General Assembly of Law
Principal Number:
Decision number:
“Justice Text”
COURT :Family Court
- At the end of the trial made due to the case of “mutual divorce based on the groundbreaking of the marital union” between the parties, the decision given by the Eskişehir 3rd Family Court regarding the acceptance of the original and consolidated case was overturned at the end of the examination made by the 2nd Civil Chamber of the Supreme Court upon the appeal of the plaintiff-joining defendant’s attorney, The Court resisted the decision to reverse the Special Chamber.
- The decision to resist was appealed by the plaintiff-joining defendant’s attorney.
- In accordance with the second paragraph of Article 438 of the Code of Civil Procedure No. 1086, which has been implemented in accordance with the temporary article 3 of the Civil Procedure Law as of the date of the decision to resist by the General Assembly of Civil Procedure, before the amendment with the Law No. 5236 of 26.09. Since a hearing could not be held in the appeal review, it was decided to reject the request of the plaintiff-defendant woman attorney, and after examining the documents in the file, the necessity was discussed.
I. TRIAL PROCESS
Claimant-Combined Defendant Women’s Attorney Request:
- In the petition of the plaintiff-joined defendant woman’s attorney; Defendant-joined plaintiff stated that the man threatened to kill his client, kicked him out of the house, put pressure on his client, and demanded the divorce of the parties, 1,000,00 TL injunction-poverty support, 150,000,00 TL in pecuniary damages and 150,000,00 TL in moral damages and sued.
Response of the Defendant-Combined Plaintiff’s Male Attorney: - In the reply petition, the defendant-merged plaintiff’s male attorney; The plaintiff-united defendant woman asked her client to return to Kuşadası and live there again, then she left the house, her client did not mind the plastic surgery she had done without her client’s knowledge, the allegations were not true, the case was dismissed for the reasons explained, 1,000,00 TL injunctive alimony was ordered, otherwise 1,000, He demanded 00TL of poverty alimony and 150.000,00TL of pecuniary damages and 150.000,00TL of non-pecuniary damages.
First Instance Court Decision: - With the decision of Eskişehir 3rd Family Court dated 12.12.2013 and numbered 2012/860 E., 2013/884 K.; The plaintiff-joining defendant woman is uncomfortable with the defendant-joining plaintiff man and wants her to go to Kuşadası again and live there despite the economic hardship of the family, there is a dispute between the parties due to the division of property, the defendant-joining plaintiff man has made threatening words to his wife, the parties are going to divorce. Despite the fact that both lawsuits were accepted and divorced due to their shared fault in the events that caused them, the claims of the parties and the alimony demands of the plaintiff-joined defendant woman were rejected, the defendant-merged plaintiff man had a pension of 1,000,00TL and a rental income of 1,200,00TL, but paid the three-year rent in advance. 800 per month in favor of the defendant-merged plaintiff, taking into account the fact that the plaintiff received a pension of 600,00 TL and that after the deductions, the plaintiff-joined defendant woman has a large amount of assets, her rental income is over 10.000 TL, and this situation of the defendant-merged plaintiff man is temporary. With 00TL measure alimony, pay 20.000,00TL poverty alimony wholesale deadly decided.
Special Chamber Ruling Decision: - With the decision of the 2nd Civil Chamber of the Supreme Court dated 22.09.2014 and numbered 2014/6826 E., 2014/18019 K.;
”… The verdict is appealed by the plaintiff-joining defendant’s attorney in terms of the combined divorce case of the man, the measure ruled in favor of the man and the alimony, and the rejected compensation and alimony demands of the woman;
1- Although the court accepted that “the marriage union has been shaken from its foundation to an extent that it is not expected from them to continue a common life, and this result has been reached with the common faults of the parties”, and the divorce case of both parties has been accepted and the parties have decided to divorce, from the investigation and the collected evidence, it has been determined that the defendant-plaintiff husband has It is understood that he threatened his wife with “killing” and cursed his wife “to believe in his religion”. No faulty attitude or behavior could be proven that would shake the basis of the marital union stemming from the plaintiff-defendant woman. In this case, the combined divorce case filed by the husband should be rejected, but it was not accepted due to insufficient justification.
2- It is understood from the collected evidence that the defendant-plaintiff husband is retired, has a permanent and regular income, and also has rental income. In accordance with Article 169 of the Turkish Civil Code, there is no reason to take temporary measures in favor of the husband for his “living”. The good financial situation of the plaintiff-defendant woman does not justify the determination of alimony in favor of the husband. Without taking this matter into consideration, the determination and discretion of the alimony for the benefit of the husband was not correct…” It was unanimously decided to overturn it.
Decision to Resist: - With the decision of Eskişehir 3rd Family Court dated 26.02.2015 and numbered 2015/21 E., 2015/156 K. (after giving the justification in the decision before the annulment); TMK
Since the maintenance obligation of the man and the man is eliminated, the woman can be held responsible for alimony like the man, considering the difference between the incomes of the parties, there is no wrongdoing in estimating the alimony in favor of the man, the plaintiff-united defendant avoids the common life by asking her husband to return to Kuşadası again, the defendant-united While the claimant man was going through a difficult period economically, the plaintiff-joined defendant woman had a facelift and rhinoplasty, which would be considered a luxury, which would cause a defect, the defendant-joined plaintiff man also made threats and insulting words to his wife, the parties were at joint fault, the woman Due to the finalization of the divorce case filed by the CCI, there is no place for a decision to be made in terms of divorce since there is no subject for the merged divorce case, the compensation claims of the parties and the alimony demands of the plaintiff-merging defendant woman are rejected, the defendant-the defendant-merged plaintiff man is paid a monthly alimony of 800.00 TL. It was decided to resist on the grounds of a total of 20.000,00 TL poverty alimony discretion.
Appeal of the Decision to Resist:
- The decision to resist was appealed by the plaintiff-defendant woman’s attorney within the legal period.
II. DISPUTE
- Dispute brought before the General Assembly of Law through resistance; In the concrete case, it is gathered at the points whether the plaintiff-joining defendant woman has faulty behavior and whether the defendant-joining plaintiff man should accept the combined divorce case according to the conclusion to be reached, and whether the conditions of Article 169 of the Turkish Civil Code are met in favor of the defendant-joining plaintiff man.
III. PRELIMINARY QUESTION
During the discussions held in the 11th General Assembly of Law, first of all; It has been discussed as a preliminary question whether the decision is in the nature of a new provision based on a new justification, and whether the appeal examination should be made by the General Assembly of Law or the Special Chamber, according to the conclusion to be reached here.
IV. REASON
- As it is known, in order to be able to talk about the existence of a decision to resist, the court must decide on the basis of the evidence before collecting any new evidence, inspired by the reversal; Even if he can expand his reasoning according to his previous decision, he should not change it (Article 429 of the Code of Civil Procedure No. 1086).
- If the court decides on the basis of new information, documents and evidence, or by changing the reasoning inspired by the reversal or by evaluating an issue that it has not considered before, by changing the legal fact on which it is based in the justification of its first decision, it cannot be mentioned that there is a decision of resistance.
- In the concrete case, in the decision dated 12.12.2013 before the reversal; In the decision to resist, despite the decision to accept the divorce cases filed against each other on the grounds that the plaintiff-joining defendant woman asked her husband to return to Kuşadası and continue to live there, and the defendant-joined plaintiff man threatened her spouse, due to the equal fault of the parties; It has been accepted that the parties are equally at fault on the grounds that the plaintiff-joined defendant woman asked her husband to return to Kusadasi and continue to live there, made luxury expenditures while the family was going through a difficult economic period, and the defendant-joined plaintiff man threatened and insulted his wife. .
- As can be seen, in the decision called resistance, unlike the previous justification, the plaintiff-joined defendant woman was charged with making luxury expenses while the family was going through a difficult economic period, and the defendant-joining plaintiff man insulting his wife as a fault.
- In the face of these explanations, it has been accepted that the appealed decision, which the court called resistance, was not a real decision of resistance in terms of procedural law and that it was in the nature of a new provision since the reason for the previous decision was changed in terms of fault.
- In that case, the duty to review this decision based on the new reasoning on appeal belongs to the Special Chamber, not the General Assembly of Law.
- Therefore, the file should be sent to the Special Chamber for examination of the appeals against the new ruling.
V. CONCLUSION:
For the reasons explained;
The file to be sent to the 2nd LAW OFFICE for the examination of the appeal objections of the plaintiff-united defendant woman’s attorney against the new decision, but the execution of these procedures by the court first because the way of rectification is open. It was unanimously decided to send him to the Chamber on 16.01.2020, with the possibility of rectification within fifteen days from the notification date of the decision, pursuant to Article 440 of the Code of Civil Procedure No. 1086, which is implemented in accordance with the temporary article 3 of the Code of Civil Procedure. .
