Divorce is the termination of the marriage union between the parties by a court decision at the end of the case based on the reasons written in the law. Divorce, which ends the marital union, has several financial consequences. One of the financial consequences of divorce related to the spouses is compensation, and if the conditions are met, material and moral compensation may also be awarded due to divorce. pecuniary and non-pecuniary damages in divorce cases are specifically regulated in Article 174 of the Turkish Civil Code
How to Claim Compensation in Divorce Cases?
Pecuniary and non-pecuniary compensation to be claimed due to divorce can be requested in two ways:
- The parties may request pecuniary and non-pecuniary damages together with the divorce case. In this case, since the compensation claim is part of the divorce judgment, no additional relative legal fee or attorney fee shall be paid.
- A separate compensation lawsuit can be filed according to the fault determined in the divorce case. However, in this case, a relative fee shall be paid and the attorney fee shall be determined proportionally.
1. Pecuniary Compensation Claimable During or After Divorce Cases
Pecuniary compensation in divorce is specifically regulated under Article 174/1 of the Turkish Civil Code. According to this article:
“The faultless or less faulted party whose existing or expected interests are damaged by the divorce may claim an appropriate pecuniary compensation from the faulted party.”
With the end of the union of marriage by the decision of divorce, the economic common life between the spouses also comes to an end. The purpose of the claim for pecuniary compensation as a result of divorce is to compensate the pecuniary damage suffered by the party who is not at fault or less at fault. This regulation aims to ensure that the divorced spouse can maintain the standard of living that he/she had during the marriage after the divorce. In determining the amount of pecuniary compensation, the standard of living of the spouse during the marriage is taken into account. Accordingly, in order for the judge to award pecuniary compensation in favor of the less-faulted or faultless spouse, certain conditions must be met.
Conditions Of Pecuniary Compensation In Divorce
- Divorce must have been granted. According to Article 174 of the TCC, a divorce must have been realized in order to award pecuniary compensation.
- The person must request pecuniary compensation. In order for the judge to award pecuniary compensation as a result of the divorce case, the person must have requested this issue.
- The marital union must be terminated by the divorce decree. If the marital union has been terminated by a decision of absenteeism or death other than the divorce decision, the other party cannot claim pecuniary compensation.
The person who will pay compensation must be at fault in the divorce. The spouse who is ordered to pay financial compensation must be more wrongful during the marriage union. This fault is the kind of defects that may shake the unity of marriage such as violence against the other spouse, violation of the obligation of loyalty, adultery, alcohol and gambling addiction.
However, the spouse claiming pecuniary compensation must be faultless or less faulted than the other spouse. This defect rate is determined by the judge in each case specifically, and it is not possible to accept the financial compensation claim of the spouse with severe or full fault. What is important here is the fault of the claimant in the cause of divorce. In other words, the causal link between the fault of the claimant and the cause of divorce should be evaluated.
- In order to be liable for compensation, there must be a damage. The pecuniary damage to be compensated in divorce is the violation of existing or expected interests. Existing interests are the benefits brought to the parties by the marital union. Examples of existing benefits include the defendant party’s participation in the expenses of the marriage union and assisting his/her spouse, or the fulfillment of the social needs required by the care, housing, health and normal life activity provided by the spouse due to the marriage, or benefiting from the insurance of the defendant spouse. Expected benefits are the benefits that are expected to be realized in the future if the marital union continues but cannot be realized due to divorce. Loss of inheritance right, loss of insurance right due to divorce can be given as examples. In short, we can also call this the return for the support withheld. As it can be seen; “damage due to loss of expected benefit” is broader than “damage” in the Law of Obligations. The amount of pecuniary damages is awarded by evaluating criteria such as the duration of the marriage and the possibility of remarriage of the requesting spouse after the divorce; the economic situation of the parties; the degree and intensity of fault in the divorce; the disappearance of the spouse’s right to benefit from the other spouse’s social security opportunities; the decrease in the standard of living with the divorce; the ability to receive alimony for poverty after the divorce and the liquidation and other increase share from the other spouse’s assets; the general structure and living conditions of the society. On the other hand, it should be noted that the damage in question must have arisen due to the termination of the union of marriage. In other words, there must be a causal link between the divorce and the damage.
2. Non-Pecuniary Compensation Claimable During or After Divorce Cases
Non-pecuniary damages in divorce are specifically regulated under Article 174/2 of the TCC. According to this provision:
“The party whose personal rights have been attacked due to the events that led to the divorce may request the other party who is at fault to pay an appropriate amount of money as non-pecuniary damages.”
Conditions Of Non-Pecuniary Compensation In Divorce
- The person must claim non-pecuniary damages.
- The marriage union must be terminated by a divorce decree. Because if the marriage union has been terminated by the decision of absenteeism or death, the other party cannot claim moral compensation.
- The person who will pay compensation must be at fault in the divorce. The spouse claiming moral damages must be less at fault or faultless compared to the other spouse.
- The personal rights of the spouse claiming moral compensation must have been attacked as a result of the other spouse’s behavior.
- There must be an appropriate causal link between the damage to personal rights and the divorce.
In order for one of the spouses to claim moral damages, he/she must have suffered moral damage due to the violation of his/her personal rights. In order to claim non-pecuniary damages for divorce, the act that causes moral damage and causes divorce must be committed by one of the spouses or one of the spouses must have remained a mere bystander without intervening when he/she had the opportunity to intervene in the act that caused moral damage. In claims for non-pecuniary damages in divorce cases, it should also be evaluated whether the event that caused the divorce also violated the spouse’s personal rights. In some cases, despite the existence of sufficient grounds to decide for divorce, the existence of a violation of personality rights may not be mentioned.
Supreme Court has accepted various behaviors as an attack on personal rights. These include failure to establish a sexual relationship, physical violence by one spouse against the other, infidelity, insults and insulting remarks, behaviors that undermine trust, the spouse living with a third party, the spouse making threats against the other spouse, preventing the spouse from communicating with his/her family, saying that he/she does not want the other spouse, not being interested in the pregnancy of the spouse, insulting the spouse based on his/her ethnic identity, sending insulting phone messages to the spouse, falsely accusing the spouse of theft..
Determination of Compensation Amounts in Divorce Cases
The highest limit to which the court is bound in determining the amount of pecuniary compensation is the amount requested by the parties. In other words, the court cannot award an amount higher than the amount requested by the parties. Factors such as the fault rates in the divorce, the duration of the marriage, the financial situation of the parties, especially the ability of the party who has to pay compensation, are taken into consideration to determine the amount of pecuniary compensation.
The amount of moral compensation is determined according to the economic and social status of the parties, the purchasing power of money, personal rights and especially the severity of the damage to family ties. As in the case of pecuniary compensation, the court is bound by the claims of the parties in moral compensation. The court cannot order the payment of more non-pecuniary damages than requested.
Pursuant to Article 176 of the Turkish Civil Code, pecuniary compensation can be awarded in the form of monthly payments or a single payment. However, it is not possible to pay non-pecuniary damages in monthly payments; they must be paid in one lump sum. If interest is requested, in case of granting non-pecuniary compensation, interest is calculated on the amount determined as of the date of finalization of the decision.
TMK 176/1: “Pecuniary compensation and poverty alimony may be decided to be paid in lump sum or in the form of income according to the requirements of the situation.”
TMK 176/2: “It cannot be decided to pay non-pecuniary compensation in the form of income.”
TMK 176/4: “In cases where the financial situation of the parties changes or fairness requires, it may be decided to increase or decrease the amount.”
What is the Time Period for Requesting Compensation in Divorce?
TCC 178: “The rights of action arising from the termination of marriage due to divorce shall expire one year after the finalization of the divorce judgment.”
Both pecuniary and non-pecuniary damages can be claimed together with the divorce case or with a separate lawsuit. If the claim for compensation is asserted in a separate lawsuit after the divorce case, the compensation lawsuit must be filed within one year from the finalization of the divorce judgment pursuant to Article 178 of the TCC. This is because the rights of action arising from the termination of the marriage due to divorce are time-barred at the end of the one-year period starting from the finalization of the divorce judgment.
Pecuniary and Non-Pecuniary Compensation Claims in Uncontested Divorce Cases
The parties can divorce as contested or uncontested. Spouses who want to divorce uncontestedly apply to the court by preparing a consensual divorce protocol. In this case, the spouses may request pecuniary or non-pecuniary compensation during the uncontested divorce process. However, in the case of divorce by agreement, fault is not required and the judge does not determine fault when awarding compensation. Therefore, if one spouse requests compensation and the other spouse agrees, compensation is granted.