T.C THE SUPREME COURT
\n2. Law Department
\nBase No:2016\/25431
\nDecision No :2018\/11110
\nDate of Decision : 16.10.2018 SUPREME COURT DECISION
\nCOURT :Family Court
\nTYPE OF CASE : Divorce<\/p>\n
At the end of the Deci-sion of the case between the parties, the above date, which is given by the local court
\nand the sentence indicated in the number defendant-plaintiff accepted by the man in the woman’s case, the woman
\nalimony and compensation for poverty, alimony for the benefit of children, and
\nby appealing against the refusal of the claim for non-pecuniary damages; by hearing the appeal review
\nif requested to do so; the defendant-plaintiff who appealed on the 16.10.2018 day set for the hearing … and
\nthe deputy didn’t show up. The other party is the plaintiff-defendant … deputy Av. … he’s here. After the incoming conversation is listened to
\nit was deemed appropriate to leave it until after the hearing for the work to be examined and decided. Today
\nall the papers in the file have been read and discussed and considered as necessary:
\n1-166\/1-2 of the Turkish Civil Code. in order to be able to make a decision on divorce in accordance with the article, marriage
\nit is clear that the union has been shaken from its foundation to such an extent that spouses are not expected to lead a common life
\nyou must have.
\nIn a concrete case, the court finds the defendant-plaintiff male, plaintiff-defendant female to be grossly defective compared to
\nalthough it was agreed that the marriage union had become unbearable and the parties had decided to divorce,
\nfrom the trial and the evidence collected; the hotel record and the file submitted between that date belong Dec
\nfrom the photos, the parties Decisively met in a hotel room while the woman’s divorce proceedings are underway
\nat least that they came, stayed for one night, so that the plaintiff and the defendant woman forgave each other
\nit is understood that he welcomed it with tolerance. Also based on events that have been forgiven or met with leniency
\nno fault can be attributed to the parties and no divorce decision can be made. In the face of this situation that occurred,
\nthe pardoned defendant-plaintiff man has become impeccable. In that case, the case of the plaintiff-defendant woman
\n166\/1-2 of the Turkish Civil Code in terms of. the divorce conditions in the article have not been established.
\nFor the reasons described, it is necessary to decide on the refusal of the woman’s divorce case, while her acceptance is correct
\nalthough it has not happened, however, the defendant-plaintiff has appealed the divorce provision issued in the man’s divorce case
\nsince the divorce provision has been finalized by excluding the shumul, the woman’s case is uncontested
\nit is also seen that it has become. In this case, the plaintiff-defendant is about the merits of the woman’s divorce case
\na decision will not be made. However, due to the fact that the case remains without a subject, a decision on its merits
\nin cases where it is not necessary to be given, the judge shall determine the validity status of the parties on the date the case was filed
\nassesses and assigns the power of attorney fee and trial expenses according to (HMK m. 331\/1). Considering this aspect
\nin order to make a decision, it was necessary to decide on the violation of the provision.
\n2- From the scope of the entire file; defendant-plaintiff man woman’s divorce case is ongoing while another
\naccording to Article 161 of the Turkish Civil Code, on 12.06.2015 after the incident, the subject of the pardon. otherwise it is 166\/1. based on its articles, the unified divorce case is substituted.
\nFrom the point of view of the court’s unified case of the man, it is accepted that the woman’s trust-shaking behavior
\nhowever, the defendant-plaintiff male was found to be severely defective and decided to accept both cases in terms of
\nhas been given. Above 1. as explained in the paragraph, the plaintiff-defendant woman’s divorce proceedings are ongoing
\nhowever, the events that were the subject of this woman’s case were forgiven by the woman. After the incident, the subject of forgiveness
\ndefendant-plaintiff filed a lawsuit based on this case by learning about the existence of confidence-shaking actions of a man and a woman
\nhe proved this claim in the divorce case, as well as in the acceptance of the court. This
\nin the case, in the events that caused the divorce, it is taken into account that the man’s defective actions are forgiven
\nthe plaintiff-defendant woman has become fully defective when it is received. If so, by the court the defendant-plaintiff
\nthe fact that a man is considered to be rather defective than a plaintiff-defendant woman, and this erroneous defect
\ndepending on the determination of material and moral compensation for the benefit of the plaintiff-defendant woman (TMK m.174\/1-2)
\naccording to the poverty alimony (TMK m.175) the judgment of the defendant-plaintiff man is also grossly flawed
\ni bet it is spiritual (TMK m. 174\/2) the decision to reject his request was incorrect and
\nthis is required to be corrected.
\n3- Court custody of Alperen, born in 20006, Zeynep, born in 2008, and …, born in 2010
\nit is left to the plaintiff-defendant mother.
\nIn the custody arrangement; in case of conflict between the child and the benefit of the parents, the benefit of the child
\nrecognition of superiority is necessary. The benefit of the child is; the best in terms of the physical, intellectual and moral aspects of the child
\nin order for it to develop in such a way and for such a development to be realized, it is necessary to provide the child with social, economic and
\ncultural conditions are provided. In determining the superior benefit of the child in these matters;
\nif he had become an adult, what decision would he have made in an incident involving him, for his own benefit
\nif he could, the decision that the person in the decision-making authority for the child should make in the same direction;
\nthat is, the child’s hypothetical thinking will be based on it.
\nCustody is related to public order and the principle of personal investigation applies. Therefore, during the trial
\neven the developments that have occurred need to be taken into account.
\nArticle 12 of the United Nations Convention on the Rights of the Child. according to the Article on the Exercise of Children’s Rights
\n3 and 6 of the relevant European Convention. its articles are considered to have sufficient understanding by domestic law
\nto provide children with the opportunity to express their opinions in cases involving them, and
\nit stipulates that the necessary importance should be given to their opinions. It requires the superior benefit of children
\notherwise, it is possible to make a decision contrary to their opinion. The issue of custody, which concerns children
\nit comes at the very beginning of the topics.
\nThe court decided on the issue of custody of common children of the age of understanding due to their age without recourse to their opinions. Therefore, the education of common children in person or by appeal,
\nby informing about where he wants to live in terms of culture, life opportunities, custody
\nasking the judge for his preference about him (Supreme Court HGK 16.03.2012 date 2011\/2-
\n884 Basis \u2013 Decisions of 2012\/197 and decisions of 22.01.2014 dated 2013\/2-2085 Basis \u2013 Decisions of 2014\/30) and
\nif necessary, re-hire specialists or specialists who are psychologists, pedagogues and social workers (Law No. 4787 m.5) the conditions of housing and living of the common child next to the mother and father are also
\nevaluates the receipt of a social examination report in the content and evaluates all the evidence together,
\nit is determined which of the parents will be in the best interest of the child to stay with him, and according to the result
\nwhile a decision should be made, it was not found to be correct to make a decision in writing with an incomplete review.
\nCONCLUSION: The above-mentioned provision of the appeal (1.), (2.) and (3.) for the reasons shown in the paragraphs
\nPERISH, (3.) according to the reason for the violation in the paragraph, the defendant-plaintiff man is in the best interest of the children
\nthere is no place for the consideration of appeals against the alimony imposed for the time being, the appeal
\nto return the advance fee to the depositor upon request, within 15 days from the notification of this decision
\nthe decision was made unanimously, with the path to correction being clear.<\/p>\n