Divorce does not merely separate the parties emotionally and in fact; it is a legal process that leaves behind a great many consequences of a pecuniary and a non-pecuniary nature. As is frequently seen in practice, the parties complete the process without ever raising claims for damages, because they do not fully know the extent of the rights they hold. Yet the Turkish Civil Code affords the party who suffers loss by reason of the divorce the possibility of seeking compensation for that loss.
Certain economic interests held during the marriage, or expected to be obtained in the future, may disappear when the union comes to an end. Where such a loss has arisen, pecuniary damages come into play. In addition, if the events leading to the divorce have injured the personality rights of one of the spouses, non-pecuniary damages may also be claimed. A typical example of this is conduct such as violence, insult or adultery being assessed both as a ground for divorce and as a basis for non-pecuniary damages.
In this briefing note we address the circumstances in which pecuniary or non-pecuniary damages may be awarded, the weight of fault in that assessment, how the amount is determined, the time limits that apply, and how damages are shaped in an uncontested divorce.
The Legal Framework of Damages on Divorce
The ending of a marriage by divorce produces not only emotional but also economic and non-pecuniary consequences. The Turkish Civil Code allows the aggrieved spouse to bring a claim for pecuniary and/or non-pecuniary damages where certain conditions are met. The provision is found in Article 174 of the Turkish Civil Code No. 4721:
Turkish Civil Code No. 4721 Art. 174
“The party who is not at fault, or who is less at fault, and whose existing or expected interests are injured by reason of the divorce may claim appropriate pecuniary damages from the party at fault. The party whose personality right is infringed by reason of the events giving rise to the divorce may claim payment of an appropriate sum of money as non-pecuniary damages from the other party who is at fault.”
The provision clearly shows that fault plays a determinative role in claims for damages arising from divorce. That said, the conditions and scope of the two types of damages differ from one another.
- Where there is an infringement directed at personality rights, non-pecuniary damages come into play; a spouse subjected to violence, insult or conduct injurious to dignity during the marriage may advance such a claim.
- Pecuniary damages arise where a spouse who has suffered economic loss by reason of the divorce seeks to have that loss met by the spouse at fault.
We examine in detail in the sections that follow the differences between the two types of damages and the conditions particular to each.
Pecuniary Damages in Divorce
Marriage is as much an economic partnership as it is an emotional bond. Throughout the union, the spouses build a shared life through their material and non-material contributions to one another. When that partnership comes to an end with the divorce, one of the parties may be faced with economic losses.
At this point the party who is not at fault in the divorce, or whose fault is the lesser, may claim pecuniary damages from the other spouse in order that his or her injured existing or expected interests may be met. These damages, provided for by the Turkish Civil Code, are intended to redress the economic loss arising after the divorce.
Conditions for an Award of Pecuniary Damages
An award of pecuniary damages in a divorce action depends on the fulfilment of certain conditions. The judge may uphold the claim only where he or she establishes that these conditions exist.
The marriage must have come to an end by a judgment of divorce. For a claim for pecuniary damages to be entertained, the union must necessarily have ended in divorce. If the marriage has ended for another reason, such as death or a declaration of presumed death, the parties may not claim pecuniary damages from one another.
The claim must have been expressly advanced. The judge may not award pecuniary damages in the absence of a claim. The claim must therefore be expressly raised in the course of the action or before the action is concluded.
The spouse against whom damages are sought must be found to be at fault. For damages to be awarded, it is required that the other party be at fault in the divorce. The following may be given as examples of conduct regarded as fault:
- Inflicting physical or psychological violence on the spouse
- Acting contrary to the duty of fidelity, that is to say, adultery
- The marital union being shaken at its foundations by reason of gambling, alcohol or narcotic addiction
- Grave insult or conduct of a demeaning nature
The claimant spouse must be blameless or less at fault. The party bringing the claim must either be at no fault at all or be at a lesser degree of fault than the other party.
For example:
- If one of the spouses has committed adultery while the other has merely uttered an insult, the spouse who uttered the insult may be regarded as less at fault and may claim damages.
- It should nevertheless not be forgotten that the proportion of fault is a matter for the judge’s discretion according to the circumstances of the particular case.
The interests arising from the marriage must be injured by the divorce. For damages to be claimed, the spouse must have suffered an economic loss by reason of the divorce. In the case law of the Court of Cassation the following losses are assessed within this scope:
- Loss of the right of inheritance: The loss of that opportunity by a party who, had the divorce not taken place, would have benefited from the spouse’s estate is regarded as a loss of expected interest.
- The ending of the opportunity to benefit from the spouse’s health insurance: The spouse who benefits from the other party’s insurance being deprived of that right on divorce.
- The disappearance of economic support: For instance, a spouse who does not work falling into difficulty in making ends meet after the divorce.
- The ending of a joint business or commercial partnership: Where the spouses carry on a business together, one of the parties losing the status of partner on divorce.
Losses of this nature may be regarded as falling within the injury to existing or expected interests and may thus form the basis of a claim for pecuniary damages.
How Is the Amount of Pecuniary Damages Determined?
The amount of pecuniary damages is assessed by the judge by weighing together more than one factor, such as the parties’ economic position, the duration of the marriage and the proportion of fault. The aim pursued here is not to punish the spouse at fault but to remedy the detriment suffered by the spouse who has sustained economic loss by reason of the divorce.
The principal factors the court takes as its basis in determining the amount are examined under the headings below.
The Economic Position of the Parties
One of the most determinative criteria in fixing the amount is the spouses’ economic means.
- The paying spouse’s capacity to pay is taken into account; if that spouse’s financial position is not favourable, an excessively high amount will not be awarded.
- How the claimant spouse will be affected economically after the divorce is examined.
Example:
- A spouse working on the minimum wage cannot be expected to pay exorbitant damages to a party with a high income.
- A spouse in a good financial position may be required to pay higher damages to a spouse who has lost his or her job or has a low income.
The Financial Losses Caused by the Divorce
The judge investigates the extent to which the divorce affects the claimant spouse’s existing and expected interests.
- Where the spouses carry on a business together and the ending of the partnership gives rise to an economic loss, damages may be awarded.
- A spouse in the position of a homemaker being left without any economic security after the divorce may constitute a ground for increasing the amount.
- The ending of the spouse’s insurance or inheritance rights on divorce is likewise taken into account in determining the amount.
The Existence and Degree of Fault
Pecuniary damages are paid by the spouse at fault in favour of the blameless or less at-fault spouse. The gravity of the fault nevertheless also plays an important role in fixing the amount.
- Where the parties are equally at fault, no pecuniary damages are awarded.
- A higher payment may be expected from a gravely at-fault spouse.
- A higher amount may be fixed in favour of a spouse whose fault is slight or who is at no fault at all.
Example:
- If one of the spouses has committed adultery while the other has merely uttered an insult, the adulterous spouse is regarded as gravely at fault and the amount is shaped accordingly.
For detailed information on the weight carried by fault in divorce, see our note entitled The Importance of Fault in Divorce.
The Duration of the Marriage
How long the union lasted is a factor directly affecting the amount of damages.
- In short marriages the amount fixed generally remains lower.
- In long marriages the amount may rise, since the parties’ economic lives have become far more intertwined.
Example:
- In a marriage lasting one year, where the parties’ economic position has not been appreciably affected, the amount may be kept low, and it is equally possible that no damages will be awarded at all.
- In a marriage of twenty years, where one of the spouses gave up a career and stayed at home, he or she may receive higher damages on account of the economic loss to be suffered after the divorce.
Payment in a Lump Sum or by Instalments
Pecuniary damages are as a rule paid in a lump sum. They may nevertheless in certain circumstances be fixed in the form of monthly payments.
- Where payment by instalments is ordered, it may be agreed that the damages be paid over a certain period.
- Having regard to the liable spouse’s capacity to pay, the judge may order the damages to be paid in advance or in instalments at fixed intervals.
The Limitation Period for a Claim for Pecuniary Damages
Pecuniary damages may be advanced while the divorce action is being heard, and may equally be claimed by way of a separate action after the judgment of divorce has become final. This claim must, however, be exercised within a certain period.
Under the Turkish Civil Code, a spouse who is to claim pecuniary damages after the judgment of divorce has become final must bring the action within one year of the date on which it became final. If no claim is made within that period, the right to bring an action is lost by reason of the statute of limitations.
Time begins to run on the date on which the judgment of divorce became final. If, for instance, the judgment became final on 10 May 2026, the action for damages must be brought by 10 May 2027 at the latest. An action brought after that date will be dismissed by the court on the ground of the statute of limitations.
Non-Pecuniary Damages in Divorce
Divorce may produce grave consequences for the parties not only economically but also psychologically and emotionally. In particular, a grave infringement by one of the spouses of the other’s personality rights during the marriage opens the way to a claim for non-pecuniary damages after the divorce.
Article 174(2) of the Turkish Civil Code No. 4721 regulates this matter. Under that provision, the party whose personality right is infringed by reason of the events giving rise to the divorce may claim payment of an appropriate sum of money by way of non-pecuniary damages from the other spouse who is at fault.
The Purpose of Non-Pecuniary Damages
Non-pecuniary damages are provided for not in order to punish the spouse at fault, but so that the psychological harm suffered by the aggrieved spouse may be remedied, at least in part. The basis of the damages lies in consequences such as the distress felt by the aggrieved party, the injury to his or her honour, or his or her humiliation in society.
Circumstances in Which Non-Pecuniary Damages May Be Claimed
In awarding these damages the courts assess together the gravity of the infringement directed at personality rights and what occurred during the marriage. The principal circumstances that may form the basis of non-pecuniary damages are as follows:
- Desertion and indifference: Where leaving the spouse without affection and attention for an extended period gives rise to non-pecuniary devastation, a claim for damages may arise.
- Insult and humiliation: Demeaning words directed at the spouse, or conduct undermining his or her reputation in public, may be regarded as a ground for damages.
- Violence and ill-treatment: A spouse subjected to physical, psychological or economic violence may claim non-pecuniary damages.
- Adultery, that is to say, infidelity: Since a breach of the duty of fidelity injures the other spouse’s honour, it may constitute a ground for damages.
Determining the Amount of Non-Pecuniary Damages
The amount of non-pecuniary damages is assessed by the judge having regard to the features of the particular case. The court may not, however, exceed the amount sought by the claimant spouse; the amount is limited by the claim and may not be increased by the judge of his or her own motion.
The following factors are taken into account in fixing the amount:
- The economic means of the spouse at fault
- The extent of the psychological harm suffered by the aggrieved spouse
- The gravity of the violation directed at the integrity of the family
- The degree of the infringement of personality rights
Non-pecuniary damages have a feature that distinguishes them from pecuniary damages: they are paid only once and in a lump sum. They may not be paid in the form of regular payments, that is to say as an annuity, nor may they be transferred by way of inheritance.
The Limitation Period for Non-Pecuniary Damages
A claim for non-pecuniary damages may be advanced while the divorce action is pending; it may in addition be made the subject of a separate action within one year of the judgment of divorce becoming final.
If no claim is made within that period, the right to non-pecuniary damages becomes time-barred and the possibility of bringing an action falls away.
Pecuniary and Non-Pecuniary Damages in an Uncontested Divorce
An uncontested divorce is a process in which the spouses agree both on the intention to divorce and on all the legal consequences the divorce will produce. By means of the Uncontested Divorce Protocol they draw up within this framework, the parties may also reach agreement on damages.
Unlike in contested actions, no condition of fault is required in an uncontested divorce. In other words, the judge does not examine the parties’ position as to fault when giving judgment on damages.
How are damages determined in an uncontested divorce?
- If no agreement can be reached on damages, the divorce cannot be effected on an uncontested basis and the process may turn into a contested divorce action.
- If one of the parties seeks pecuniary and/or non-pecuniary damages, the other party must accept both that claim and the amount.
- The judge awards the amount agreed upon and makes no change to that amount.
Points to be borne in mind:
- Damages agreed in an uncontested divorce are binding and final; they cannot subsequently be increased or reduced.
- The judge’s task is not to assess a claim for damages but to approve the agreement contained in the protocol.
- The amount must have been determined by the free will of the spouses.
In the result, pecuniary and non-pecuniary damages in an uncontested divorce rest entirely on the mutual agreement of the parties. It is therefore of great importance that all matters be regulated clearly when the protocol is drawn up.
For details on the procedure for bringing a divorce action, see our note entitled How Is a Divorce Action Brought?
Independent Legal Assessment
In claims for damages arising from divorce there are two axes that determine the fate of the action: on whom, and with what gravity, fault is placed, and whether the loss can be established in concrete terms. The principal reason for the dismissal of claims in practice is not the absence of a legal basis but the failure to reflect the economic loss or the infringement of personality rights in the file. Allegations must therefore be supported by documentary and witness evidence rather than by abstract narrative.
It should further not be overlooked that pecuniary and non-pecuniary damages are heads independent of one another, and that claiming one does not encompass the other. The one-year period that begins to run once the divorce becomes final is, in practice, the point at which rights are most often lost. In a particular file the following headings should be addressed as a priority:
- Setting out the claims for pecuniary and non-pecuniary damages separately and with amounts stated in the pleadings
- Giving concrete form to the events founding the other party’s fault by linking them to dates and to items of evidence
- Documenting the economic interests lost by reference to insurance, partnership and income records
- Fixing the amount sought in non-pecuniary damages bearing in mind that the judge may not exceed it
- Monitoring the date on which the judgment of divorce becomes final and not missing the one-year period
- Drafting the text of the protocol in an uncontested divorce with care, in the knowledge that it cannot subsequently be altered
Independent Legal provides advisory services across the whole of the process in disputes concerning pecuniary and non-pecuniary damages arising from divorce, from building the strategy for the claim to the preparation of the protocol and the conduct of the action.