The Pitfalls of Literal Interpretation, or Is a Human Lifespan Sufficient for a Judgment to Become Final?

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Introduction:

In this article, we will endeavor to evaluate how the concept of the duty of loyalty, encountered in divorce cases, can produce consequences detrimental to individuals when faced with material reality, and to assess these consequences from the perspective of equity.

A. The Concrete Case:

Spouses who de facto separated in 2012 filed for divorce against each other. One of the spouses moved to the United States and never returned to Turkey. The other spouse resides in Turkey. The proceedings lasted until 2020 due to both procedural errors made by the parties and the slowness of the judiciary in Turkey; however, in that year, a new fact was introduced that would conclude the case against the client.

B. Legal Evaluation of the Event:

As a rule, every lawsuit is concluded based on the legal and material facts present at the date it was filed. Therefore, it can be said that this new fact cannot be taken as a basis for the judgment in the pending case and will not produce a consequence against the person. However, there is no obstacle to filing a new lawsuit, consolidating it with the existing case, and presenting evidence regarding this fact.

Moreover, if this fact is based on the allegation that one of the spouses committed adultery...

According to Article 185/3 of the Turkish Civil Code, "Spouses are obliged to live together, remain loyal to one another, and assist each other." This concept, defined as the duty of loyalty, represents the state where the moral bond established between the spouses in the formation of the institution of marriage is brought under an obligation through the act of marriage. Thus, this obligation parallels the principle that "the family is the foundation of society" pursuant to Article 41 of the Constitution. Nevertheless, it is a known fact that the theoretical appearance of the law and its practical application give rise to certain situations contrary to equity.

Let us return to the facts subject to the lawsuit. The spouses de facto separated in 2012; indeed, the North Atlantic Ocean came between them. They no longer live in the same house, nor in the same country. It is evident that this paints a portrait of two people with no possibility of reuniting. There is an individual who has been unable to get divorced for 8 years due to incorrect legal claims put forward by both parties, unproven facts, and the slowness of bureaucracy, and there is no possibility of a settlement between the parties. Now, will this person, due to the duty of loyalty, wait for the court's final judgment to continue their life, or will they start a new family, considering their passing lifespan?

According to the dominant view in doctrine and the practice of the Court of Cassation, the matrimonial union ends with legal finality. Therefore, the spouses must comply with the obligations imposed on them by the law until the matrimonial union ends. The mere filing of a divorce lawsuit does not eliminate the duty of loyalty.

This method of interpretation, based on the principle of protecting the matrimonial union, also manifests itself in Articles 195 and 196 of the Turkish Civil Code, which regulate the state's intervention in the institution of family. The legal order, taking the relationship between the matrimonial union and the institution of family as a basis, has set forth the necessity of the state's intervention from the beginning to the end of a marriage in accordance with Article 41 of the Constitution. The fact that even an invalid marriage cannot end without a judge's decision is an example of this need for intervention.

However, while observing the protection of the matrimonial union and the importance of the family institution, in the face of the courts' caseload and judges who are not fully acquainted with the file performing mere procedural acts by rote, an obligation is also imposed on individuals to spend their entire lives waiting for the conclusion of judicial bureaucracy. Therefore, reinterpreting the obligations introduced regarding marriage law according to the concrete case is also a requirement of equity.

It is contrary to equity that a person who lives with and has a child with another person as soon as the divorce lawsuit is filed, and a de facto separation of nearly 10 years that cannot be finalized in the legal universe but has ended both psychologically and sociologically and lost its significance for the individual and society, are subjected to the same method of interpretation, thereby producing aggravating consequences against the individual, contrary to the benefit intended to be achieved from the duty of loyalty.

C. Conclusion:

In our opinion, evaluating the duty of loyalty in an absolute manner—for instance, failing to interpret it according to the conditions of the concrete case, as in the present lawsuit—means interpreting this mutual obligation to the detriment of one party. For this reason, it must be clearly established whether the cause of divorce is the fact of adultery, which constitutes a presumption of the breakdown of the matrimonial union, or whether another prior act caused the divorce. If institutions and rules are interpreted contrary to their purpose in order to glorify public order or concepts deemed sacred, and if it is forgotten that they were, above all, created for humans, their purpose of existence is obliterated.

Note: The facts subject to the analyses in this section have been fictionalized and anonymized in accordance with the attorney's obligation of confidentiality. None of them can be interpreted or used in the form of a legal opinion for any given case.

Sincerely,

Atty. Deniz HELVACI