Adultery, or extramarital affairs, is one of the most serious breaches of marital trust and is recognized as a specific ground for divorce in Turkish law. Under the Turkish Civil Code (TCC), adultery is defined as a clear violation of the obligation of fidelity that spouses owe to each other. This article delves into the legal grounds for divorce based on adultery in Turkiye, outlining the legal framework, conditions for filing, evidence requirements, and relevant considerations.
We would like to emphasize that the term “adultery” used in this article is not the colloquial term “adultery”. The purpose of this article is not to make a moral reference or evaluation. Adultery is used as it is defined in the TCC and as a technical legal term. The subject of the article is to evaluate the act of adultery as it is defined in the law and the consequences of this act within the legal framework.
1. Legal Definition of Adultery in Turkiye
Adultery, in the legal sense, refers to a spouse engaging in sexual relations with someone other than their partner during the marriage. TCC specifically addresses adultery as grounds for divorce under Article 161. The essence of this provision is that adultery constitutes a serious breach of the marital relationship, undermining the foundation of trust and fidelity that is essential for a marriage to continue.
The act of adultery and its consequences are defined in the law as follows:
TCC article 161:
If one spouse commits adultery, the other spouse may file for divorce.
The spouse who has the right to file a lawsuit has six months from the date of learning the reason for divorce and in any case
Five years after the act of adultery, the right to sue is lost.
The forgiving party has no right of action.
Adultery is considered both a physical and emotional betrayal, with a focus on sexual infidelity. It is important to note that emotional affairs without physical contact do not legally qualify as adultery under Turkish law.
However, emotional and physical intimacy that does not involve sexual intercourse can also be characterized as infidelity and can make a marriage unsustainable. In these cases, it is possible to file for divorce without grounds of adultery.
2. Conditions for Filing a Divorce on the Grounds of Adultery
To file for divorce on the grounds of adultery (cheating divorce), certain legal conditions must be met:
Proof of Sexual Relations: The plaintiff must demonstrate that their spouse engaged in sexual relations with another person. While circumstantial evidence can be used, the standard of proof is relatively high, as adultery is a specific and serious accusation.
Filing Within the Statutory Timeframe: Turkish law imposes a strict time limit for filing for divorce on the grounds of adultery. The innocent spouse must file for divorce within six months of discovering the infidelity. Additionally, the right to file expires five years after the act of adultery occurred, regardless of when it was discovered. Failure to file within these limits forfeits the right to use adultery as grounds for divorce.
Reconciliation: If a spouse forgives or reconciles with the offending spouse after discovering the adultery, they lose the right to file for divorce on these grounds. This forgiveness can be explicit or implied by the couple continuing to live together without addressing the infidelity.
3. Evidence Requirements for Proving Adultery
Adultery is a difficult ground for divorce to prove, as direct evidence of infidelity is often hard to obtain. However, Turkish courts accept a range of evidence to establish that adultery has occurred. Some forms of evidence that can be presented include:
Witness Testimony: Witnesses who observed the spouse engaging in behavior that strongly indicates an affair, such as spending the night with someone of the opposite sex, can provide valuable testimony.
Digital Evidence: Emails, text messages, or social media posts that demonstrate romantic or sexual involvement with a third party can also be used. However, this must be obtained legally, as evidence gained through illegal means (such as hacking) may not be admissible. At this point, we would like to emphasize that the issue of the validity of evidence is a broad one with many exceptions. A separate legal evaluation is required for each case and each evidence.
Photographs and Videos: Photos or videos showing a spouse in compromising situations can also be used as evidence.
Hotel or Travel Records: Receipts from hotels or travel records showing that a spouse was staying with or visiting someone can help support claims of adultery. These records are obtained from hotels and relevant organizations by the court in the case.
Communication Records: The fact that one person has intensive conversations with another person can be evidence of infidelity. Also, the fact that the meetings take place at unusual hours (especially very late hours) may strengthen the suspicion of infidelity. These records can be obtained from GSM operators by the court in the case.
At this point, it should be noted that mere communication does not constitute an act of adultery in the legal sense. In the precedent decisions of the Court of Cassation, intense communication is not considered as an act of adultery. However, it can be considered as an act that undermines trust or it can be used as a secondary means of proof when proving the act of adultery.
4. Legal Consequences of Adultery in Divorce
When adultery is proven in a Turkish court, it can have significant legal consequences during the divorce proceedings. These include:
Fault-Based Divorce: In Turkiye, proving adultery results in a fault-based divorce. This means that the spouse who committed adultery is considered at fault for the dissolution of the marriage. Fault-based divorces can influence the court’s decisions regarding alimony, child custody, and the division of property.
Non-pecuniary compensation: Adultery can impact the financial outcome of the divorce, particularly when it comes to non-pecuniary compensation. The spouse who file the divorce rightfully, may be entitled to higher non-pecuniary compensation payments.
Child Custody: Although adultery alone does not automatically affect child custody, it can influence the court’s judgment if the affair impacted the well-being of the children or the stability of the family. The court will always prioritize the best interests of the child, and if adultery led to neglect or emotional harm, it could affect custody arrangements. The nature of the act of adultery may also be decisive at this point. Some acts may be seen as particularly contrary to the moral fiber of society, and in some cases it is not desirable to grant custody to persons who commit such acts.
Property Division: While Turkish courts generally divide property equitably, the offending spouse’s fault in causing the breakdown of the marriage could be a consideration in how marital assets are split.
TCC 236/2:
In case of divorce due to adultery (…), the judge may decide to reduce or abolish the share of the erring spouse in the residual value in accordance with equity.
As can be seen, as a result of the act of adultery, the party at fault may partially or completely lose his/her rights in the division of property.
5. Important: Litigation Strategy in Case of Adultery
A spouse may think or even know that their partner is cheating on them. However, proving this is not always easy. In such cases, it may be legally risky to base the divorce case solely on the act of adultery. Because in a case filed based on a single act (adultery), if the act of adultery cannot be proven, the case may be lost.
In some cases, in addition to adultery, it is useful to discuss other reasons that undermine the marriage union. It is possible to claim other grounds for divorce in addition to adultery. Thus, even if adultery cannot be proven, it may be possible to win the divorce case by claiming that the marriage union has been shaken.
6. The Effect of Forgiving Adultery on the Case
As seen in the article of the law quoted above, the spouse who forgives cannot later claim for divorce on the grounds of adultery. Forgiveness of adultery is a reason that removes the right of the spouse to file a lawsuit. Forgiveness of adultery can be verbal or written, or it can be understood by the behavior exhibited between the spouses.
For example, the other spouse who returns home after receiving a message saying “I want to continue the marriage, I want you to come back home” even though his/her spouse has cheated on him/her is considered forgiven. Again, situations such as the spouses living together or going on vacation after the act of adultery is known can be considered as forgiveness.
A precedent decision of the Court of Cassation on this issue is as follows:
The lawsuit is exclusively based on adultery. It is understood that the plaintiff obtained (…) the CD containing the video recordings of his wife’s relationship with another woman four years before the date of the lawsuit. After the acquisition of this tape, the marriage union of the parties continued. There is no evidence that the defendant continued his relationship with another woman. The fact that the marriage union continued despite this incident is in the nature of forgiveness. The forgiving party has no right to sue
(Court of Cassation, 2nd Civil Chamber, Decision no: 2010/18684).
7. Alternative Rightful Grounds for a Divorce
What issues or behaviors can be addressed as grounds for a divorce? Please check our “Grounds for Divorce in Turkiye” article.
8. While The Divorce Case Is Pending, Does The Spouse’s Fiduciary Duty Continue?
In Turkiye, divorce proceedings can take a long time and spouses may live together with other people during this process. Are partnerships with third parties during the divorce proceedings considered as a breach of the duty of loyalty? We recommend you to read our “While The Divorce Case Is Pending, Does The Spouse’s Fiduciary Duty Continue?” article on this subject.
9. Methods and Process of a Divorce
For methods and process of a divorce, we recommend you to read our article “Divorce in Turkey: Process, Tips and Consequences”
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