Divorce; 161 md. This is a kind of lawsuit that can be opened with the realization of one of the reasons listed in the law or the agreement of the parties. The reasons for divorce in the law are attributed to the defective behavior of the spouses.

In the marriage union, the spouses have obligations such as loyalty to each other, care obligation, obligation to participate in union expenses.

While the marriage union is continuing, the behaviors such as violence against the other spouse, insults, constant lying, avoiding sexual intercourse, humiliating behavior, adulteration and disagreement in family expenses are considered as defect.

In order to file a divorce, the spouse who filed for divorce does not have to be flawed or flawed. The defective spouse may file for divorce, but if the plaintiff’s defect is severe, the defendant has the right to appeal the filed divorce case, and the defendant spouse must have a little defect. In cases where the defendant is completely flawless, the case of the flawed partner who opened the case must be rejected.

Article 166 of the Turkish Civil Code states that abil if the marital unity is to be shaken to the extent that they cannot be expected from the common life, each of the spouses can open a divorce case Türk. This provision is not considered correct by the judgments of the Supreme Court of Appeals and interpreting it as a fully defective spouse may bring a case and obtain a divorce provision in its favor. Because such a thought is contrary to the fundamental principle of law that no one can obtain a right based on his own action and entirely his own fault.

The decision of the Court of Cassation is as follows;

T.C. SUPREME COURT 2. 2016 / 17889K. 2016 / 13836T. 17/10/2016

ABSTRACT: According to article 166 of Turkish Civil Code no. 4721, it is not necessary to be completely flawed or imperfect in order to ask for divorce, and even more defective parties have the right to sue. Even if the less defective wife opposes the divorce, the determination of this state alone cannot be enough to make a divorce decision. The objection of the less defective spouse should be the abuse of the right and it should be understood that there is no benefit for the spouse and children. According to current events, it is doubtless that the marriage unity was shaken to the extent that it would not be expected from the spouses. However, this result was entirely due to the attitudes and behaviors of the plaintiff, and no flaws were attributable to the defendant. In this case, the reason for the rejection of the request is required, the interpretation of the provisions of the law to decide the divorce by falling into the error is contrary to the procedure and law.

CASE: The lawsuit given by the local court at the end of the reasoning of the case between the parties, the date and the number shown by the defendant male; the defect determination, the pecuniary and non-pecuniary damages in favor of the woman, the poverty alimony, the rejected claims for compensation, the documents were read and considered as necessary:

DECISION: 1-) The court, the defendant man’s wife is a physical offensive and insulting the grounds that the claimant is completely flawed while the claimant’s divorce case was accepted; collected evidence; It is understood that in 2010 the man violated his wife, his conviction was decided and his marriage continued after this act. It is necessary to admit that this act of the defendant man was forgiven by the plaintiff and that he was at least met with tolerance. The existence of another defect that could refer to the respondent man could not be proved. The statements of the applicant woman’s witnesses are based on hearing from the plaintiff. In the last incident, the plaintiff who insulted his wife was completely flawed in the incidents that caused divorce.

Article 166 of the Turkish Civil Code numbered 4721 states that boş if the marital unity is shaken to the extent that they cannot be expected from their joint life, each of the spouses can open a divorce case 47. It is not correct to interpret and evaluate this provision as a fully defective spouse may also prosecute and obtain a divorce in the best interest. Because such a thought is contrary to the fundamental principle of law that no one can obtain a right based on his own action and entirely his own fault. On the other hand, such a thought reveals a divorce phenomenon contrary to our system with unilateral will. The person who wants to obtain the divorce can undermine the unity of the marital unity, without any action and behavior of the other party. So, in accordance with Article 166 of the Turkish Civil Code, it is not necessary to be completely flawed or flawed in order to ask for divorce; Even if the less defective wife opposes the divorce, the determination of this state alone cannot be enough to make a divorce decision. The objection of the less defective spouse should be an abuse of the right, and it should be understood that there is no benefit for the spouse and children to be protected (TMK m. 166/2).

According to current events, it is doubtless that the marriage unity was shaken to the extent that it would not be expected from the spouses. However, this result was entirely due to the attitudes and behaviors of the plaintiff, and no flaws were attributable to the defendant. In this case, the reason for the rejection of the request is required, the interpretation of the provisions of the law to decide the divorce by falling into the error is contrary to the procedure and law. However, because this direction was not appealed, the reason for the distortion was not made.

2-) As shown in paragraph 1 above, the claimant is completely flawed in the cases which caused the divorce. It was not correct to appreciate the poverty alimony (TMK m.175) in favor of the defendant and the compensation for pecuniary and non-pecuniary damages (TMK m.174 / 1-2) in favor of the defendant due to this flawed acceptance of the man and this flawed defect determination of the court.

3-) Turkish Civil Code No: 4721 174/1. Article 186 provides that the spouses will choose the house together, and that they will participate in the expenses of the union with their labor and assets in proportion to their power. It is understood that the spouses seeking financial compensation in the events that caused the divorce from the collected evidence were not more and more imperfect. As a result of divorce, this spouse has at least lost the financial support of the other. In that case, the court should be provided with the appropriate amount of monetary compensation for the benefit of the defendant male, taking into consideration the social and economic conditions and defects of the parties and the principle of fairness (Article 4 of the Turkish Commercial Code, Article 50 and 52 of the Turkish Commercial Code). It was not considered correct to take this direction into consideration.

4-) Turkish Civil Code No. 4721, 174/2. The article argues that the person who had been attacked because of the events that caused the divorce could demand non-pecuniary damages. It is understood that the defendant, who demanded compensation in the incidents that caused the marriage union to be shaken from the collected evidence, was not heavy or even imperfect and that these events constitute an attack on his personal rights. Therefore, the court, the social and economic situation of the parties, the weight of the verb which is the basis of compensation and the rules of equity (TMK m. 4, TBK m. 50, 51, 52, 58) taking into account the appropriate amount of compensation for the benefit of the defendant male must be judged. It was not considered correct to take this direction into consideration.

CONCLUSION: Appealed the provision of the above-mentioned reasons for the reasons shown in paragraphs 3 and 4 above, if requested to return to the deposit of the appeal of the advance proceedings, the decision to correct the decision within 15 days from the notification of this decision, on October 17, 2016 was decided unanimously.