Divorce Due to Adultery (Cheating)

1. The Concept and Legal Nature of Adultery

“ Adultery”, Law No. 4721 Article 161 of the Turkish Civil Code stipulates that divorce is an absolute and "special" ground. According to this article , if one spouse has sexual intercourse with a member of the opposite sex during the marriage, the other spouse has the right to file for divorce.

TMK 161/1: “If one of the spouses commits adultery, the other spouse may file for divorce.”

Adultery is one of the most serious breaches of the obligation of fidelity in marriage and has been deemed a direct cause for divorce by the lawmaker.

2. Conditions for Accepting Adultery in Divorce Cases

In order to file a divorce case on the grounds of adultery, three basic elements must be present:

• The action must be carried out within the marital union ,

• The actual occurrence of sexual infidelity ,

• The plaintiff must learn about the adultery and file a lawsuit within the prescribed period .

It's important to note that a spouse who discovers the infidelity must file a lawsuit within six months. Furthermore, in any case, the right to file a lawsuit lapses after five years have passed since the adultery. Therefore, adultery is one of the grounds for divorce subject to the "statute of limitations."

TMK 161/2: “ The right to file a lawsuit lapses after six months from the time the spouse who has the right to file a lawsuit learns of the reason for divorce, and in any case, after five years have passed since the act of adultery .”

However, after adultery has occurred within the marriage, the party who forgave the adulterous spouse has no right to file a lawsuit based on this ground. Court of Appeals precedents consider continuing to live together, having sexual intercourse after the act, or ignoring the act of adultery to be forgiven, even if it is not explicitly stated.

TMK 161/3: “The forgiving party has no right to sue.”

3. Element of Proof and Evidence

In divorce cases based on adultery, presenting definitive evidence in court is often difficult in practice. There is no direct definition of adultery in the legislation. However, as mentioned above, the most important element of adultery is that one spouse has engaged in sexual intercourse with another. Proving this, as will be appreciated, is often impossible. Therefore, Supreme Court precedents consider witness testimonies, hotel records, the content of messages and emails, social media correspondence, and photographs or camera footage as significant evidence.

In proving adultery, indirect evidence and presumptions generally come to the fore.

For example, a married person being caught half-naked with another person, a married person spending the night/night in the same place with another person, or going on holiday together constitutes a presumption of adultery.

However, it is mandatory that the evidence be obtained in a lawful manner; otherwise, the court will not take this evidence into consideration (HMK Art. 189).

For example, according to the Supreme Court, while images found in a publicly accessible place or shared by the parties themselves on social media can be considered lawful, images obtained secretly and that would violate the privacy of private life are not accepted as evidence.

4. Compensation and Alimony Rights

The adulterous spouse is deemed at fault in the divorce. In this case, the betrayed party may seek material and moral compensation under Article 174 of the Turkish Civil Code. Additionally, depending on the spouses' social and economic circumstances , alimony or child support may be considered. In Supreme Court practice, the court generally recognizes that the betrayed spouse's personal rights have been severely violated, and moral compensation is awarded.

5. Conclusion

Adultery is regulated in our legislation as one of the most serious specific grounds for divorce. Before filing a lawsuit based on this ground, the timeframe, evidence, and amnesty provisions must be carefully considered. In practice, rather than relying solely on adultery, it is important to file a lawsuit along with other grounds for divorce, depending on the nature of the incident, and to facilitate the legal process with the assistance of a lawyer.