According to Article 161 of the Turkish Civil Code; if one of the spouses commits adultery, the other spouse can file a divorce case. Filing the said case is subject to statute of limitations. Accordingly, the right to file a case is voided within six months of the spouse having the right to file a case learning the reason for the divorce and in any case five years after the act of adultery. In addition, the Law also stipulates that the forgiving party does not have the right to file a case.

A divorce case due to adultery depends on the existence of certain conditions. The first of these conditions is the existence of a legally valid marriage. For example, if sexual intercourse is established with a third person during the engagement period or in relationships lived together without the union of marriage, since there is no legally valid marriage, it is not possible to file a divorce case due to adultery. The second condition for filing a divorce case due to adultery is that one of the spouses has sexual intercourse with a third person during the marriage. There is no certainty in the law regarding the gender of the third person. In its previous decisions, the Court of Cassation ruled that homosexual relations would be subject to a divorce decision due to leading a dishonorable life, but in its new decisions, it has changed its view. In its decision dated 17.01.2017, Merits No. 2016/6730 and Decision No. 2017/565, the Court of Cassation 2nd Civil Chamber approved the decision dated 17/12/2015, Mertis No. 2014/495, Decision No. 2015/844 of the Izmir 16th Family Court, which ruled for divorce on the grounds of adultery regarding the defendant man’s sexual relationship with another man, and ruled that homosexual relations would be subject to a divorce case on the grounds of adultery.[1]

Another condition for filing a divorce case on the grounds of adultery is that the spouse who commits the act of adultery commits this act knowingly and willingly. The spouse must have the power of discernment while committing the act of adultery and must not have lost this power of discernment voluntarily. For example, it cannot be claimed that the spouse who has sexual intercourse with a third person after consuming alcohol or drugs of his own free will is not at fault. However, in cases such as the spouse consuming alcohol or drugs without his knowledge, being sexually assaulted, or being subjected to violence, since it cannot be said that the spouse acted voluntarily, no fault can be attributed to him.[2]

Finally, the spouse who has the right to file a divorce case on the grounds of adultery must file a divorce case on the grounds of adultery within six months and in any case within five years from the date of learning the reason for the divorce. As stated before, these periods are statute of limitations.

In addition, Article 161 of the Turkish Civil Code includes the provision of amnesty as a condition that eliminates the right to file a divorce case. However, the Law does not contain a detailed regulation on the subject. Within this framework, amnesty is not subject to any formality and can be verbal or written. Likewise, amnesty can be done openly or implicitly. In clearer terms, if one of the spouses commits adultery while the marriage continues, there is no legal difference between the other spouse expressing their forgiveness in writing or their behaviors being in this direction.

The 2nd Civil Chamber of the Court of Cassation, in its decision dated 28.12.2011, Merits No. 2011/1886 and Decision No. 2011/23841; When the content of the messages sent by the spouse to the other spouse on different dates was examined, it was understood that the spouse had forgiven the other spouse, so the forgiving party would not have the right to sue, he emphasized that forgiveness could also be expressed through covert actions in the form of amorous conversations, such as expressing love and missing the spouse in the messaging.[3]

In a divorce case based on adultery, the spouse who relies on the fact of adultery must prove the act of adultery, while the defendant spouse who accepts the existence of the act of adultery and claims that the plaintiff spouse has forgiven him/her must prove that the plaintiff has forgiven him/her.[4] The defendant spouse can prove that he/she has been forgiven with all kinds of evidence. The doctrine states that continuing a joint life, not leaving the family home due to children in common, does not necessarily mean forgiveness, and that in addition to the spouses living in the same house, there must also be signs indicating that the other spouse has forgiven him/her, such as continuing to live as husband and wife, sharing photos taken together via social media, continuing their sexual life, and going on trips together.

The Court of Cassation 2nd Civil Chamber, in its decision dated 11.10.2017, Merits No. 2016/13152 and Decision No. 2017/10906, stated that “In order for a pardon to be accepted, an actual attitude and behavior indicating pardon must have taken place, and in addition, the person claiming the pardon must prove this with concrete evidence” and concluded that the fact that the parties to the case came together for their children cannot be accepted as evidence that the cheating party was pardoned.[5]

[1] The Court of Cassation 2nd Civil Chamber, date 17.01.2017, Merits No. 2016/6730 and Decision No. 2017/565.

[2] Dikici Çelik, B., & Önder, M. F. (2023). TÜRK HUKUKUNDA ZİNA SEBEBİYLE BOŞANMA DAVASI AÇISINDAN AF. Uygulamalı Sosyal Bilimler Ve Güzel Sanatlar Dergisi, 5(12), p. 107.

[3] The 2nd Civil Chamber of the Court of Cassation, in its decision dated 28.12.2011, Merits No. 2011/1886 and Decision No. 2011/23841.

[4] Dikici Çelik, B., & Önder, M. F. (2023). TÜRK HUKUKUNDA ZİNA SEBEBİYLE BOŞANMA DAVASI AÇISINDAN AF. Uygulamalı Sosyal Bilimler Ve Güzel Sanatlar Dergisi, 5(12), p. 109.

[5] The Court of Cassation 2nd Civil Chamber, in its decision dated 11.10.2017, Merits No. 2016/13152 and Decision No. 2017/10906.