26 Jan If The Spouse Continues To Live Together While The Divorce Case Continues, The Case Is Rejected?
Turkish Civil Code 166/1. In order to decide on divorce in accordance with the article, the marriage union must be shaken to the extent that they cannot expect them to live a common life. The fact that the spouses continue to live together while the divorce proceeding continues shows that it is actually possible to sustain the common life that the marriage unity is not based on.
While the divorce proceedings, the spouses may declare their forgiveness or act against them. In this case, it is decided to reject the filed divorce case. This statement may be written or implied. In this sense, according to the case-law of the Supreme Court, for example, the spouses to go on holiday together with the divorce case, or continue to live in the same house to each other implicitly pardoned or marital unity is not shaken to the base of the marriage of spouses, spouses to have sexual intercourse is also an example of behavior. As a result, the court will decide the denial of the divorce case.
If the spouses came together after a divorce and they started to live together with the will to continue the marriage unity, the divorce cannot be decided based on the reasons for the previous divorce. However, these facts must be proven in order to decide on a divorce if they are based on the reasons after settling down.
Since the parties have come together again, they will be willing to continue their marriages by forgiving the past events and they have to accept that they have forgiven each other in terms of the events between them. In this case, it is not possible for the parties to rely on each other as a reason for divorce from previous events and to give a divorce decision for the same reason.
The divorce case is rejected because of the shaking of the unity of the marriage union. It is recognized that the marital unity was not shaken because the marriage unity continued and the spouses continued to live together. It is determined within the framework of the honesty rule in which the elapsed time is long. In the case of divorce based on the cause of denied life, there is no right-lowering period. In the framework of the honesty rule can always be based on this reason. However, this case is rejected because the divorce case, based on the unjustified life that has been opened after long years, eliminates the necessity for the marriage union to become unbearable. In the case of divorce because of adultery in the case of adultery for six months from the learning of the verb, and in any case five years after the actual execution of the action falls. As mentioned in the articles 161 and 162 of the Turkish Civil Code, the right to open the divorce proceedings due to over six months and five-year periods due to caste for the reasons of adultery and life is reduced as well as the forgiveness with written or verbal declaration or with the act of affirmative action in the light of the decisions of the Court of Cassation.
Decision of the Supreme Court on the subject
T. C
SUPREME COURT
GENERAL ASSEMBLY OF LAW
ESAS NO.2011 / 2-634
DECISION NO.2011 / 720
DECISION DATE30.11.2011
DIVORCE
THE MARRIAGE OF THE MARRIAGE UNION
”The text of the case-law“
At the end of the proceedings due to the yapılan divorce ”case between the parties; Upon the request of the defendant representative to examine the decision dated 12.11.2009 and 2009/189 E., 2009/879 K. given by Eskişehir 2nd Family Court, the Court of Appeals of the 2nd Court of Appeals, By the number 2011/3546 K.
It is understood that the parties had come together and converged on 14.2.2009 after the events in the witness statements.
Pursuant to Article 166 / 1-2 of the Turkish Civil Code; In order to be able to decide on divorce, it must be fixed that the marriage unity is shaken from the base to be expected from the spouses. However, some of the testimonies of the witnessed witnesses are not conducive to the status of being subject to the shaky state of article 166/1 of the Turkish Civil Code, and some of them consist of unexplained and unconvincing statements. In this respect, the case should be rejected in the discretion of the evidence, and the reason for the divorce with insufficient reason to decide the divorce on the grounds of the procedure is against the law, and the file was changed back to the file by the end of the re-trial; the court resisted the previous decision.
RESPONSIBLE: Defendant’s representative
THE DECISION OF THE GENERAL ASSEMBLY OF LAW
It was examined by the General Assembly of Law and it was discussed as soon as it was understood that an appeal was made and the papers in the file were read:
The case concerned divorce, material-moral compensation and the request for alimony.
The plaintiff, the defendant’s defective behavior of the parties due to the nature of the marriage unity of the parties argued that the divorce, the birth of the child to be given to the plaintiffs, the plaintiffs to measure and poverty, the child will be born to the child support, the plaintiffs in favor of the material and non-pecuniary compensation was decided.
The court decided to accept the divorce case, the custody of the custodian, the alimony and the material and moral compensation claim to be partially accepted.
On the appeal of the defendant’s deputy, the Special Chamber was overturned with the justification stated in the title section above.
Although it is a process of marriage unity by the local court, the fact that the conflict is related to all the events and perceptions in the process and that the continuation of the cooperation for a while is considered as reconciliation in the deterioration process is not seen as compatible with the normal flow of life, human psychology; on the contrary, in the first negative event experienced in the event of a divorce in the event that the party can not open the case again, such as a case will come to the conclusion of the result, so that the corruption was not observed, the decision was resisted in the previous decision; The defendant’s representative has appealed.
As to the scope of the decisions of disruption and resistance; There are no disputes between the private and the local courts as it is evident from some witness statements that the parties have come together after a series of incidents in the case in the present case as a basis for a divorce.
Dispute; whether the gathering of the parties means that they have forgiven each other in terms of previous events and whether or not a divorce decision can be made on the basis of these events; In addition, it is gathered at the point of the fact that the plaintiffs have been proved whether the events that have shaken the basis of the marriage union have been proved in the period after the meeting.
First of all, it should be noted that if after the events that caused the unity of the marriage unity to reconcile and reunite and start to live together with the will to continue the unity of marriage, this means that they donated each other and the decision to divorce on the grounds of pre-reconciliation cannot be granted. 21.03.2007, 2007 / 2-156 E., 2007/157 of the numbered K.). If, after the reconciliation, it has been claimed that there are incidents that will cause the unity of the marriage unity between the parties, this should be proved further.
In the concrete case:
The fact that the parties came together after the events referred to as a basis for the divorce is acknowledged by a number of witnesses as well as the court and the private agency.
Since the parties are reuniting and forgiving the past events and revealing their will to continue their marriages, it must be accepted that they have forgiven each other in terms of the events between them.
As such, it is not possible to rely on the events before the parties donated to each other as a reason for divorce and for the same reason a divorce decision is not possible.
On the other hand, according to the witness statements and the scope of the file, the existence of an incident was not proven in the period following the parties’ giving up and forgiving each other.
It is therefore necessary to comply with the decision of the Special Chamber of Appeal adopted by the General Assembly of Law with the additional reasons explained above, whereas it is unlawful and unlawful to resist in the previous decision.
Therefore, the decision to resist should be disrupted.
CONCLUSION: The decision to resist the decision of the defendant with the approval of the decision of the Special Chamber and the reasons shown above for the reasons shown above 6217 No. 30 of the Law No. 6100 Law of Civil Procedure, which is applied with the law of “Civilian Law No. 3” No. 1086 of the Law of Civil Procedure. In accordance with the clause of the matter, upon request, the appeal is returned to the investor, the decision was made on 30.11.2011 by the majority of votes.
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