Obligation of Loyalty in Family Law and Claim for Material and Non-Pecuniary Compensation in Case of Violation of This Obligation

The fundamental basis of the obligation of fidelity in family law is Article 185/3 of the Turkish Civil Code, regulated in the section titled “General Provisions of Marriage”. According to this provision, spouses must live together, remain loyal to each other and assist each other. It should be noted that the principle of equality between spouses (husband and wife), which dominates the entirety of family law, is also valid for the obligation of fidelity. In other words, the obligation of fidelity applies to both spouses regardless of gender and is equally binding.

The obligation of fidelity between spouses begins with the establishment of the marriage and continues until the marriage ends due to a reason such as annulment, death, or divorce. In addition, a decision of separation or the spouses living de facto separately or filing a divorce case does not eliminate the obligation of fidelity. It should be noted that, although not as clearly regulated as the obligation of fidelity imposed on spouses, the obligation of fidelity is also valid for engaged couples. The obligation of fidelity between engaged couples begins with engagement and turns into an obligation of fidelity between spouses when the engagement ends with marriage. When the engagement ends for a reason other than marriage, the obligation of fidelity between the parties will also end. In addition, the obligation of fidelity between engaged couples has equal validity and binding force between the parties, regardless of gender.

The most important aspect of the obligation of fidelity is sexual fidelity. Sexual fidelity refers to the spouses not having sexual intercourse with anyone other than each other or not having intimacy for this purpose. It should be noted that not every violation of the sexual dimension of the obligation of fidelity can be considered adultery. Adultery, which is regulated as an absolute reason for divorce in Article 161 of the Turkish Civil Code, can be defined as having sexual intercourse with someone of the opposite sex due to the fault of one of the spouses. Contrary to adultery, not only sexual intercourse with the opposite sex but also sexual intercourse between the same sex is considered a violation of the obligation of fidelity. Again, while sexual intercourse between the spouse and a third person is required for adultery; The obligation of fidelity can also be violated through intimacy that does not have the nature of sexual intercourse. In fact, the obligation of fidelity can also be violated through emotional relationships that remain only at the level of emotional intimacy and do not reach a sexual dimension. In addition, spouses must act in a way that will not disrupt the peace and happiness of the marital union in their relationships with third parties. In the decisions of the Court of Cassation, it is considered a violation of the obligation of fidelity that the spouse frequently meets with friends in the evenings and drinks or hangs out in coffee shops, frequently and late at night dinners with a third person, the spouse is recorded with a third person in inappropriate clothing and positions, correspondence with sexual and/or emotional content, one spouse spends almost all of the money he earns on gambling, drinking or similar habits and therefore does not contribute to household expenses, and one spouse acts for the benefit of a third party while disregarding the interests of the other spouse.[1]

The consequences of the breach of the obligation of fidelity must be evaluated separately in terms of the obligations of fidelity between the fiancés and the spouses. The breach of the obligation of fidelity between the fiancés constitutes a just cause for the termination of the engagement contract. The party who breaks off the engagement due to the breach of the obligation of fidelity may claim material and moral compensation from the party who violated the obligation of fidelity (at fault) in accordance with Articles 120 and 121 of the Turkish Civil Code.

The first consequence of the breach of the obligation of fidelity between the spouses is that this breach constitutes a reason for divorce (or separation). If the spouse’s infidelity has reached the level of adultery, the betrayed spouse may file a divorce case on the grounds of adultery in accordance with Article 161 of the Turkish Civil Code. The law stipulates that the right to file a divorce case on the grounds of adultery will lapse after six months from the spouse’s learning of the adultery that is the reason for the divorce and, in any case, after five years from the adultery. Another reason that ends the right to file for divorce due to adultery is the cheated spouse’s forgiveness of the adultery. If one of the spouses violates the obligation of fidelity, there are other ways for a person who wants to get divorced other than filing for divorce due to adultery. Depending on the nature of the behavior that caused the infidelity, a divorce case can be filed for the reasons of attempt on life, very bad or degrading behavior regulated in Article 162 of the Turkish Civil Code or living a life without honor regulated in Article 163 of the Turkish Civil Code. In addition, a divorce case can be filed based on the general and relative grounds for divorce, which is the breakdown of the marital union, regulated in Article 166 of the Turkish Civil Code, based on the violation of the obligation of fidelity. It should be noted that the party who violates the obligation of fidelity is the party who acts at fault within the marital union and the party who violates the obligation of fidelity will suffer the consequences of causing the divorce through his/her fault. Article 174/1 of the Turkish Civil Code. It is regulated in the article that the faulty or less faulty party whose current or expected interests are damaged due to the divorce may request appropriate financial compensation from the faulty party. In other words, one of the consequences of behavior contrary to the obligation of fidelity is that in the event of a divorce due to this behavior, the spouse in breach will be obliged to pay financial compensation to the other party. Indeed, in order for poverty alimony to be ruled according to Article 175 of the Turkish Civil Code, the fault of the party who will become poor due to the divorce should not be more severe than the fault of the other party. Since behavior in the nature of a violation of the obligation of fidelity will constitute faulty behavior, it will be taken into consideration when ruling poverty alimony.[2]

If one of the spouses violates the marital union by acting contrary to the obligation of fidelity, a claim for moral compensation may be made against the spouse who committed the violation. The claim for moral compensation to be made against the spouse in the event of divorce is regulated in Article 174/2 of the Turkish Civil Code. According to the provision, the party whose personal rights have been violated due to the events that caused the divorce may request that an appropriate amount of money be paid as moral compensation from the other party who is at fault. Article 174/2 of the Turkish Civil Code only regulates the situation where the party to whom the compensation claim is made is at fault. Therefore, in order for moral compensation to be awarded, it is not necessary for the person claiming compensation to be faulty, but rather for the defendant to be less at fault.

As can be understood from these explanations, there is no dispute that the person who was cheated on may claim compensation for the moral damage he/she suffered due to the cheating from his/her spouse (or fiancée) who is under the obligation of fidelity. The controversial issue is whether the deceived person can claim non-pecuniary damages from the third party who participated in the deception, either together with the person who violated the duty of loyalty, or without holding the duty of loyalty liable.

The Court of Cassation has a consistent practice regarding compensation claims directed to third parties. Regarding the issue; The Court of Cassation Civil General Assembly, in its decision Dated 24.03.2010, Merits No: 4-129, Decision No: 173, has ruled as follows:

“Relationships with married people have long been considered a crime and the family institution was sought to be protected in this way. The fact that such actions were decriminalized in later legal regulations will not eliminate the immorality and therefore injustice of this action. Because, the fact that an action does not constitute a crime according to the Penal Code and its sanctions are not regulated does not prevent it from being considered immoral or unlawful according to the provisions of the law of obligations.”

…

“The damage that an emotional and sexual relationship established with a man who is a member of such an important family institution, knowing that he is married, or even having a child from him, will inevitably cause to the family institution and its members, and it is inconceivable that the defendant did not foresee this.”[3]

The Court of Cassation 4th Civil Chamber, Merits No: 1646, Decision No: 916 and Dated 24.1.2013, ruled as follows:

“… the fact that the plaintiff did not file a divorce case against his own spouse cannot be considered as an abuse of right. Again, the fact that the plaintiff did not file a moral compensation case against his own spouse does not mean that he has given up his right to demand against the defendant according to the principles of joint and several liability.”[4]

[1]Badur, Emel ve Gamze Turan Başara. “Aile Hukukunda Sadakat yükümlülüğü Ve Ihlalinden Kaynaklanan Manevi Tazminat Istemi”. Ankara Üniversitesi Hukuk Fakültesi Dergisi 65, sy. 1 (Mart 2016): 101-36. https://doi.org/10.1501/Hukfak_0000001807.

[2] Badur, Emel ve Gamze Turan Başara. “Aile Hukukunda Sadakat yükümlülüğü Ve Ihlalinden Kaynaklanan Manevi Tazminat Istemi”. Ankara Üniversitesi Hukuk Fakültesi Dergisi 65, sy. 1 (Mart 2016): 101-36. https://doi.org/10.1501/Hukfak_0000001807.

[3] Supreme Court of Appeals Civil Chamber, Merits No: 4-129, Decision No: 173 and Dated 24.03.2010.

[4] The Court of Cassation 4th Civil Chamber, Merits No: 1646, Decision No: 916 and Dated 24.1.2013.