The Divorce On the Ground of Adultery
The divorce on the ground of adultery is indicated at article 161 of the Turkish Civil Code No.4721. According to Turkish Civil Code, the adultery is an absolute and special cause of divorce. Pursuant to the article 161 which is titled ‘Grounds for Divorce’ of the Turkish Civil Code No.4721, if one of the spouses commits adultery, the other spouse may file a divorce case. The right to sue will be lost at the end of 6 months starting from the date that the spouse who has the right to sue learned the ground for divorce and at the end of 5 years in any case starting from the date that the adultery aroused.
The adultery is the heavily violation of loyalty obligations of the spouses against each other which arises from the union of marriage. So adultery is that one of the spouses has sexual intercourse with a member of the opposite sex knowingly and willfully during the union of marriage. Thereby, a valid marriage must exist between the spouses for adultery to accure. The divorce case on the ground of adultery is seen as a contested divorce case. Because of the difference between the definition of adultery in Turkish Civil Law and Muslim Law, sexual intercourses that unmarried people have is not considered as adultery. Adultery is not defined as a crime which has penal sanctioning within the scope of Turkish Criminal Law. However, adultery constitutes a cause of action for compensation and affects the process of the division of matrimonial property within the scope of Turkish Civil Code.
Some conditions are required for an act to constituted ground for divorce and be accepted as adultery within the scope of Turkish Civil Code No.4721
The Conditions that An Act is Considered as Adultery within the Scope Of Turkish Civil Code
I- The Marriage Union exists between the spouses
The existence of marriage union is required between the spouses for an act to be considered as adultery within the scope of Turkish Civil Code. A valid marriage must be performed by a authorized official authorities. Thereby, if one of the spouses finds out that the other spouse had sexual intercourse with a member of the opposite sex during the engagement, he/she can not file for divorce on the ground of adultery. In the existence of the required conditions, parties may file for divorce on the ground of irretrievable breakdown of the marriage by the evaluation of concrete case.
II- One of the spouses must have sexual intercourse with a member of opposite sex
One of the spouses must have sexual intercourse with a member of opposite sex knowingly and willfully for an act to be considered as adultery within the scope of Turkish Civil Code. Thereby hugging, kissing, flirting, corresponding and having close touch with a member of opposite sex without having sexual intercourse and similar situations are not accepted as adultery. As Turkish Law system does not have legislative regulations about homosexual relationships, that kind of intercourses are not evaluated within the scope of adultery. Therefore filing a divorce case on the ground of adultery by the reason of lesbianism and homosexual relationships is not valid. In addition to that having sexual intercourse with an animal is not a ground for filing a divorce case. The methods of artificial inseminations are not evaluated as adultery because adultery defined as having sexual intercourse with someone physically.
III- The adulterous must be guilty
The adulterous must be guilty for an act to be accepted as adultery within the scope of Turkish Civil Code. The guilt constitutes as a subjective element of adultery. Thereby, being raped, having sexual intercourse involuntarily, having sexual intercourse with the spouse who was forced to use drugs and similar situations are not suitable for filing a divorce on the ground of adultery. The spouse must breach the obligation of loyalty by having sexual intercourse with somebody else willfully and knowingly for an act to be counted as an adultery.
The spouse who claims the existence of adultery, must prove his/her claim. The adultery can be proved by any kind of evidence by the spouse. Hence, adultery can be proved by phone and SMS records, chat history of Facebook, Whatsapp, Messenger and similar social media platforms, holiday and hotel reservations, witness acknowledgements, photographes and videos etc. The evidence that is used to prove adultery must be legal. Another important point is to form an opinion on the judge about the existence of adultery. In this case, the judge will make a decision with appreciated concrete case and relevant evidences freely. The spouse who wants to get divorce for adultery can file a divorce case on the ground of adultery as well as file a divorce case on the ground of irretrievable breakdown of the marriage at the same case. The confession by the adulter spouse does not bind the judge if there is no other evidence.
According to Turkish Civil Code No. 4721, divorce case can not be filed if the spouse forgives the adulter spouse. The forgiveness may be explicit or implicit as well as written or orally.
If both spouses commit adultery, both spouses have the right to file a divorce case on the ground of adultery separately. Therefore, committing adultery by one of the spouse does not legitimize other’s spose to commit adultery.