The Distinction Between Adultery and Living Dishonorably

Abstract

The adultery and living dishonorably are two different specific grounds of the divorce, in the Turkish divorce system. Although according to the Turkish Civil Code No.4721, there is not any certain and clear explanation regarding the definition of adultery, the doctrine and jurisprudence define adultery as a ‘sexual relationship with a person who has different sex’.[1] It is possible to say that there is an interpretation gap in question. Also, the Code regulates the homosexual relationships of the spouses’ in the scope of living dishonorably instead of adultery.  The distinction between adultery and living dishonorably is socially and culturally based on continuing inequality against LGBT individuals.

Keywords: adultery, living dishonorably, grounds of divorce, interpretation methods, equality

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Introduction

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Divorce is one of the possibilities of ending a valid marital relationship according to Turkish Civil Code. The grounds of divorce are regulated by the Turkish Civil Code No.4721 as six separated articles. These grounds can be classified from different aspects, such as general and specific causes. Specific causes consist of adultery, plots against life, grave assaults and insults, living dishonorably, desertion, and mental illness. In this article, adultery, and living dishonorably will be examined from different points. Adultery is not defined specifically under the Turkish Civil Code, and the common approach to the definition of adultery, which is developed by jurisprudence and literature, has caused discrimination on gender and sexual orientation in law.

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Adultery and Living Dishonorably in Divorce System

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The adultery is an absolute and specific ground of divorce which is indicated in article 161 of the Turkish Civil Code. Adultery is just specified as a ground of divorce without a certain definition in the Code.[2]There are obligations and responsibilities that are required by the union of marriage, and the adultery is accepted as a violation of the loyalty obligations of the spouses against each other. Therefore adultery can be clarified as one of the spouses has sexual intercourse with a member of the opposite sex knowingly and intentionally during the union of marriage.[3]

Although the content and limits of the definition of adultery are not stated in article 161, the dominant comment is that adultery occurred between different sexes. This dominated comment just conditioned on the sexual relationship between opposite sexes is problematic in terms of the adultery. In that case,  it is possible to say that there is a legal gap in the point of naming the term adultery. This gap can be filled with judicial discretion and the methods of interpretation[4]. According to the objective historical interpretation method, homosexual relationships are excluded from the scope of adultery. Hence, it is not possible to file a divorce lawsuit that is reasoned to adultery because of the homosexual relationship.  Pursuant to the Turkish Civil Code, homosexual relationships are subject to divorce due to living dishonorably.[5]  The divorce on the ground of living dishonorably is indicated at article 163 of the Turkish Civil Code, and it is a relative divorce ground in contrast to adultery.  The distinction between adultery and living dishonorably has caused many problems about the equality of LGBT individuals.  Also, this distinction provides that occurring different results in terms of ending a marital relationship.

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Problematical Situations That Are Occurred  From The Division Between Adultery and Living Dishonorably

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Although homosexuality is not banned in Turkish society, it is perceived as immoral and unnatural behavior, and the perception against homosexuality is reflected in court decisions about the divorce, in Turkey.[6]According to the court practices,  one of the spouses’ homosexual intercourse is accepted as dishonorable and endangering reason for the union of marriage. For instance,  when the reason of divorce based on homosexuality, the court enacted that the right of custody cannot be given to the mother who had homosexual intercourse.[7]Besides that the discriminatory treatment of jurisprudence, there could be other problems that the spouses encounter after the divorce, such as economical and social problems. When the union of marriage ends with the ground of adultery, according to article 236, judicial discretion can be used at law or in equity on the division of matrimonial property[8]. In contrast to adultery, the ground of living dishonorably is not subject to this article. 

To state the ‘opposite sex’ in adultery is a problematic situation, too.  Gender identity has overstepped the limits of the term gender.  Individuals construct and reconstruct their gay, lesbian, bisexual, and transgender identities according to their culture and experiences.[9] In the case that one of the spouses has filed for divorce with the claim of adultery, the claimant will be obliged to prove that the sexual relationship has been carried out by a person of the opposite sex. The problem is that the claimer should prove which gender of the third person, like biological sex or sexual identity that the third person internalized and reflected on society.[10] In accordance with the prevailing opinion, the biological sex of the third person has absolute importance to rule the divorce. Also, according to article 40, there are transsexual real persons who have not undergone gender reassignment surgery, and this makes complicated the determination of the opposite sex.[11]

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Conclusion

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The interpretation gap in the act of adultery has created many problematic and debatable situations in terms of the procedure of divorce cases, such as the burden of proof and determination.  Both to prevent these problems and to develop a more equitable jurisprudence, the fact that a union of marriage which consists of a man and a woman can end because of the sexual intercourse between the same sexes, should be accepted.

Consequently, there will be no need to call these sexual intercourses ‘dishonorable’.

The interpretation gap in the act of adultery should be interpreted according to queer theory with the other interpretation methods.  [12]

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Bibliography

• BAŞARA TURAN, Gamze, 2012, ‘Transsexualism And Its Legal Results Within The Scope Of Turkish Civil Code Article 40’ TBB Dergisi, < tbbdergisi.barobirlik.org.tr/m2013-103-1234>
• DEDE, İsmail, 2016, ‘ Different Approach To Turkish Divorce Law: A Sharp Division Between Adultery and Living Dishonorably’ TBB Dergisi, <http://dergipark.gov.tr/download/article-file/456992.>  
• ENGİN, Ceylan, 2015, ‘LGBT in Turkey: Policies and Experiences’ Social Sciences, <https://www.mdpi.com/2076-0760/4/3/838>  
• TÜZÜNER, Özlem, 2014, ‘Yargıtay Hukuk Dairelerinin Eşcinsellik Hakkında Tutumu’ Güncel Hukuk Dergisi.
• <!–[if supportFields]>BIBLIOGRAPHY<![endif]–>DURAL, Mustafa/ ÖĞÜZ, Tufan/ GÜMÜŞ, Mustafa Alper, 2018, ‘Türk Özel Hukuku Cilt 3 Aile Hukuku’, 11. Edition ,İSTANBUL, FİLİZ KİTABEVİ.
• ÖZUĞUR, Ali İhsan, 2013, ‘Evlilik Birliğini Sona Erdiren Nedenler: Boşanma, Ayrılık ve Evlenmenin İptali Davaları’, 5. Edition, ANKARA, Seçkin Yayıncılık.

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[1]Dede, İsmail (2016) ‘Different Approach to Turkish Divorce Law: A Sharp Division Between Adultery and Living Dishonorably’, <http://dergipark.gov.tr/download/article-file/456992.>  l.a.d 10.12.2018, p.643.

[2]Dural, Mustafa/ Öğüz, Tufan/ Gümüş, Mustafa Alper (2018) Türk Özel Hukuku Cilt 3 Aile Hukuku, 11. Edition, İstanbul, Filiz.

[3]Dokuz, Elif  (2016),  ‘Turkey: The Divorce Case On The Ground Of Adultery’, <http://www.mondaq.com/turkey> l.a.d. 10.12.2018.

[4]Dede, İsmail (2016) ‘Different Approach to Turkish Divorce Law: A Sharp Division Between Adultery and Living Dishonorably’, <http://dergipark.gov.tr/download/article-file/456992.>  l.a.d 10.12.2018

[5]Özuğur, Ali İhsan (2013) Evlilik Birliğini Sona Erdiren Nedenler: Boşanma, Ayrılık ve Evliliğin İptali Davaları, 5. Edition, Ankara, Seçkin, p.573.

[6]Engin, Ceylan (2015), ‘LGBT in Turkey: Policies and Experiences’ Social Sciences  <https://www.mdpi.com/2076-0760/4/3/838>  l.a.d. 10.12.2018. p. 838-839.

[7]Tüzüner, Özlem (2014),  ‘Yargıtay Hukuk Dairelerinin Eşcinsellik Hakkında Tutumu’ Güncel Hukuk, Issue:3 Volume: 123, p.57.

[8]Dural, Öğüz, Gümüş (2018), p.228.

[9]Engin, Ceylan (2015), ‘LGBT in Turkey: Policies and Experiences’ Social Sciences <https://www.mdpi.com/2076-0760/4/3/838>  l.a.d. 10.12.2018 p.841.

[10]Dede, İsmail (2016) ‘Different Approach to Turkish Divorce Law: A Sharp Division Between Adultery and Living Dishonorably’, <http://dergipark.gov.tr/download/article-file/456992.>  l.a.d 10.12.2018, p.653.

[11]Başara Turan, Gamze (2012), ‘Transexualism And Its Legal Results Within The Scope of Turkish Civil Code Article 40’ <tbbdergisi.barobirlik.org.tr/m2013-103-1234> l.a.d. 10.12.2018.

[12]Dede, İsmail (2016) ‘Different Approach to Turkish Divorce Law: A Sharp Division Between Adultery and Living Dishonorably’, <http://dergipark.gov.tr/download/article-file/456992.>  l.a.d 10.12.2018, p. 660.

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