How Is Adultery Proven? Is It a Crime, and Which Evidence May Be Used?

Adultery is not a separate offence in the Turkish Penal Code; it is a specific divorce ground under TMK art. 161. An adultery allegation must be proved with lawfully obtained evidence. Direct imagery is not required; depending on the facts, witnesses, records and mutually supporting circumstances are assessed together. Suspicion, messaging or a single record is not enough on its own in every case.

The absence of criminal liability does not mean there are no family-law consequences. Seeking evidence for divorce does not, however, confer a right to access a spouse’s or a third person’s telephone without permission, to conduct covert surveillance or to disseminate private images.

Adultery is assessed as a specific divorce ground where, during the marriage, a spouse voluntarily has sexual intercourse with a third person. Conduct contrary to the duty of fidelity covers a wider field. Emotional closeness, sexually explicit correspondence or meetings that undermine trust are not always of the same legal character.

Failure to prove a course of conduct as adultery does not mean its effect on the marital union is entirely insignificant. Events properly put forward may also be assessed under TMK art. 166. The petition must make clear which ground is based on which facts.

Being subjected to sexual assault cannot be treated as voluntary infidelity on the part of the victim spouse. Non-consensual events and conduct that a spouse carried out of their own will must not be confused. Victimhood does not automatically supply a ground for attributing divorce fault.

As a rule, the spouse who seeks to benefit from an adultery allegation must prove the facts relied on. The court reaches its conviction from the evidence as a whole. The other spouse’s mere denial of the accusation does not of itself remove the claimant’s burden of proof.

In divorce cases the special proof rules of TMK art. 184 also apply. A party’s admission or confession does not bind the judge in the same way as every admission in other civil disputes. Spouses inventing an adultery event that did not in fact occur cannot replace the conditions of consensual divorce.

When submitting evidence the aim should not be merely to increase the number of documents. It should be explained what date, meeting or conduct each document shows. A large number of comments that repeat the same suspicion do not serve the same function as evidence carrying direct knowledge of the events.

Because adultery often takes place in a private setting, direct observation is not available in every case. The court may reach a conclusion by assessing the ordinary course of events and the consistency of the evidence. A fact the witness personally saw or heard must be distinguished from a rumour relayed from someone else.

An allegation of staying together, travel information and other records showing the nature of the relationship may matter on the facts. Hotel registration or a photograph taken together does not, in every circumstance, conclusively show that adultery occurred. Dates, places, persons and contrary explanations form part of the assessment.

It is as important to explain conflicting information as it is for the items of proof to support one another. For example, a travel record relating to a work event may change the force of an interpretation advanced on its own. The outcome of a case cannot be determined in advance on the basis of one type of evidence.

Messages may have evidential value as to the content, timing and parties of a relationship. For that, the account holder, integrity, context and how the record was obtained matter. A single screenshot may give rise to dispute about the true account holder or the completeness of the conversation.

A message sent to a person and a message obtained by unauthorised access to someone else’s account are not subject to the same legal assessment. The public nature of posts does not make every form of data processing and dissemination unlimitedly lawful. The need to submit evidence to the court and disclosure on social media are separate acts.

Existing records should be preserved without alteration, and date and source information should not be lost. Adding text to a screenshot, presenting a truncated conversation as if it were the whole, or creating a fake account in someone’s name undermines the reliability of the evidence and may also give rise to legal liability.

Relevant and necessary records may be requested to be obtained through the court. The request should identify, as far as possible, the person, the period and which event the record is expected to show. Investigating all private-life data over an unlimited time span is not an acceptable request in every case.

Operator call records may contain data on with whom and when contact was made; they do not automatically show the content of a call or of correspondence in a messaging application. The expectation that “if HTS is requested, all WhatsApp messages will come out” is incorrect.

Retention and accessibility of records may also vary. If there is a risk of loss of evidence, a lawful evidence-preservation measure or a request for the relevant records should be considered. Buying another person’s private data from unauthorised persons is not a substitute for requesting records through the court.

HMK art. 189/2 provides that evidence obtained unlawfully cannot be taken into account by the court. Assessment of secret recordings depends on the circumstances of the case; there is no general permission in the form of “there is no privacy between spouses”. Planned and continuous surveillance methods may additionally constitute a violation of private life and of communications.

The recording of a suddenly unfolding event and a pre-arranged surveillance arrangement may not require the same assessment. Exceptional decisions cannot, however, be used to treat all secret recordings as lawful. The legal character of the method should be examined separately before a recording is made.

Under TMK art. 161 the right to sue is forfeited six months after the adultery ground is learned and, in any event, five years after the act. A spouse who has forgiven has no right of action based on this ground. These periods are not calculated automatically from the date of marriage or from the moment suspicion was first felt.

Continuing or repeated acts, different dates of knowledge and allegations of forgiveness require a concrete assessment. Remaining in the same home, economic necessity, childcare or a temporary attempt at reconciliation may carry different meanings. Each course of conduct should not be labelled as conclusive forgiveness on its own.

On a chronology, the date of the act, the date of knowledge and the existing evidence should be shown separately. Alongside divorce, claims concerning maintenance, compensation and children should also be considered. An adultery allegation does not of itself cause loss of custody or the transfer of all property to the other spouse.

The principal bases are TMK arts. 6, 161, 166, 184–185; HMK arts. 189–190 and the Turkish Penal Code No. 5237. This article explains the general approach to types of evidence; it does not promise that a particular record will be admitted.