T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
E. 2012/2-527 K. 2012/767 T. 7.11.2012
CASE : At the end of the trial between the parties for “divorce, financial, moral compensation and decency” cases; Izmir 13. 01.10.2009 day and 2008/726 E. The adoption of a divorce case by the Family Court was given on the partial acceptance of the alimony case., 2009/819 K. upon the request of the defendant- counterclaim, the Supreme Court 2. The examination of the decision No. 1 by the defendant- counterclaim. 16.05.2011 day and 2010/7774 E of the Law Department., 2011/8480 K. with the announcement of the numbered disruption;
( … 1-legal reasons for the decision with the evidence in the file is based on the posts and especially in the events that lead to divorce his wife gerektirici violent, who insulted “the boy stands, you will I don’t want kids” in the form of words] and the relatives of his wife, “take your child away, saying,” averse to live with the plaintiff-respondent response applying violence to his wife, the husband, who insulted the defendant-the plaintiff is corresponding according to her more heavily flawed; for this reason, the court’s equal flaw acceptance is off the mark, if the husband divorce 166/2 of the Turkish Civil Code. according to the understanding that the divorce decision made due to the acceptance of the husband’s divorce case is correct as a result of the above reason, the appeals of the woman in this direction and the appeals that are outside the scope of the following paragraphs have been found to be out of place.
2- 174/1 of the Turkish Civil Code. article 186 that the flawless or less defective party, whose current or expected interest has been lost due to a divorce, may seek appropriate financial compensation from the defective party. the article provided that the spouses would choose the house together, participate in the expenses of the union with their labor and property at the rate of their power. From the collected evidence, it becomes clear that the spouse who seeks financial compensation for the events that caused the divorce is not more likely and equally defective than the other. As a result of the divorce, this spouse has lost at least the financial support of the other. In that case, the court considers that the parties’ social and economic situations, as well as their defects and the principle of fairness (TMK. Md. 4 P.M. md. 42 and 44 ), taking into account the respondent-corresponding amount of financial compensation should be provided for the benefit of the plaintiff woman. Ignoring this aspect was not considered correct.
3-Article 174/2 of the Turkish Civil Code provides that the party whose personality rights have been attacked because of the events that caused the divorce may seek moral compensation from the defective one. From the collected evidence, it is understood that the defendant-defendant who seeks compensation for the events that caused the marriage union to be shaken from its foundation is not severely or equally defective, and these events constitute an attack on his personal rights. In that case, the court considers that the social and economic situations of the parties, the weight of the act based on compensation and the rules of equity (TMK. Md. 4 P.M. md. 42.43.44.49 ), taking into account the amount of moral compensation appropriate for the benefit of the defendant-versus-plaintiff woman should be determined. Ignoring this aspect was not considered correct… ),
At the end of the retrial, the previous decision was resisted by the court.
After it was understood that the decision to resist was appealed during the examination by the General Assembly of Law and the papers in the file were read, it was discussed as necessary:
DECISION : According to the mutual claims and defenses of the parties, the minutes and evidence in the file, the necessary reasons described in the decision to disrupt, the decision to disrupt the Private Apartment adopted by the General Assembly of Law should be followed, while resisting the previous decision is contrary to procedure and law. Therefore, the decision to resist should be broken.
CONCLUSION : 30 of Law No. 6217 for the reasons described in the decision of the Special Chamber to overturn the decision of the defendant-counterclaim to resist the decision of the deputy plaintiff with the acceptance of appeals by the defendant-counterclaim. article 429 of the Code of Civil Procedure No. 1086, which is applied with the attribution of “TEMPORARY article 3” added to the Code of Civil Procedure No. 6100 by Article 4. It was unanimously decided on 07.11.2012, in accordance with Article 440/1 of the same Law, that the application fee should be refunded to the depositor upon request, and that the decision correction method should be open within 15 days of notification, in accordance with Article 440/1 of the same Law.
