Compensation in Divorce Proceedings

Material and non-material compensation is determined together under clause 30 (2) (A) of Family Law No 1/1998.

As per clause 30 2(A) of Family (Marriage and Divorce) Law No 1/1998, the Court may decide on the guilty party to pay a compensation to the less guilty party with taking all aspects of the matter into consideration including and not limited to the material status or the expected benefits of the guilty party and the damage done to the personality, physical harm, any damage to the honour of a party the present or future benefits that are damaged due to divorce and the amount effort made during marriage.

According to this clause, the person whose present or future interests will be damaged and who has no or less fault than the other party in the events that bring the divorce may claim compensation. The main factor for a successful compensation claim is the unjust suffering of the party who has no or less attributable fault than his/her spouse in the matters that cause divorce or whose personal rights are under attacked.

There are certain conditions in order to be entitled to compensation in divorce cases. As there is no legal ground in the claimed material compensation, it will be impossible to be awarded any compensation. The conditions for being entitled to compensation in divorce cases can be listed as follows:

• The party claiming compensation in divorce cases with no fault or less fault than his/her spouse in the event that brought divorce.

• The personality and honour of the party with no or less fault is damaged. The incidents that caused the divorce should have damaged the personal rights of the spouse with no or less fault.

Personal rights of an innocent spouse will be deemed to be damaged may be determined regarding the importance of the incidents that caused divorce and the level of grief and distress that the faultless spouse felt.

However, it should be especially noted that being faultless is not a condition for claiming compensation in divorce cases. The party with less fault than the other party (their spouse) may also claim compensation.

What Does It Mean for the Defendant to be “at fault”?

Being at fault is one of the most important factors in determining the amount of compensation to be claimed.The right to maintenance payment (financial support that one spouse pays to the other) or how the Court divides marital property is also affected by this factor. To obtain a fault-based divorce, one will have to prove to the Court that the other spouse acted in certain wrongful manner.

The criteria that the "defendant must be at fault" is a necessary condition for claiming compensation in divorce cases. The Court cannot rule the defendant to pay compensation if the defendant has no attributable fault. For example, in a divorce case in which the defendant has a loss of sanity, the defendant’s mental situation does not make him/her guilty. If the incident that brought divorce is as a result of the mental illness of the defendant, the defendant cannot be regarded as guilty.

Damage to the Personal Rights of the Person Claiming Compensation

In divorce cases, compensation may be claimed as a result of damage to personal rights.

In order to grant compensation, the Court will evaluate how the personal rights of the spouse requesting compensation are harmed as well as their level of grief in the events that caused the divorce. For example, the Court will evaluate events that led to pain, health problems, and negativities in social surroundings of the spouse suffered as a result of the fault of the other party. To clarify the example, it can be said that gossip, health issues caused by grief, pressure from family and others around them attributable to the guilty spouse can all play a role in damaging the personal rights of the spouse who is subject to them.

In summary, the criteria evaluated in deciding on compensation are as follows:

1. Damage to the personality of the spouses/parties;
2. Incidents that cause divorce shall harm the personal rights (personality and honor) of the faultless party;
3. It should be considered that the adaptation of the person to his/her new life and/or remedying his/her personality and honour can take a long time;
4. Current and expected benefits of the spouse claiming compensation must be violated;
5. There is no possibility for the person to remarry;
6. The whole life of one of the spouses has been ruined as a result of the spouse at fault.

The circumstances under which the right of the plaintiff's personality is damaged are determined according to the nature of the events that have caused the divorce and the degree of the sorrow and grief of the claimant.

For example: If in a divorce caused by the fault of one of the spouses, the other spouse was subject to moral suffering, his/her health and nerves are deteriorated as a result, or in the case where one of the spouses suffered a vast sorrow because of certain gossip detrimental to the spouse, it would be necessary to accept the compensation claim right in favour of the said innocent spouse.

• In short, it is meant that fault shall be considered as the fundamental factor under clause 30 (2) (A). For the ruling of compensation, the divorce should be caused by a guilty act of one of the parties.

How is the Compensation Amount Determined in Divorce Cases?

In clause 30 (2) (A) of Family Law, it is stated that the compensation amount should be an appropriately determined by the Court. The legal meaning of this is that the judicial discretion of the Court will have an essential role in determining the compensation. The Court will use its judicial discretion not arbitrarily but righteously. The judge will consider the economic and social status of the parties, the length of the marriage and the fault in divorce and the damage to the personality of the faultless spouse. In determining the compensation, the Court may conclude that no harm has been inflicted on the personality and dignity of the faultless spouse, and may only determine compensation by taking into account its current and expected interests, or vice versa, or may conclude that there is no material loss or damage to his /her personality, or may conclude that both are damaged.