a person who performs compulsory military service and has no income or assets cannot be held liable for alimony
2nd Civil Chamber
Principal Number: 2016/20858
Decision Number: 2018/8072
“Case Law Text”
COURT :Civil (Family) Court of First Instance
TYPE OF CASE : Mutual Divorce
At the end of the trial of the case between the parties, the judgment given by the local court, dated and numbered above, was appealed by the plaintiff-cross-defendant man in terms of the accepted lawsuit of the woman, the determination of fault, her rejected compensation claims, alimony and custody, and by the defendant-counterclaimant woman in terms of the determination of fault, her rejected compensation claims, the amounts of poverty and subsidiary alimony, and the documents were read and discussed accordingly:
1- According to the writings in the file, the evidence on which the decision is based and the reasons in accordance with the law and especially since there is no mistake in the appreciation of the evidence, the appellate objections of the parties other than the scope of the following subparagraphs are unwarranted.
2- Although the court has decided to accept both divorce cases by accepting the parties as equally at fault in the events that caused the divorce; from the trial and the evidence gathered, the plaintiff-counter-defendant man did not provide an independent residence, threatened his wife, physically abused his wife, insulted her, did not allow his wife to meet with his family, kept silent about his family’s intervention in the marriage, threatening and insulting his wife; whereas the defendant-counterclaimant woman insulted her husband, neglected her duties of unity, and remained silent about her family’s interference in the marriage, threats and insults against her husband. According to this situation, it should be accepted that the plaintiff-counter-defendant man is more severely at fault than the defendant-counter-defendant woman in the events that led to the divorce. As such, it was not correct to accept the parties as equally at fault and it required a reversal.
3- The plaintiff-cross-defendant man is seriously negligent in the facts that caused the divorce for the reason shown in the 2nd subparagraph above, and these misconducts also constitute an attack on the personal rights of the woman. The woman has been deprived of her husband’s financial support as a result of the divorce. The conditions of Article 174/1-2 of the Turkish Civil Code have occurred in favor of the woman. It was not correct and required to be reversed to reject the decision as written, while it was necessary to appreciate material and moral compensation for the benefit of the woman within the framework of the social and economic status of the parties, the severity of the defects and the principle of equity.
4- It is understood that the plaintiff-cross-defendant man was conscripted into military service during the trial. A man who is doing his compulsory military service and who has no income and wealth cannot be held responsible for alimony. (12.12.1966 dated 5/11 numbered internal court ruling) While the plaintiff-defendant man should not be held responsible for injunctive alimony during the military service period, it was not correct to award injunctive alimony for the benefit of the defendant-counterclaimant woman and the common child to cover this period.
5- According to the actual social and economic situation of the parties, the nature of the alimony and the economic conditions of the day, the poverty alimony awarded to the defendant-counterclaimant woman is excessive. The court should award a more appropriate amount of alimony by taking into account the principle of equity in Article 4 of the Turkish Civil Code. It is against the procedure and the law to make a written judgment without considering this aspect.
6-According to the actual social and economic situation of the parties, the nature of the alimony, and the economic conditions of the day, the alimony for the benefit of the common child is excessive. The court should award a more appropriate alimony by taking into account the principle of equity in Article 4 of the Turkish Civil Code. It is against the procedure and the law to make a written judgment without considering this aspect.
CONCLUSION: The appealed judgment is DISMISSED for the reasons shown in subparagraphs 2, 3, 4, 5 and 6 above, and the other parts subject to appeal, which are not within the scope of the reversal, are APPROVED for the reason shown in subparagraph 1 above
It was unanimously decided to return the pre-appeal fee to the depositor upon request, and to open the way of correction of the decision within 15 days from the notification of this decision. 26.06.2018 (Tuesday)