General Assembly of Law
“text of jurisprudence”
COURT :Family Court
1. At the end of the trial held between the parties due to the case of “mutual divorce based on the fact that the marriage union was shaken from its foundation”, Eskisehir 3.Dec. The decision made by the Family Court on the adoption of the main and merged case is made by the Supreme Court on the appeal of the plaintiff-the acting defendant of the merged 2. At the end of the examination conducted by the Law Department, it was disrupted, and the Court’s decision to demolish the Private Apartment was resisted.
2. The decision to resist was appealed by the plaintiff-merged defendant’s attorney.
3. Provisional 3 of the Code of Civil Procedure as of the date of the decision to resist by the General Assembly of Law. according to Article 438 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with the Law No. 5236 of 26.09.2004, in its pre-amendment form, it is 438. in accordance with the second paragraph of the article, it was decided that the request of the plaintiff-united defendant women’s deputy for a hearing was rejected because the decisions to resist could not be heard in the appeal review, and the documents in the file were discussed as necessary after the examination.
I. THE TRIAL PROCESS
Plaintiff-A Request from the Acting Defendant of the Merged Defendant:
4. The plaintiff-the deputy of the merged defendant woman filed a lawsuit; The defendant-the merged plaintiff man threatened to kill his client, expelled him from home, pressured his client, stating that the parties requested and sued for divorce,1,000.00 TL measure-poverty alimony and 150.000. 00 TL material and 150.000. 00 TL moral compensation.
Respondent-The Response of the Male Representative of the Merged Claimant:
5. The defendant-the male representative of the merged plaintiff in the response petition; The plaintiff-the merged defendant woman asked her client to return to Kusadasi and live there again, then left the house, her client did not have problems with the plastic surgery she had without her client’s knowledge, the allegations were not true, the case was dismissed for the reasons described, the alimony was settled for TL 1,000.00,otherwise the poverty alimony of TL 1,000. 00 and the alimony was 150,000, 00 TL has requested that financial and moral compensation of 150,000. 00 TL be settled.
The Decision of the Court of First Instance:
6. Eskisehir 3. The decision of the Family Court dated 12.12.2013 and dated 2012/860 E., 2013/884 K. by decision no.; the plaintiff-the merged defendant woman is uncomfortable with the defendant-the merged plaintiff man and wants the family to go to Kusadasi and live there again despite the economic hardship experienced, there is a discussion between the parties due to the sharing of goods, the defendant-the merged plaintiff man makes threatening words to his wife, the parties are decently common in the events that cause divorce and divorce by acceptance of both cases, the parties ‘ compensation claims and the plaintiff-the merged defendant woman’s alimony claims are rejected, the defendant-the merged plaintiff man has a pension of 1,000.00 TL and a rental income of 1,200. 00 TL,but he receives a three-year lease in advance,and after deductions, the remaining pension of 600.00 TL remains, the plaintiff-the merged defendant woman has a loaded asset, the rental income is over 10.000 TL,the defendant-the merged plaintiff man has a monthly measure of 800.00 TL in his favor, taking into account that this situation is also temporary it has been decided that the alimony and the wholesale alimony of TL 20,000. 00 are at the discretion of poverty.
The Decision to Break Up a Private Apartment:
7. Supreme Court 2. Dated 22.09.2014 by the Legal Department and 2014/6826 E., 2014/18019 K. by decision no.;
‘… The provision is appealed by the plaintiff-the attorney of the merged defendant woman in terms of the man’s combined divorce case, the measure ruled in the man’s favor and the poverty alimony, as well as the woman’s rejected compensation and alimony claims;
1-The court accepts that “the marriage union was shaken on the basis that it was not expected of them to lead a common life, and this result was reached with the common flaws of the parties”, and although the divorce was decided by the acceptance of the divorce case of both parties, the defendant-plaintiff husband threatened to “kill” his wife from the investigation and collected evidence, saying “his faith in religion” and profanity to the defendant-plaintiff husband. No defective attitude and behavior of a nature that shakes the marriage union caused by the plaintiff-defendant woman on its basis has been proven. In this case, the combined divorce case filed by the husband should be rejected, while his acceptance with insufficient justification has not been found correct.
2-The defendant-the plaintiff is the husband’s pensioner, and it is clear from the evidence collected that he has a constant and regular income, and also that rental income is available. 169 Of the Turkish Civil Code. according to the article, there is no reason that requires temporary measures to be taken for “subsistence” in favor of the husband. The good financial condition of the plaintiff-defendant woman does not justify the appointment of alimony as a precautionary measure in favor of the husband. It was unanimously decided to appoint alimony measures for the benefit of the husband without taking this issue into account, and his discretion was not correct…’ on the grounds of its deterioration.
The Decision to Resist:
8. Eskisehir 3. The decision of the Family Court dated 26.02.2015 and dated 2015/21 E., 2015/156 K. by decision No. 1 (after the justification contained in the decision before the violation has been included); Since the obligation of maintenance of a man has been eliminated by TMK, a woman can be held responsible for alimony as a man, given the difference between the parties ‘ incomes, there is no failure to appreciate alimony in favor of a man, a plaintiff-a merged defendant avoids joint life by asking a woman to return to Kusadasi from her partner, a defendant-a merged plaintiff man is going through an economically difficult period, while a plaintiff-a merged defendant woman has a deceleration and rhinoplasty surgery that will be considered luxurious, this will also create a defect, the defendant-the merged plaintiff man also made threatening and insulting remarks to his wife, the parties were jointly defective, the divorce case filed by the woman was finalized, there was no place to decide on a divorce, there was no room for the parties to make compensation claims and the plaintiff-the merged defendant woman’s alimony claims,the defendant-the merged plaintiff received 800,00 TL monthly alimony in favor of the man and a wholesale poverty alimony of 20.000, 00 TL a decision has been made to resist on the grounds of discretion.
Appeal of the Decision to Resist:
9. The decision to resist was appealed by the plaintiff-merged defendant’s female attorney within the legal period.
10. 169 Of the Turkish Civil Code in favor of the defendant-merged plaintiff man and the defendant-merged plaintiff man; in a concrete case, whether there is defective behavior of the plaintiff-merged defendant woman and according to the conclusion to be reached here, the defendant-merged plaintiff man must accept the merged divorce case 169 of the Turkish Civil Code in favor of the man. it is collected at the points where the terms of the article are formed or not.
III. THE PRELIMINARY PROBLEM
11. During the negotiations held at the General Assembly of Law, first of all, the issue of whether the decision is a new provision based on a new justification, whether the appeal review should be conducted by the General Assembly of Law or by the Private Department according to the conclusion to be reached here, was discussed as a preliminary issue.
12. As is known, in order to mention the existence of a decision to resist, the court must make a decision within the framework of the evidence before collecting any new evidence inspired by the violation; although it can expand its justification according to its previous decision, it should not change it (429 of the Code of Civil Procedure No. 1086. ).
13. If the court has made a decision based on a new information, document and evidence, or inspired by the distortion, changing its justification, or evaluating it as indicated in the distortion of a matter that it has not previously focused on, and therefore changing the legal fact on which it was based in the justification of its first decision, there can be no mention of the existence of a decision to resist.
14. In a concrete case, in the decision of 12.12.2013 issued before the breakdown; the plaintiff-the merged defendant woman asked the wife to return to Kusadasi again and continue to live there, the defendant-the merged plaintiff man threatened his wife on the grounds that the mutual divorce proceedings were decided to be accepted because the parties were equally defective, but the decision to resist; the plaintiff-the merged defendant woman asked her husband to return to Kusadasi again and continue living there, the family made expenses that could be considered luxury while the family was going through an economically difficult period, and the defendant-the merged plaintiff man threatened his wife and insulted his wife on the grounds that the parties were considered equally flawed.
15. As it can be seen, unlike the previous justification in the decision called resistance, the cases of making expenses that can be considered luxury to the plaintiff-merged defendant woman while the family is going through an economically difficult period and insulting the defendant-merged plaintiff man and his wife have been installed as defects.
16. In the face of these explanations, it has been accepted that the decision on appeal, which the court calls resistance, is not a real decision on resistance in the sense of procedural law and is a new provision since the justification of the previous decision has been changed in terms of defect.
17. In that case, the task of examining this decision on appeal based on the new justification belongs not to the General Assembly of Law, but to the Private Department.
18. Therefore, the file should be sent to the Special Chamber for the consideration of appeals against the new provision.
For the reasons described;
2 Of the file for the examination of the appeals of the plaintiff-merged defendant woman’s deputy against the new provision. 3 Of the Code of Civil Procedure, temporary sending of the file to the General Assembly of Law if the decision correction path is applied, and if not, sending the file directly to the Private Office by the court if the decision correction path is applied. article 440 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. in accordance with the article, the decision was unanimously decided on 16.01.2020, with the possibility of correcting the decision within fifteen days from the date of notification