06 Jul Divorce Due To De Facto Separation
T.O
SUPREME
GENERAL ASSEMBLY OF LAW
Date: 28.02.2018 Basis: 2017/2648 Verdict: 2018/23070
The law was reviewed by the General Assembly after it was understood that the decision to resist had been appealed during its time and the documents in the file were read.:
The original case is due to the “actual separation” in Article 166/end of the Turkish Civil Code (TMK) No. 4721, while the case which was merged is 166/1 of the same law. it is related to the request for divorce based on the reason of the “shake up of the marriage union” in the article.
The attorney of the defendant (male), who merged the plaintiff, stated that the parties did not come together after the final decision of the divorce case resulting in rejection and that this period had passed 3 years and requested that their divorce be decided in accordance with article 166/end of the TMK.
The defendant United plaintiff (female) counsel stated that there was severe conflict between the parties for reasons arising from the plaintiff, according to TMK 166/1. he demanded that their divorce be decided in accordance with the clause.
The plaintiff United defendant (male) attorney and the plaintiff United plaintiff (female) attorney argued separately for the dismissal of the cases.
It was decided that the parties did not come together since the divorce decision which resulted in rejection by the Local Court, according to the court decision which was finalized, that the defendant who joined the plaintiff was proved to be flawed, that the man despised the woman, violated her personal rights and thus was shaken from the basis of the marriage union, and that the
The decision on the appeal of the male deputy of the defendant, who joined the plaintiff, was overturned by a majority of votes on the grounds described above by the special Office.
The decision to resist was made on the grounds that the hearing of the witness by the Local Court would not be effective in terms of the outcome for the plaintiff, nor did the plaintiff explain what the witnesses they wanted to hear would testify on; and the decision to resist was made on the grounds that the request of the litigator was met according to the three-year separation process,
The General Assembly of law stated that ” … 297 of the law of Civil Procedure (HMK) No. 6100. as stated in the article, the provisions given on each of the requests, without any mention of the reason in the conclusion of the provision, must be shown under the order number of the obligations and rights imposed on the parties in a way that does not arouse any obvious doubt or hesitation. Since there was a contradiction between the first decision which was overturned and the decision to resist, the decision had to be overturned by the local court without examining the appeal Appeals on the basis of the work….” the decision to overturn by a majority of votes was given.
The decision to resist, which was given by the Local Court in accordance with the decision to overturn the Court of Cassation General Assembly of Law, was appealed by the male deputy of the defendant who joined the plaintiff.
The dispute which comes before the General Assembly of law through resistance is also taken into consideration that the witnesses shown by the man in the divorce case, which is decided to be joined and filed by the woman due to severe disagreements, have not been given up on hearing or whether these witnesses should not be heard by the court.
During the discussions held at the General Assembly of law, prior to the examination of the merits of the work, it was discussed as a preliminary question whether the decision subject to appeal was actually a new provision; therefore, whether the review of Appeals should be made by the General Assembly of law or by the special Office.
As is known, in order to mention the existence of a decision to resist, the court must decide within the framework of the evidence before collecting any new evidence inspired by the decision to defy it; it may extend its justification according to its previous decision, but it must not change it.
In other words, if the court has decided based on new evidence or by changing its rationale by being inspired by corruption, or by considering it as indicated in disturbing a matter that it has not previously considered, there can be no mention of the existence of a decision to resist.
In the concrete case, in the first decision of the court, it was concluded that the defendant man who joined the plaintiff with the earlier case was flawed; the defendant man who joined the plaintiff scorned the plaintiff woman, violated her personal rights and thus was shaken from the foundation of the marriage union; the parties did not meet after the rejection of the divorce case, , for this reason, after stating that the annulment decision was not in place, the defendant who joined the plaintiff after the parties ‘ marriages did not show the necessary care, love and affection to the plaintiff who joined the defendant, according to the report given by the coroner’s office did not have sexual relations with him, although he was not mentally and organically disturbed, and thus by avoiding
According to this case, it should be accepted that the decision on appeal, which the court calls resistance, is not a genuine decision on resistance in the sense of procedural law; it is a new provision based on a new reason that has not been discussed and evaluated in the first decision.
As such, the task of examining the appeal of this new provision is not up to the General Assembly of the law, but to the special Office.
The file should therefore be sent to the special Office for review of Appeals for the new ruling.
Conclusion: for the reasons shown above, the defendant merged with the plaintiff’s attorney to review the appeal Appeals for the new verdict 2. It was decided unanimously on 28.02.2018 that he should be sent to the legal department.
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