While The Divorce Case Is Pending, Does The Spouse’s Fiduciary Duty Continue?

Duty of Loyalty

Suna ŞANSAL

Law Student

1. INTRODUCTION

With marriage, the marriage union is established between the spouses, and the marriage union ends with divorce. The spouse, who has the right to file a divorce case in accordance with Article 167 of the Turkish Civil Code, can request a divorce or separation.

In this article, we will focus on the description of the spousal fiduciary duty (duty of loyalty) and whether this duty will continue throughout the divorce case according to Turkish Law.

 

2. WHAT IS THE SPOUSAL FIDUCIARY DUTY?

The rights and duties of the spouses within the marriage union are regulated in Article 185 of the Turkish Civil Code and its continuation. The duty of loyalty is among these obligations. According to this duty, spouses must remain faithful to each other throughout the marriage union. Loyalty has broad aspects such as fulfilling social and economic responsibilities and maintaining emotional and physical attachment to the spouse. For example, the disclosure of a family secret by one of the spouses or the use of violence against her/his spouse are also considered as a violation of the duty of loyalty.

In order for the said fidelity duty to be deemed to have been violated, the spouse who violated the obligation must be at fault. The defect can be a slight defect or a serious defect. For example, while it is a serious fault for one of the spouses to have sexual intercourse with someone other than their spouse, the breach of the confidentiality duty may be considered as a minor fault. However, it should not be forgotten that each evaluation is made on a concrete case basis, for example, violation of duty of confidentiality can be accepted as a serious fault depending on the nature of the case.

In cases where the fault does not occur and there are reasons for compliance with the law, the duty of loyalty will not be violated. The consent of one of the spouses can be considered as a reason for compliance with the law, however, a separate evaluation should be made according to each concrete case.

Pursuant to the second paragraph of Article 174 of the Turkish Civil Code (TCC), in the event that the marital union is terminated as a result of one of the spouses acting in breach of the duty of loyalty, the party whose personal rights are attacked due to the events leading to the dissolution of the marital union may demand non-pecuniary damages. However, in order for compensation to be awarded, the spouse demanding compensation must be faultless or less faulty than the other spouse. In addition, as it can be understood from the article of the law, in order for compensation to be claimed, the behavior deemed contrary to the duty of loyalty must be in the nature of an attack on the personality rights of the spouse demanding compensation.

In case the act contrary to the obligation of loyalty also constitutes a tort in the context of the law of obligations, non-pecuniary damages can also be claimed based on Article 58 of the Turkish Code of Obligations.

 

3. DUTY OF LOYALTY WHILE DIVORCE PROCEEDINGS ARE PENDING

In case of existence of reasons for divorce regulated in the Turkish Civil Code, spouses may terminate their marriages with an uncontested or contested divorce case. In social life, it is seen that some spouses feel as if they are “divorced” after the divorce case is filed, and they think that their duty of loyalty has come to an end and they have started to behave in this direction.

However, as it can be understood from the explanations on the duty of loyalty above, the duty of loyalty imposed on the spouses with the establishment of the marriage union continues until the marriage ends. In order for this duty to end in terms of both spouses, the marriage union must also end. For this reason, since the opening of the divorce case will not end the marriage union, the spouses have to act in accordance with the fiduciary duty until the divorce decision is finalized while the case continues.

The Supreme Court has also made many decisions in this direction. For example, the Turkish Supreme Court General Assembly of Civil Chambers has included a statement in its decisions numbered 2006/2-778 and 2008/2-698-711 that the duty of loyalty will continue until the divorce decision is finalized.

 

4. EVALUATION OF THE MISINTERPRETED COURT OF CASSATION DECISION

The decision of the 2nd Civil Chamber of the Court of Cassation, numbered 2015/9692, on the duty of loyalty is sometimes misinterpreted. This decision is about the fact that if one of the spouses acts in violation of the loyalty obligation after the date of the divorce case, no provision can be made regarding this event. According to this decision, the duty of loyalty of the spouses does not end after the divorce case is filed, but acts contrary to this duty can only be the subject of a new lawsuit. For example, the spouse who was exposed to cheating during the divorce case may file a new divorce case and request that the existing divorce case be combined with the newly opened divorce case.

In this decision, the Court of Cassation, rather than discussing an duty of loyalty within the meaning of the Turkish Civil Code, discusses how the violation of the duty of loyalty can be claimed within the meaning of the Code of Civil Procedure.

 

5. CONCLUSION

According to Article 185 of the Turkish Civil Code, spouses must remain faithful to each other. Loyalty is not only sexual, but also social, emotional, economic, physical, etc. aspects should be provided. This duty of the spouses disappears only when the marriage union ends, that is, when the divorce decision is finalized. As seen in the Supreme Court decisions, filing a divorce case does not mean the end of this duty. For this reason, the spouses’ duty of loyalty continues during the divorce case. In the event that the case is concluded and the divorce is finalized, the loyalty obligation of the spouses is also automatically lifted.

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