Divorce Due to Inability to Have a Sexual Relationship

2022-01-26T12:51:16+00:00 12 February 2021|

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DIVORCE DUE TO FAILURE TO HAVE A SEXUAL RELATIONSHIP

Is Inability to Have a Sexual Relationship a Reason for Divorce?

“According to the established practice of the Supreme Court, besides the social purpose of marriage, perhaps more importantly, there is also the purpose of perpetuating the generation and satisfying sexual desires. It is understood that the parties could not have sexual intercourse during the long marriage period, even for psychological reasons. This situation shakes the foundation of the marriage union. In the face of the unsuccessful sexual intercourse, there is no doubt that a justified hatred, or at least reluctance, will arise between spouses. It is not possible to accept such a situation as a fault for the plaintiff. It is clearly unfair to force the plaintiff to wait for the sexual intimacy, which is uncertain when it will take place and whether it will continue after that. Under these circumstances, the plaintiff cannot be expected to continue the marriage union.” (Court of Appeals 2nd Law Department 24.05.200 Decision)

According to both the Turkish Civil Code and the Supreme Court Decisions, the inability to establish sexual relations between spouses is one of the behaviors subject to divorce in divorce proceedings due to the deterioration of the marriage union. One of the spouses can file a divorce case against the spouse who cannot have sexual intercourse and is defective in not having sexual intercourse, on the grounds that the marital union is fundamentally shaken. However, a certain period of time must pass in the union of marriage in order for it to be fixed that the sexual relationship cannot be established. For example, inability to have sexual intercourse in a 3-day marriage is not accepted as a reason for divorce.

As a matter of fact, the decision of the 2nd Law Chamber of the Court of Cassation dated 08.0.2002 is in this direction:

“….The parties stayed together for 5 days. This period is not sufficient to accept that there is sexual incompatibility between the parties. Only the fact that the sexual relationship could not be established within 5 days does not indicate that the marriage union has been shaken to its foundations.

The time required to accept that the marriage union has been shaken from its foundation due to the inability to establish sexual intercourse is not specified in the Law, but the Supreme Court of Appeals has accepted in a decision that the failure to establish a relationship within a period of 5 months is sufficient to undermine the marriage union.

In the divorce case filed due to the inability to establish sexual intercourse, if the other party does not accept this situation, that is, if there is a conflict between the spouses, only the witness statements will not be sufficient, a report will be required by the Court. Because, as the Supreme Court has stated in its settled decisions, witness statements cannot be valued in matters that require scientific and expertise.

Does a Non-Faulty Spouse Have a Right to Claim Compensation?

The spouse who is at fault for not having sexual intercourse will have to pay compensation to the other party if there is a demand. However, the point to be considered here is whether the spouse who causes the inability to have sexual intercourse is “flawed”. Because if the spouse has an incurable disease in the absence of sexual intercourse after the report received by the Court, the other party’s claim for compensation will be rejected, since this situation is not caused by the spouse’s fault. However, it does not matter whether the spouse is at fault or not in terms of divorce, since there is still the inability to establish a sexual relationship, which causes the marital union to be shaken to its foundations.

If the spouse who causes the inability to have sexual intercourse has a curable disease and the spouse does not want to be treated, this situation shows that the spouse is at fault, and the other party will have the right to demand compensation.

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