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Beyond imposing mutual rights on the spouses, the marital union also brings with it the heaviest duty of fidelity, which forms the foundation of the institution of the family. So when this bond of trust is damaged by an act of adultery, what protection does the legislator offer the betrayed spouse?
Short answer
Adultery under Article 161 of the Turkish Civil Code (TMK) is a specific and absolute ground for divorce: if adultery is proven, the judge grants the divorce without separately examining whether the marital union has been fundamentally shaken. The action must be brought within 6 months of learning of the adultery and in any event within 5 years of the act; a spouse who has forgiven has no right of action. Because adultery is committed in secret, the Court of Cassation (Yargıtay) considers approximate proof sufficient, meaning strong indications such as a hotel record or bringing a person of the opposite sex into the home at night. The adulterous spouse is regarded as gravely at fault; no poverty maintenance is awarded in his or her favour, and under TMK Art. 236/2 his or her share of the participation claim may be reduced or removed.
This article covers all aspects of divorce actions on the ground of adultery in the light of the Turkish Civil Code and precedent decisions of the Court of Cassation and the regional courts of appeal. The following topics are examined:
Under the Turkish Civil Code (TMK), the right to divorce rests on a ground-based divorce system. Spouses may ask the court to end the marital union only on the basis of one of the grounds expressly set out in the law. In legal doctrine and judicial practice, grounds for divorce are divided into two groups: specific grounds for divorce and general grounds for divorce.
The specific grounds for divorce are listed one by one by the legislator in TMK Art. 161-165 (numerus clausus, a closed list). These are:
Adultery – Article 161: If one of the spouses commits adultery, the other spouse may file for divorce.
Attempt on life, very bad or degrading treatment – Article 162: Either spouse may file for divorce on the ground that the other has made an attempt on his or her life, has treated him or her very badly, or has behaved towards him or her in a seriously degrading manner.
Committing a crime and leading a dishonourable life – Article 163: If one of the spouses commits a disgraceful crime or leads a dishonourable life and, for these reasons, the other spouse cannot be expected to live with him or her, that spouse may file for divorce at any time.
Abandonment – Article 164: Where one of the spouses has left the other with the intention of not fulfilling the obligations arising from the marital union, or does not return to the shared home without just cause, and the separation has lasted at least six months and is continuing, and a warning issued on request by a judge or notary has remained without result, the abandoned spouse may file for divorce. A spouse who forces the other to leave the shared home or prevents the other from returning to the shared home without just cause is also deemed to have abandoned.
Mental illness – Article 165: If one of the spouses is mentally ill and, as a result, shared life becomes unbearable for the other spouse, that spouse may file for divorce, provided that it is established by an official medical board report that the illness cannot be cured.
The general grounds for divorce are regulated in TMK Art. 166: fundamental breakdown of the marital union (severe incompatibility), agreement of the spouses (uncontested divorce) and failure to re-establish shared life (de facto separation).
The key difference between the specific and general grounds for divorce lies in the ease of proof and the judge's discretion. For specific grounds of an absolute nature such as adultery, once it is proven that the act of adultery took place, the judge does not separately examine whether the marital union has become unbearable; he or she must grant the divorce directly. By contrast, for the general ground for divorce (TMK Art. 166/1), the judge assesses whether the events have fundamentally shaken the marital union and whether the spouses can be expected to continue their shared life.
“Adultery (TMK Art. 161), an attempt by one spouse on the other's life, very bad treatment or seriously degrading behaviour (TMK Art. 162), and abandonment as regulated in Article 164 of the Turkish Civil Code are specific grounds for divorce, because, when the legal conditions are met, they result in divorce absolutely, without anything further being required. By accepting these events as specific grounds for divorce, the legislator has accepted from the outset, as a presumption, that they shake the marital union deeply and irreparably. It is because of this presumption that it is not separately examined whether the marital union has been fundamentally shaken, and divorce is granted if the events are proven (unless there has been forgiveness or the right of action has lapsed).” (Court of Cassation, 2nd Civil Chamber, dated 16.09.2014, E. 2014/1592, K. 2014/17457; to the same effect, Court of Cassation, 2nd Civil Chamber, dated 14.05.2015, E. 2014/24287, K. 2015/10320 and dated 21.10.2014, E. 2014/4126, K. 2014/20325)
TMK Art. 161 does not expressly define adultery. According to legal doctrine and precedent decisions of the Court of Cassation, adultery is sexual intercourse, knowingly and willingly (voluntarily), by one of the spouses with a third person of the opposite sex other than his or her spouse while the marital union continues.
The legal basis of adultery is the duty of fidelity set out in TMK Art. 185/3. The duty of fidelity is the concrete expression in family law of the principle of good faith in TMK Art. 2. Adultery is the most serious form of breach of the duty of sexual fidelity.
To rely on the ground of adultery, the nature of the sexual conduct is of great importance.
Since the concept of adultery is not defined in the law, which conduct is and is not considered adultery has been determined by Court of Cassation practice and academic opinion. However, legal doctrine and Court of Cassation practice do not always agree on this matter.
Court of Cassation practice, however, taking into account the difficulty of establishing adultery, has considered situations such as being in a hotel room, or being in another woman's home towards morning without just cause, sufficient for divorce on the ground of adultery.
Court of Cassation, 2nd Civil Chamber, dated 15.10.2024, E. 2023/10074, K. 2024/7351
The defendant wife stated that she met another man in a hotel room and that “there was sexual intimacy not amounting to sexual intercourse, but the act did not reach the level of sexual union”. Despite the defence that the act did not reach the level of full sexual intercourse, the Court of Cassation held that a married woman meeting another man in a hotel room should be accepted as sufficient for the existence of adultery and that divorce should be granted on the ground of adultery (TMK Art. 161).
Court of Cassation, 2nd Civil Chamber, dated 22.06.2022, E. 2022/3400, K. 2022/6175
A man going to another woman's home in the early hours of the morning without a legitimate reason was accepted as a circumstance indicating adultery, even though the moment of sexual intercourse was not directly witnessed, and it was concluded that adultery had been proven.
Court of Cassation, 2nd Civil Chamber, dated 01.02.2010, E. 2008/20278, K. 2010/1423
Talking on the phone with, sending messages to, and getting into the car of another man working at the same workplace do not amount to conduct indicating adultery. Adultery has not been established. The defendant-counterclaimant's divorce action based on the ground of adultery should therefore have been dismissed; ruling as written, on insufficient reasoning, was not correct.
Court of Cassation, 2nd Civil Chamber, dated 09.04.2018, E. 2016/15989, K. 2018/4730
It has not been proven, either conclusively or by strong presumption, that the defendant husband had sexual intercourse with another woman. Although, as also accepted by the court, it is understood that the defendant husband was seen leaving a house and walking in the street with another woman, it cannot be understood from the case file and witness statements that sexual union with another woman took place during the marriage. Therefore, this conduct of the defendant husband is not adultery but is in the nature of “trust-damaging conduct”, and is faulty conduct requiring divorce under TMK Art. 166/1-2. In this case, the divorce action brought on the legal ground of adultery must be dismissed.
Court of Cassation, 2nd Civil Chamber, dated 09.11.2012, E. 2011/17357, K. 2012/26603
“It is understood that the defendant wife's meetings with a person named Beşir after the reconciliation did not reach the stage of adultery and that this conduct remained at the stage of trust-damaging conduct. In this case, whereas the claimant's action brought on the legal ground of adultery regulated in Article 161 of the TMK should have been dismissed, granting it on insufficient reasoning was also incorrect and has required reversal.”
“In view of the documents in the file, the evidence on which the decision is based and the lawful reasons, and in particular since no error is found in the assessment of the evidence, it is decided that the unfounded appeal be dismissed and the judgment, which is in accordance with procedure and law, be upheld…” Dissenting opinion: “The defendant's staying overnight in the home of Halit, whose wife has died, even if to care for this person's mother, indicates adultery. Dismissing the action on insufficient reasoning instead of granting it is not correct.” (Court of Cassation, 2nd Civil Chamber, dated 22.10.2012, E. 2012/5871, K. 2012/25635)
“From the proceedings conducted and the evidence gathered, as also accepted by the court, it is understood that the claimant-counter-defendant wife, while the marriage continued, acted contrary to the duty of fidelity; that she had more than the usual number of telephone calls and messages with a person named ...; that, as also stated by the couple's child heard as a witness, message content indicating that sexual union had taken place came to light; that on some days the wife did not come home and refused to give information about why she did not come home and where she stayed, and also made false statements on this matter, which was clearly expressed in witness statements; and further that she was seen in an intimate manner with the person named ... in venues serving alcohol and that she spoke with the witnesses who saw this in order to conceal it from her husband. In this case, it must be accepted that the defendant-counterclaimant husband has proven his divorce action based on adultery. Accordingly, whereas the defendant-counterclaimant husband's divorce action based on adultery (TMK Art. 161) should have been granted, its dismissal on insufficient reasoning was not correct and has required reversal.” (Court of Cassation, 2nd Civil Chamber, dated 05.06.2018, E. 2017/1870, K. 2018/7294)
Court of Cassation, 2nd Civil Chamber, dated 08.03.2023, E. 2022/10320, K. 2023/900
In a case where the defendant husband talked and met with women on websites sharing pornographic content, made money transfers in dollars to their accounts through these websites, had excessive sexual demands and behaviour, stuck photographs of naked women on the bathroom walls and ordered an inflatable doll, the request for divorce based on adultery was rejected. Taking into account the attack on personality rights and the existing and expected interests that were harmed, the Court of Cassation reversed the decision on the ground that the pecuniary and non-pecuniary compensation awarded in favour of the wife was too low, and upheld it as regards the other grounds of appeal.
For a divorce action on the ground of adultery to be granted, the substantive and legal conditions required by law must be met together:
In a divorce action on the ground of adultery, the procedural rules and the gathering of evidence call for particular care.
The right to bring an action on the ground of adultery lapses 6 months from the date the betrayed spouse learns of the ground for divorce and in any event 5 years after the act of adultery. These periods are not limitation periods but forfeiture periods, and they are taken into account by the judge of his or her own motion at every stage of the proceedings. If the act of adultery has been repeated more than once or is continuing, the forfeiture period starts to run from the date on which the last act of adultery ended.
Since adultery is an act that takes place in secret, the Court of Cassation considers the standard of approximate proof sufficient instead of full proof. Strong indications and presumptions that create in the judge a conscientious conviction that adultery took place are sufficient for a divorce action on the ground of adultery to be granted. The types of evidence that stand out in practice are as follows:
Case law: The Court of Cassation accepts that bringing an unrelated man or woman into the shared home at night while the spouse is not at home or is out of town is, unless based on a legitimate reason, a presumption that adultery took place.
Example decision: Court of Cassation, 2nd Civil Chamber, dated 08.04.2013, E. 2012/22151, K. 2013/9689 – The wife bringing an unrelated man into the shared home at night while her husband was away, and this person being found hiding in the house or in the toilet, shows that adultery has been established. Similarly, the wife being caught with a man hiding half-naked in the bathroom is also a presumption of adultery (Court of Cassation, 2nd Civil Chamber, dated 25.06.2013, E. 2012/16833, K. 2013/17864).
Case law: One spouse staying in the same room with a person of the opposite sex other than his or her spouse in a hotel, guesthouse or short-term rental indicates the existence of adultery.
Example decision: Court of Cassation, 2nd Civil Chamber, dated 03.12.2013, E. 2013/5132, K. 2013/28378 – The defendant meeting another man and staying with him in the same hotel room is sufficient to prove adultery.
Case law: The husband having a child with another woman before the divorce decision becomes final is the most conclusive evidence of adultery. The wife becoming pregnant during a period when the spouses lived apart for a long time or where the husband has been medically determined to be infertile, or the husband having a child outside marriage, are also among the most conclusive evidence of adultery. The appearance of a sexually transmitted disease in a spouse is also an indication of adultery.
Example decision: Court of Cassation, 2nd Civil Chamber, dated 18.03.2024, E. 2023/5375, K. 2024/1862 – The divorce decision granted on the ground of adultery was upheld after it was established by a DNA/Forensic Medicine Institute (ATK) report that the defendant wife had sexual union with another man during the marital union and that a child was born of this relationship.
Similarly, in the decision of the 2nd Civil Chamber of the Court of Cassation dated 10.09.2013, E. 2013/14955, K. 2013/20457:
“It is understood that the defendant-claimant husband began living with another woman before the divorce decision had become final and that he has a child by this woman. In view of these facts, the act of adultery by the defendant-claimant husband has been proven. Whereas the claimant-defendant wife's divorce action based on the ground of adultery (TMK Art. 161) should have been granted, the dismissal of the action was not correct and has required reversal.”
Case law: Plane or bus tickets showing that the defendant spouse went on holiday with a third person, and intimate or obscene photographs that make it certain that sexual intercourse took place, amount to proof of adultery.
Example decision: Court of Cassation, 2nd Civil Chamber, dated 15.10.2018, E. 2016/24076, K. 2018/10959 – Adultery was accepted as having taken place, given that the defendant husband went on holiday with another woman several times in different hotels and there were obscene photographs of them taken together in the same room.
Case law: One spouse, while the marriage continues, leaving the shared home or the spouse and living with someone else in the same house continuously or regularly, in a way that gives the impression of a married couple, is a de facto presumption showing the existence of adultery.
Example decision: Court of Cassation, 2nd Civil Chamber, dated 10.04.2019, E. 2019/97, K. 2019/4376 – It was stated that divorce should be granted on the ground of adultery, given that police inquiries and reports established that the husband was in fact living as husband and wife with another woman at the same address.
Case law: While merely talking on the phone or ordinary messaging is considered trust-damaging conduct, conversation and message content indicating that sexual union took place, or social media posts to that effect, are accepted as proof of adultery.
Example decision: Court of Cassation, 2nd Civil Chamber, dated 05.06.2018, E. 2017/1870, K. 2018/7294 – It was emphasised that the action based on the ground of adultery should be granted, given that the defendant wife had more than the usual number of telephone calls and messages, the witness accounts, and the emergence of message content indicating that sexual union had taken place.
Case law: Criminal cases (violation of the inviolability of the home, etc.) brought on the complaint of the third person's spouse because the defendant spouse was in the third person's home, and police inquiry reports, are assessed as evidence in proving adultery.
Example decision: Court of Cassation, 2nd Civil Chamber, dated 23.10.2018, E. 2017/4249, K. 2018/11761 – Given photographs showing that the defendant husband was in a married woman's home, and that the husband was convicted of the offence of “violation of the inviolability of the home” on the complaint of that woman's husband, it was accepted that the husband had a relationship with another woman and adultery was proven.
Case law: The defendant spouse, while the marriage continues, going on holiday with another woman or man, introducing the third person to his or her social circle as “my spouse”, or having a wedding or religious (imam) marriage with someone else shows that adultery has been proven conclusively or by strong presumption.
Example decision: Court of Cassation, 2nd Civil Chamber, dated 09.10.2018, E. 2016/23892, K. 2018/10867 – Since it was understood that the defendant husband went on holiday with another woman and introduced this woman as his wife in social settings, the divorce action based on adultery was accepted as proven.
Under Article 189/2 of the Code of Civil Procedure (HMK), evidence obtained unlawfully is not taken into account by the court. Messages obtained with spyware, phone tapping without consent and private investigator surveillance that violates the right to privacy are unlawful. For details on this subject, see our article Unlawfully Obtained Evidence and Proof in Divorce Cases.
The Court of Cassation, 2nd Civil Chamber, held in its decision dated 09.04.2018, E. 2016/15763, K. 2018/4706:
“…that the conversations in a social networking site account belonging to the defendant-counterclaimant wife were obtained by spyware, and that these conversations, which constitute unlawful evidence, cannot be taken into account in determining fault…”
By contrast, the Court of Cassation Assembly of Civil Chambers (dated 25.09.2002, E. 2002/2-617, K. 2002/648) stated that notebooks, letters and photographs accessible to the spouses in the shared home are not unlawful evidence if obtained without threat, force or theft:
“First and foremost, the protection of the privacy of life must be the basis. However, the particular features of the concrete case contain exceptions requiring a departure from this general view. If the evidence used has been stolen or obtained by threat or force, there is unlawfulness. Evidence not obtained by unlawful means, on the other hand, cannot be regarded as prohibited evidence. A divorce action is in any case an action concerning people's private lives. If the husband submits to the court as evidence photographs, a notebook or letters belonging to his wife which he came across in the place where they live together, this evidence is assessed as evidence in court since it was not obtained by unlawful means. The wife living in the same house is in a position to know that the husband may come across this evidence. Where the husband comes across a notebook hidden by the wife in a cupboard in the bedroom or under the bed, this place cannot be accepted as a secret place, since it is a place where the spouses carry on their shared life. No one can be deemed to have obtained by unlawful means evidence that he found in a place in his own home.”
TMK Art. 161/3 lays down a clear and definitive rule: “The party who has forgiven has no right of action.” Forgiveness is a legal institution showing that the betrayed spouse has pardoned the adulterous spouse, and it entirely removes the right to bring an action.
Forgiveness is the exercise of a strictly personal right and is a unilateral declaration of will; it does not depend on acceptance by the other party. The law does not prescribe any formal requirement for forgiveness:
In its decision dated 28.12.2011, E. 2011/1886, K. 2011/23841, the Court of Cassation, 2nd Civil Chamber, found that messages sent to the spouse after the divorce action on 08.03.2010, 05.05.2010, 07.05.2010 and 25.06.2010 amounted to forgiveness:
“…since the content of the messages sent to the spouse after the divorce action on 08.03.2010, 05.05.2010, 07.05.2010 and 25.06.2010 amounts to forgiveness, and it is understood that the party who has forgiven has no right of action (TMK Art. 161), the parties' unfounded grounds of appeal are dismissed…”
Living under the same roof merely for the sake of the couple's children, not leaving the home, or meeting the unfaithful spouse to have him or her return home does not amount to forgiveness.
The Court of Cassation, 2nd Civil Chamber, held in its decision dated 11.10.2017, E. 2016/13152, K. 2017/10906:
“For forgiveness to be accepted, there must have been actual conduct and behaviour showing forgiveness, and in addition the party alleging forgiveness must prove it with concrete evidence. From the proceedings conducted and the evidence gathered, it is established by the statements of the parties and witnesses that the parties came together on New Year's Day for their children and that, due to bad weather, the claimant wife and the defendant husband stayed in the same house; this situation is not sufficient to show that the parties came together in order to continue the marital union. In this case, it is not possible to accept that the faulty conduct was forgiven, or at least tolerated.”
The will to forgive must be declared freely, without mistake, fraud, threat or intimidation. Forgiveness applies to acts of adultery that have taken place and become known. Consenting in advance to future adultery is contrary to morality and legally invalid.
If a divorce action on the ground of adultery is granted, serious legal and financial consequences arise for the unfaithful spouse.
A spouse who is not at fault, or is less at fault, and whose existing or expected interests are harmed by the divorce may claim appropriate pecuniary compensation from the other spouse who is at fault. The betrayed spouse becomes entitled to this compensation because he or she is deprived of the economic support provided by the marriage.
The betrayed spouse whose personality rights have been attacked by the act of adultery that caused the divorce, and who has suffered grief, pain and deep distress, may claim non-pecuniary compensation from the spouse at fault. According to decisions of the Court of Cassation Assembly of Civil Chambers, non-pecuniary compensation cannot be awarded for acts of adultery that have been forgiven.
TMK Art. 236/2 introduces an exceptional rule specific to the ground of adultery:
“In the case of divorce on the ground of adultery or attempt on life, the judge may decide that the share of the spouse at fault in the surplus value be reduced or removed in accordance with equity.”
Under normal circumstances, in the regime of participation in acquired property, each spouse has a participation claim to one half (50%) of the surplus value. In divorce on the ground of adultery, however, the judge may reduce or completely remove this 50% share of the adulterous spouse. For general information on the liquidation of the property regime, see our article Division of Property in Divorce.
In practice, it was debated for many years whether the betrayed spouse could bring an action for non-pecuniary compensation in tort under Article 49 of the Turkish Code of Obligations (TBK) against the third party who took part in the act of adultery. In the past, the 4th Civil Chamber and the Assembly of Civil Chambers of the Court of Cassation, in some decisions, accepted that a third party entering into a relationship knowing that the other person was married was an attack on personality rights and awarded compensation.
The uncertainty on this subject was definitively resolved by the decision of the Grand General Assembly for the Unification of Jurisprudence of the Court of Cassation (YİBBGK) dated 06.07.2018, E. 2017/5, K. 2018/7.
Conclusion: Under the unification of jurisprudence decision, the betrayed spouse cannot claim non-pecuniary compensation from the third party who committed adultery with a married person solely on account of that act. However, if the third party has committed an independent tort against the betrayed spouse (insult, violation of the inviolability of the home, disclosure of secrets, or acting with the sole intention of harming that spouse – TBK Art. 49/2), he or she may be held liable for compensation on account of that independent act.
Under TMK Art. 161/2, the right of action lapses 6 months from the date the betrayed spouse learns of the adultery and in any event 5 years after the act of adultery. These periods are forfeiture periods and are taken into account by the judge of his or her own motion. If the adultery was repeated or is continuing, the period runs from the date on which the last act ended.
No. Because adultery is committed in secret, the Court of Cassation considers approximate proof sufficient. Strong indications such as staying together in a hotel room, bringing a person of the opposite sex into the shared home at night while the spouse is away, a child born outside marriage, or messages showing sexual union are sufficient to prove adultery.
Not on its own. Hugging, kissing and flirtatious messaging may, as trust-damaging conduct, be the subject of an action based on TMK Art. 166. However, if the content of the messages shows that sexual union took place, it is accepted as adultery (Court of Cassation, 2nd Civil Chamber, E. 2017/1870, K. 2018/7294).
No. Under TMK Art. 161/3, the party who has forgiven has no right of action. Forgiveness may be express, or it may be implied through conduct such as continuing married life or sending affectionate messages after learning of the adultery. Merely staying under the same roof for the children, however, is not considered forgiveness.
Not solely on account of the act of adultery. According to the decision of the Grand General Assembly for the Unification of Jurisprudence of the Court of Cassation dated 06.07.2018, E. 2017/5, K. 2018/7, the duty of fidelity exists only between the spouses. If the third party has committed a separate tort such as insult or violation of the inviolability of the home, he or she may be held liable for that act.
It may. Under TMK Art. 236/2, in divorce on the ground of adultery, the judge may, in accordance with equity, reduce or completely remove the at-fault spouse's 50% share of the surplus value (participation claim). In addition, since the adulterous spouse is regarded as gravely at fault, no poverty maintenance is awarded in his or her favour.
Adultery is regulated in the Turkish Civil Code as a specific, absolute and fault-based ground for divorce. It gives rise to wide-ranging legal consequences, from proof and forgiveness to compensation and the reduction of the share of surplus value under the property regime.
