Short answer
Knowing that a person is married and having a relationship with that person does not, by itself, create liability in non-pecuniary damages toward the betrayed spouse. The 6 July 2018 decision of the Court of Cassation Grand General Assembly for the Unification of Case Law, E.2017/5, K.2018/7, adopts this distinction. If the third person also committed an independent act that directly attacks a personality right, the conditions for compensation may be assessed separately.
This question must not be confused with a compensation claim against the unfaithful spouse arising from divorce. The duty of fidelity between spouses and claims based on TMK art. 174 rest on different legal foundations from the third person’s general tort liability.
Who owes the duty of fidelity?
TMK art. 185 regulates the spouses’ duty to remain faithful to each other. The parties to the marital union are the spouses. A third person does not become a party to the same duty arising from the marriage merely by entering into a relationship with one of the spouses.
This distinction is not a denial of the distress felt by the betrayed spouse. Legal liability requires, besides the feeling of harm, the other elements that the law demands. Moral criticism of a course of conduct does not show that a compensation debt toward a particular person arises in every case.
Thus the allegation that “they knew the person was married” does not by itself mean that the general conditions of compensation are complete. Knowledge may explain the relationship and the context of the events; it does not automatically stand in for an independent violation of a personality right.
What did the 2018 unification decision resolve?
The decision removes a divergence of case law on whether the other spouse may claim non-pecuniary damages from a third person who lived with one spouse knowing of the marriage. The outcome is negative for a claim based solely on participation in the betrayal. The decision treats the existence of a different unlawful act separately.
For that reason, the fact that an older decision accepted compensation does not mean the same approach will be applied in a current case. The date of the decision, whether it was given before or after the unification decision, and whether the events truly consisted only of the relationship should be checked.
Dissenting opinions or summaries of earlier decisions in the text must not be presented as the conclusion reached by the assembly. Looking only at a few sentences from a search result can be especially misleading on this point. The reasoning and the operative part should be read together.
Which independent acts may be assessed separately?
Insults by the third person toward the betrayed spouse, disclosure of private information, violation of the home or another direct attack on personality values require a different assessment. In that case the basis of the claim is not merely having a relationship with a married person.
For example, in an allegation that private images of a person were published without consent, the nature of the image, the person who shared it, the scope of access and the unlawfulness are examined. Making the relationship knowable and disseminating the victim’s private data are not the same act.
In every case the act, the damage, causation and the applicable conditions of liability must be shown. An allegation that an independent attack occurred does not mean it has been proved. The context of the words used, the identity of the publication and the reliability of the records also matter.
Is an allegation of intentional harm enough on its own?
TBK art. 49/2 contains a provision on intentionally harming another by an act contrary to morals. This rule is not, however, a general exception that automatically holds every third person who entered a relationship knowing of the marriage liable. The specific act alleged and the intent to cause harm must be particularised.
A personal inference of the kind “they wanted to upset me” must be distinguished from facts that can be proved in law. Stating only that the marriage was known and the relationship continued does not overcome the result of the unification decision. The difference of the events must be shown through legal elements and evidence.
Can compensation be claimed from the unfaithful spouse?
Under TMK art. 174 the spouse who is not at fault, or who is less at fault, and whose existing or expected interests are impaired by the divorce may claim pecuniary damages. If the events that caused the divorce constitute an attack on a personality right, non-pecuniary damages may also arise. Fault and the other conditions are assessed separately.
The addressee of these claims is the other spouse. An independent tort action against a third person and the financial consequences of divorce are different. The existence of more than one dispute around the same events does not mean that all will be resolved in the same court and on the same legal ground.
There is no universal tariff for the amount that may be claimed. The gravity of the events, the parties’ circumstances and equity are assessed. Fixed-sum statements of the kind “if there is betrayal, this much compensation follows” do not replace a reliable assessment of the file.
Is the third person a party to the divorce case?
A divorce case is heard between the spouses. The person alleged to have been in the relationship does not become a defendant in the divorce case merely because of that allegation. Appearing in the evidence or being considered as a witness because of a connection with the events is different from party status.
For a compensation claim based on the third person’s independent tort, the generally competent civil court is as a rule engaged; jurisdiction and venue are determined separately according to the nature of the claim. If the conditions for a criminal complaint exist, that is a separate process. Adultery alone does not form the offence basis of a criminal complaint.
What distinction should be made when preparing evidence?
Evidence showing the existence of the relationship and evidence showing a direct attack by the third person should be filed separately. For example, a photograph taken together concerns the first heading, while an insulting message directed at the person may matter for the second. Each document should be submitted with an indication of which allegation it supports.
Dates, sender details and the context of existing messages and posts should be preserved. Unauthorised access to someone else’s account or disclosure of private data on social media does not automatically become lawful because evidence is needed. Submitting evidence to the court and publishing it to the public are different.
- Define the act put forward as a direct violation of a personality right.
- Separate the evidence of the relationship allegation from that of the independent attack.
- Record the dates of the act and of knowledge.
- Document any health expense or other concrete damage.
- Assess claims to be directed at the spouse and at the third person separately.
Time limits and the choice of application
For tort claims the two-year limitation running from knowledge and the ten-year limitation running from the act under TBK art. 72 are assessed together, where the conditions are met, with any criminal limitation. The one-year period in TMK art. 178 for claims arising from the ending of the divorce is a different rule.
It is not correct to apply the six-month and five-year forfeiture periods in divorce for adultery to every compensation claim in the same way. The time calculation should be made after it is determined against which person, for which act and on which legal ground the application is brought.
Sources and related guides
The principal bases are TMK arts. 174, 178, 185; TBK arts. 49, 58 and 72 and the YİBBGK decision E.2017/5, K.2018/7. The text of the decision is shown below with an accessible copy.