DIVORCE CASES IN PRACTICE

Injunction in Divorce Cases

Since it is stated in Article 389 of the HMK, which regulates the interim injunction decision, that an interim injunction can only be given on the subject of dispute, with the entry into force of the Civil Procedure Law, interim injunctions cannot be given in divorce cases.

Conditions of interim injunction ARTICLE 389- (1) In cases where there is a concern that the acquisition of the right will become significantly more difficult or impossible due to a change in the current situation, or that an inconvenience or serious damage will arise due to delay, an interim injunction may be decided on the subject of the dispute.

According to one view, a cautionary decision should be made in accordance with Article 169 of the Turkish Civil Code.

III. Temporary measures Article 169- When a divorce or separation lawsuit is filed, the judge ex officio takes the temporary measures necessary during the continuation of the case, especially regarding the accommodation of the spouses, their livelihood, the management of the spouses’ property and the care and protection of the children.

According to the practice of the Court of Cassation, in the divorce case, since the spouses in dispute do not have their property, a cautionary decision cannot be made according to Article 389 of the HMK. In addition, according to the current Supreme Court practice, as of 2015, no injunctions have been given according to Article 169 of the TMK.

Immediate Filing of the Litigation or Based on Multiple Grounds for Divorce

If there is a relationship of substantiveness between the two claims, the case should be filed in a timely manner. In the event that the case is filed in a timely manner, the Court will first decide on the original claim. The secondary request is considered only if the primary request is rejected.

It is also possible to rely on the grounds for each divorce separately. In this case, the court decides separately for each reason. If it is based on separate reasons, these reasons must be grounds for divorce that can be claimed together. For example, it will not be possible to endure the abandonment and the shaking of the foundation of the marriage union together. Likewise, a reason for divorce based on mental illness and fault cannot be claimed together.

Filing the Divorce Case as a Counterclaim

In divorce cases, even if the counterclaim is not within the time limit, the cases should be heard together, since the judgment to be rendered will affect the main case and a merger decision will be made later.

Determination of Evidence in the Case of Divorce HMK m.400

In order to collect evidence such as camera recording, it may be requested to detect evidence without a notification to the other party. Likewise, hearing the witnesses before the other party is notified and in the absence of the other party is also in the nature of determining the evidence. E.g; In the event that the witnesses will go abroad and the age of the witnesses is very advanced, it may be possible to apply for the determination of evidence.

If the Action Alleged as Fault in the Divorce Case is the Subject of the Criminal Case:

The Civil Court is not bound by the decision of the Criminal Court.
The material facts determined and finalized by the Criminal Court bind the judge.
If the presence or absence of material facts will affect the defect situation in divorce, a holding issue is made.

Continuation of Divorce Case by Heirs

VII. Inheritance Rights Item 181- Divorced spouses cannot be the legal heirs of each other in this capacity, and they lose the rights provided to them by the death-related savings made before the divorce, unless the contrary is understood from the savings.

If one of the spouses dies during the divorce case, it is decided that there is no room for a decision in terms of divorce. Because the marriage ends with the death of one of the spouses. The decision of the family court here is only about the determination of fault. If the family court decides that the surviving spouse is at fault, this affects the heirship of the surviving spouse. It is sufficient for any of the heirs to continue this case. The heirs cannot improve the case and cannot bring new evidence.

In the event of an uncontested divorce, if one of the spouses dies, according to the previous decisions of the Supreme Court, it is possible for one of the heirs to continue the divorce case, but according to the current dated decisions, this rule cannot be applied in the case of uncontested divorce.

Custody in Divorce Cases

Apart from the parties, their titles and the subject of the case, the facts on which the pending objection can be accepted must also be the same. For this reason, the objection of pending custody is not valid if a new lawsuit is filed based on other reasons while a divorce case is ongoing.

Correction for the Ferries of Divorce in the Case of Failure to Submit an Answer Petition

According to the Decision of the General Assembly of Law, in order for one of the parties to apply for the correctional procedure, there must be a procedural action that he has done before. For this reason, it cannot be said that there is a procedural process that can be improved in the event that the reply petition has never been given.

The Defendant’s Demanding the Refusal of Divorce by Filing a Counter-Claim, but Making a Demand for His Affiliates

While the other party can demand pecuniary and non-pecuniary damages in the divorce case filed without a counter-claim, if a counterclaim is filed and the divorce is rejected and demanded pecuniary and non-pecuniary damages, it has to pay a relative fee.

Prohibition of Extending and Changing the Case

The parties can freely expand or change their claims and defenses with reply and second reply petitions. After the completion of the exchange of petitions, claims and defenses cannot be expanded or changed.

Requests not covered by this prohibition:

Temporary alimony, child support, custody request, personal meeting request

Demands within the scope of the ban:

Material and moral compensation and alimony
Until the end of the investigation, the case can be reformed and a separate lawsuit can be filed. However, the party who does not submit a reply petition does not have the right to rectification.

Conversion of Divorce Case Filed for Private Divorce into Uncontested Divorce

In cases filed due to adultery or intent on life, bad or dishonorable behavior in private divorce, corrections are required in order to be decided as an uncontested divorce.

Shaking the Marriage Union

Although it is not understood from the letter of the law, according to the Supreme Court, the fully faulted spouse does not have the right to sue. However, in cases where the defendant has little fault, a divorce decision can be made. However, in this case, the defendant has the right to appeal. If the objection is in the nature of an abuse of right and there is no benefit worthy of protection for the defendant and the children, it can still be decided to divorce. According to the Supreme Court of Appeals, it is an abuse of right to object to the divorce decision of the spouse who constantly tells his wife that he does not love her.

Facts Not Properly Withheld

For example, if the witness tells a case that is not based on in the petition and a decision is made based on this, this situation is considered as a reason for reversal by the Court of Cassation.

Unbearable Events in the Shaking of the Marriage Union

Pre-marital events
Events after the date of the divorce case: According to the Court of Cassation, the events after the date of correction and the divorce case cannot be included in the case, but there are opinions to the contrary in the doctrine.
Long past events
Events after which the marital union was maintained
Forgiven events
Events preceding the dismissed case

Amnesty Events According to the Supreme Court

Being reconciled after wrongdoing
Waiver of the divorce case
Warning to return home (With the warning to return home, the behaviors before the warning date are deemed to be forgiven.)
go on vacation together
Giving up the criminal case with the aim of reconciliation (Abandonment to save from punishment is not accepted as an amnesty.
Making statements that constitute a waiver

Living Separately for Many Years

Since we have a divorce law based on fault, a long-term de facto separation in our law is not sufficient for a divorce to be decided.

Inability to Have Sexual Relationship

First of all, it is accepted that the person who avoids sexual intercourse is defective. If the non-sexual intercourse is caused by a disease and the person is receiving treatment, it cannot be mentioned as a fault. If the spouse avoids treatment even though he has the disease, he is at fault. According to the Supreme Court of Appeals, if the woman does not have any discomfort and it has not been proven that she is not the one who abstained from intercourse, the man is at fault.

According to the Supreme Court, the party who does not want a child without a reasonable reason is also at fault.

Uncontested Divorce

Judge’s Change

Although it is possible for the judge to make changes in the agreed divorce protocol, this change should be approved by the spouses. If the change is not deemed appropriate by the spouses, the case automatically turns into a contested divorce case.

Registration Decision in Uncontested Divorce Case

Since uncontested divorce cases do not go through the Supreme Court’s control, there is no integrity in practice. Some judges include the provision regarding the registration of immovables in the decision as a determination, some judges decide on registration but demand relative fees, while some judges decide on registration and demand fixed fees. But the right practice is to make the registration decision.

In the Uncontested Divorce Case, the Parties Do Not Have to Agree on the Liquidation of the Property Regime

In Uncontested Divorce, the Agreement can be reversed until the decision is finalized. In this case, the case continues to be considered as a contested divorce.

Facts That Appear to Be Existing After the Finalization of the Divorce

In this case, the requests for the retrial are not accepted because the people here accept the divorce with their free will. However, these may be the subject of a separate action for compensation. If the conditions of the tortious act are fulfilled, a lawsuit for moral compensation may be filed.

Claims Not Covered by Pecuniary Indemnity

According to the Court of Cassation, in cases such as wedding expenses, property demand, loss of earnings, they are subject to separate charges as they are not an annex to the divorce case. The rationale for pecuniary compensation is that an existing or expected interest of the person is damaged due to marriage.

It is not obligatory to pay the pecuniary compensation in money, it can also be demanded in kind depending on the nature of the event.

Compensation

Flaws Not Accepted as an Attack on Personal Rights:

– Not providing an independent house, not establishing a marriage union after the marriage, unaware of the natural structure of the hymen, accusing the wife of the husband, not fulfilling the duties of the marriage union.

If it is decided to divorce due to abandonment, non-pecuniary damages cannot be decided against the leaver because the phenomenon of abandonment is not considered as an attack on personal rights.

It cannot be decided to pay the moral compensation in the form of annuity or in the month. Moral compensation cannot be the subject of a partial lawsuit, nor can it be increased by rehabilitation.

Joint Custody

In the case of joint custody, the child’s daily care is covered by the single parent and the child stays with this parent. The personal relationship between the child and the parent he/she does not live with is determined as single custody. Again, the parent with whom the child does not live pays child support for the child’s expenses. The difference between joint custody and sole custody is that the spouses decide together on important issues related to the child.

Stj.Av.Rumeysa Özge Uzkan

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1 DIVORCE CASES IN PRACTICE

DIVORCE CASES IN PRACTICE