Violating the moral independence of the house by giving the house key to his family, changing the house keys, collecting his wife’s belongings and throwing them in the garbage, the wife changed the house key after the actual separation, the wife tried to prevent the husband from entering the house by changing the house key…
T.C.
Court of Cassation
2nd Civil Chamber
2020/2101 E. , 2020/3085 K.
“Case Law Text”
COURT : Sakarya Regional Court of Justice 2nd Civil Chamber
TYPE OF CASE : Mutual Divorce
At the end of the trial of the case between the parties, the judgment given by the civil chamber of the district court of justice, dated and numbered above, was appealed by the plaintiff-cross-defendant woman for the determination of fault, the accepted lawsuit of the man and the rejected compensation claims, and by the defendant-counterclaimant man for the determination of fault, the accepted lawsuit of the woman and the rejected compensation claims, and the documents were read and discussed:
According to the writings in the file, the evidence on which the decision is based and the reasons in accordance with the law, and especially since there is no mistake in the appreciation of the evidence, the appeal objections of the parties are rejected and the judgment, which is in accordance with the procedure and the law, is APPROVED, the approval fee written below is charged to the appellants, the prepaid fee is deducted and 267. 80 TL each. since the appeal application fee has been received in advance, it was decided by majority of votes that there is no need to charge any other fee, the file shall be sent to the court of first instance, and a copy of the decision shall be sent to the relevant regional court of appeal law department. 17.06.2020 (Wed.)
DISSENTING OPINION
It is understood that the plaintiff-counter-defendant woman forgave this fault of the man because the plaintiff-counter-defendant woman left the house and then returned home after the fact that “he violated the moral independence of the house by giving the key of the house to his family”, which was attributed to the defendant-counter-defendant man as a fault by the court. Moreover, it is understood from the witness statements that the defendant-cross-appellant man took back the key of the house from his father. Since this fact cannot be attributed to the man as a fault, the defendant-counterclaimant man will become flawless. Therefore, the decision should be reversed.
I cannot agree with the decision of the majority for the reasons I have explained above.
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T.C.
Court of Cassation
2nd Civil Chamber
2020/6499 E. , 2021/935 K.
“Case Law Text”
COURT : Ankara Regional Court of Justice 2nd Civil Chamber
TYPE OF CASE :Mutual Divorce
At the end of the trial of the case between the parties, the judgment given by the civil chamber of the district court of justice and dated and numbered above was appealed by the plaintiff-counter-defendant man for the woman’s accepted divorce case, fault determination and rejection of non-pecuniary damages; and by the defendant-counter-defendant woman for the man’s accepted divorce case, fault determination and rejection of damages, and the documents were read and discussed accordingly:
1- At the end of the trial of the mutual divorce cases filed by the parties, the court accepted both divorce cases and decided to divorce the parties in accordance with Article 166/1 of the Civil Code, to grant injunction and poverty alimony and pecuniary and non-pecuniary compensation for the benefit of the woman, and to reject the compensation claims of the man. Upon the appeal of this decision by the plaintiff-counter-defendant man in terms of the accepted divorce case of the woman, the fault determination, the alimony and compensation awarded for the benefit of the woman and the rejection of his own compensation claims, the regional court of appeal decided to correct the reasoning of the first instance court decision regarding fault, to reject the defendant-counter-defendant woman’s compensation claims, and to reject the other appeal requests of the man on the merits. The decision rendered by the regional court of appeal was appealed by the parties. The decision rendered by the court of first instance is finalized in the aspects not appealed and the issues not appealed cannot be brought to appeal. In this respect, it is necessary to decide to reject the appeal petition of the defendant-counterclaimant woman against the accepted divorce case of the man.
2- As for the examination of the appellate objections of the defendant-counterclaimant woman regarding the rejection of the fault determination and compensation claims and all appellate objections of the plaintiff-counter defendant man;
a) According to the writings in the file, the evidence on which the decision is based and the reasons in accordance with the law and especially the appreciation of the evidence, all the appellate objections of the plaintiff-counter-defendant man and the appellate objections of the defendant-counter-defendant woman outside the scope of the following subparagraphs are unwarranted.
b) At the first instance court, it was decided to accept the divorce of both parties by accepting the case of both parties by accepting the case of the man as heavy fault and the woman as light fault, and upon the application of the plaintiff-counter-defendant man to the legal remedy of appeal, it was decided that the man “Constantly going to his mother’s house in the evenings after work and making this situation a habit, “not fulfilling the duties of the union by not meeting the needs of the house and leaving the house” and the woman’s defective behaviors such as “changing the keys of the house, collecting the wife’s belongings and throwing them in the garbage”, which were attributed to her as a defect by the court of first instance and became final for her since she did not apply for appeal, and the parties were accepted to be equally defective on the grounds that he said that he does not fulfill his duty as a husband for his wife; In the examination made, it is understood that the fact that the defendant-counterclaimant woman “said that he does not fulfill his duty as a husband for his wife”, which was attributed as fault by the district court, was said in the family environment during the meeting about the problems of the parties in the marriage union, and it was not correct to attribute it to the woman as fault. In that case, it should be accepted that the man is more at fault than the woman in the events that caused the divorce according to the other faulty behaviors determined by the court and realized. Without considering this issue, it was not correct to accept that the parties were equally at fault as a result of an erroneous evaluation and required a reversal.
c) As explained in subparagraph 2/b above, since the plaintiff-counter-defendant man is more at fault in the events that led to the divorce, it is necessary to appreciate an appropriate amount of financial compensation in accordance with Article 174/1 of the Turkish Civil Code for the benefit of the defendant-counter-plaintiff woman whose existing and expected interests are damaged due to the divorce, while the rejection of this request of the woman based on the erroneous fault determination was not deemed correct and required a reversal.
CONCLUSION: The appealed judgment shall be DISMISSED for the reasons shown in subparagraph 1 above, the appeal petition of the defendant-counterclaimant woman against the accepted divorce case of the man shall be DISMISSED for the reasons shown in subparagraphs 2/b and 2/c above, and the other parts of the appealed judgment that are not within the scope of the reversal shall be APPROVED for the reasons shown in subparagraph 2/a above, the following fee shall be charged to İsmail, the advance fee shall be deducted and 267. 80 TL. since the appeal application fee was taken in advance, it was unanimously decided that there is no need to charge any other fee, the advance appeal fee shall be returned to the depositor Nursev upon request, and the file shall be sent to the relevant regional court of appeal law department. 02.02.2021 (Tuesday)
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T.C.
Court of Cassation
2nd Civil Chamber
2020/4997 E. , 2020/6308 K.
“Case Law Text”
COURT : Kayseri Regional Court of Justice 2nd Civil Chamber
TYPE OF CASE : Mutual Divorce
At the end of the trial of the case between the parties, the judgment given by the civil chamber of the district court of justice, dated and numbered above, was appealed by the defendant-counterclaimant woman for the acceptance of the man’s case, the determination of fault, the amount of damages and alimony, and the documents were read and discussed:
Based on the writings in the file, the evidence on which the decision is based and the legal reasons and especially as a result of the trial of the divorce cases filed by the parties, the court of first instance found the parties equally at fault and decided to accept both cases, the decision was accepted by the defendant-counterclaimant woman for the acceptance of the man’s case, the determination of fault, The regional court of justice, although the judgment was appealed only by the defendant-counterclaimant woman, stated that in addition to the defects determined by the first instance court, the woman “came home late from time to time, and in the last separation, the parties separated due to the argument that broke out due to this late arrival, that the woman changed the key to the house after they had actually separated”, that these facts cannot be attributed to the woman as fault since there is no request for appeal by the plaintiff-cross-defendant man, but that the man is still grossly negligent according to the other misconduct accepted and realized by the district court of justice, It was unanimously decided that the appellate objections, which were not found to be relevant, were rejected and the judgment, which is in accordance with the procedure and law, was APPROVED, the following decision and judgment fee and the appeal application fee, which were not initially taken due to the benefit of legal aid, were charged to the defendant-counterclaimant, the file was sent to the court of first instance, and a copy of the decision was sent to the relevant regional court of justice law department. 09.12.2020 (Wed.)
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T.C.
Court of Cassation
2nd Civil Chamber
2019/7281 E. , 2020/3645 K.
“Case Law Text”
COURT :Civil (Family) Court of First Instance
TYPE OF CASE : Mutual Divorce
At the end of the trial of the case between the parties, the judgment given by the local court, dated and numbered above, was appealed by the plaintiff-counter-defendant woman for the re-establishment of the divorce judgment, the determination of fault, the rejected damages; by the defendant-counter-defendant man for the acceptance of the woman’s lawsuit, the determination of fault and the poverty alimony awarded against him; it was requested that the appellate review be held with a hearing; the day set for the hearing was 14. 09.2020, the plaintiff-counter-defendant … attorney for the plaintiff-counter-defendant … and the defendant-counter-defendant … attorney for the counter-appellant … came. After listening to the speeches of those who came, it was deemed appropriate to leave the matter until after the hearing to be examined and decided. Today, all the papers in the file were read and discussed and considered:
Article 141/3 of the Constitution stipulates that “All decisions of all courts shall be reasoned”. Article 297 of the Code of Civil Procedure also specifies in detail the issues to be covered by the decision, and according to subparagraph c of paragraph 1 of this article; in the court decisions, the summary of the claims and defenses of the two parties, the issues they agree and disagree, the evidence collected on the disputed facts, the discussion and evaluation of the evidence, the facts found to be fixed and the conclusion and legal reason drawn from them must be clearly shown. Concrete and clear justification of the decisions is also a requirement of the right to be heard (Art. 27-(l)-c of the CCP).
At the end of the trial of the mutual divorce cases filed by the parties based on the legal ground of the breakdown of the marriage union (Art. 166/1 of the Civil Code), the court decided to accept both cases. In the justification part of the judgment for the acceptance of the divorce cases, “It is understood from the witness statements, party statements, Söke 4th Criminal Court of First Instance file numbered 2015/170 and all other information and documents that there are witness statements, party statements, Söke 4th Criminal Court of First Instance file numbered 2015/170 and all other information and documents that both parties are at fault, that there are constant arguments between the husband and wife, that the defendant husband beat the plaintiff while the marriage union continues, that both parties are rude to each other, that this situation has made the marriage union unbearable for the parties, that both parties are justified in filing a lawsuit in this situation, that both parties are at fault. Indeed, when we look at the events that took place between the parties within the marriage union, it is fixed that the husband inflicted violence on the wife and forced her out of the house. It is also understood from the scope of the file that the wife tried to prevent the husband from entering the house by changing the key to the house, and that the wife did not take much interest in household chores and carried food home from the husband’s workplace. Although there is no witness statement that can be considered impartial within the scope of the file, the Court has accepted the existence of the above-mentioned events. Because, considering both the witness statements and the statements of the parties, it has been fixed that the events in question took place. In this context, our court has determined the fault of the parties by accepting the existence of these actions while attributing fault to the parties. From this point of view, it is obvious that the parties have made the union unsustainable and it is impossible for them to come together again. The cohabitation resulted from the mutual fault of the parties. The parties were rude to each other and caused the dissolution of the union with their other misconduct. Although both parties are at fault, the fact that the husband threw the woman out of the house by applying violence to the woman has been evaluated as a more serious fault by our court”, but in the justification part of the judgment regarding the damages, a contradiction has been created in itself in the justification part of the judgment by writing “Since the parties were found to be equally at fault in the shaking of the marriage union from its foundations in the events that caused the divorce, the request for material and moral compensation of the parties was not accepted by our court and it was decided to reject the requests of the parties in terms of material and moral compensation”. Since this contradiction created in the justification section alone constitutes a reason for reversal, the judgment should be reversed exclusively for this reason.
CONCLUSION: It was unanimously decided that the appealed judgment shall be reversed for the reason shown above, other appellate objections shall not be examined for the time being according to the reason for reversal, the attorney fee of 2.540 TL, which was appreciated for the hearing, shall be taken from Ayşe and given to Mehmet Osman and the attorney fee of 2.540 TL shall be taken from Mehmet Osman and given to Ayşe, the pre-appeal fee shall be returned to the depositors upon request, the way of decision correction shall be open within 15 days from the notification of this decision. 14.09.2020(Mon.)
