pursuit of claims for damages, alimony and custody.