Divorce in the Digital Age: How Social Media Likes Can Breach the Duty of Loyalty

The Boundaries of Fidelity in the Digital Era

The duty of fidelity and loyalty, which forms the foundation of the marital union, has transcended physical boundaries and extended into the digital sphere in the modern age. The Turkish Court of Cassation (Yargıtay) increasingly recognizes behaviours exhibited by spouses on social media platforms (such as Instagram and Facebook) as significant grounds for fault that fundamentally shake and destroy the marital union.

As evidenced in the Court of Cassation ruling presented here, actions by one spouse, such as liking photos of other women and exhibiting trust-damaging behaviour, have been unequivocally accepted as clear fault by the courts, directly impacting the financial outcomes of the divorce.

I. Focus of the Court of Cassation Ruling: Trust-Damaging Digital Conduct

In the case reviewed by the Turkish Court of Cassation, 2nd Civil Chamber, both the First Instance Court and the Regional Court of Justice (Bölge Adliye Mahkemesi - BAM) listed several reasons for finding the husband at fault. Among these grounds is an action central to contemporary legal debate and highly relevant to the public:

"Engaging in trust-damaging behaviour by liking photos belonging to other women..."

This finding demonstrates that even a seemingly simple act on social media (liking, commenting, or following) is considered by the judiciary to be a form of disloyalty and trust-breaching action severe enough to render the continuation of the marriage impossible.

Breach of the Duty of Fidelity

Under the Turkish Civil Code ($TCC$) provisions governing divorce, fidelity is a mandatory duty for the preservation of the marital union. According to the Court of Cassation's consistent jurisprudence, any excessive intimacy with the opposite sex, whether physical or digital, that humiliates the spouse or creates suspicion constitutes a breach of the duty of fidelity.

Social media likes, even if not classified as adultery, constitute a serious act of disrespect towards the spouse and a definite source of distrust, thereby establishing fault.

II. The Degree of Fault: Consequences of Being Deemed Heavily At Fault

The primary and most crucial duty of the judge in a divorce case is to determine the degree of fault of the parties. The determined fault degree directly affects the financial consequences of the divorce (alimony/maintenance and compensation/damages).

In the case that reached the Court of Cassation, the husband was found to be heavily at fault (ağır kusurlu), weighed against the wife's minor faults (such as insults to the husband's father and excessive jealousy). The husband's heavy fault was established by cumulative actions, including neglecting his wife's illness, economic abuse (not providing spending money), and trust-damaging digital conduct.

A. Entitlement to Damages and Maintenance

Pursuant to TCC Articles 174 and $175, the lesser-faulted or faultless spouse who will suffer financial loss as a result of the divorce is entitled to claim damages and maintenance from the opposing party.

As seen in the ruling:

1. Heavily at fault husband: His claims for damages were rejected.

2. Slightly at fault wife: She was granted the right to receive both pecuniary and non-pecuniary damages, as well as yoksulluk nafakası (poverty maintenance).

The Regional Court of Justice, upholding this balance of equity, awarded the wife poverty maintenance, along with 30,000 TL in pecuniary and non-pecuniary damages.

B. The Principle of Equity in Determining Amounts

The ruling demonstrates that when courts determine the amount of damages, they not only consider the degree of fault but also the parties' social and economic statuses (income, living standards) and the purchasing power of money (hakkaniyet ilkesi). The fact that the Regional Court of Justice reduced the damages awarded by the First Instance Court shows the central role of equity review in the judicial process.

III. Key Legal Takeaways

This Court of Cassation ruling sends three clear messages to individuals considering divorce or currently undergoing the process:

1. Every Digital Trace is Evidence: Likes, comments, messages, and other interactions on social media accounts can be used as concrete evidence of trust-damaging behaviour in divorce proceedings and constitute fault.

2. Economic Abuse is Fault: The husband's economic and emotional neglect, such as failing to care for his wife's illness and not providing spending money, was counted among the reasons for heavy fault.

3. The Faulty Party Bears the Cost: The party deemed heavily at fault for the breakdown of the marriage not only forfeits the right to claim damages but is also obligated to satisfy the claims of the less-faulted spouse for damages and poverty maintenance.

It must be noted that divorce cases are complex, and the finding of fault always depends on the specific facts of the case. To prevent loss of rights and to manage your case effectively, it is paramount to seek professional legal advice from a specialist Family Law Attorney to evaluate the details of your situation.

IV. Decision

The Turkish Court of Cassation

2nd Civil Chamber

Case File No.: 2023/190 E.

Decision No.: 2023/2851 K.

Date of Decision: 01.06.2023

JUDGMENT TEXT

COURT OF APPEALS: ... Regional Court of Justice, 2nd Civil Chamber

FILE NO: 2022/2231 E.

DECISION NO: 2022/2210 K.

RULING: Partial acceptance of the appeal and issuing a judgment on the merits.

FIRST INSTANCE COURT: ... 5th Family Court

FILE NO: 2021/493 E.

DECISION NO: 2022/751 K.

Following the proceedings concerning the mutual petitions for divorce between the parties, the First Instance Court ruled for the acceptance of both claims.

Upon the appeal of the decision by the representatives of both parties, the Regional Court of Justice partially allowed the application, partially set aside the judgment of the First Instance Court, and issued a new judgment on the merits concerning those aspects.

The decision of the Regional Court of Justice was subsequently challenged through appeal to the Court of Cassation (temyiz) by the representatives of both parties. Following a preliminary review regarding finality, duration, appeal requirements, and other procedural deficiencies, the petitions for appeal were accepted. After hearing the report prepared by the reporting judge (Tetkik Hâkimi) and reviewing the documents in the file, the following was considered:

I. CLAIM (The Husband’s Case)

The Counsel for the Plaintiff-Defendant Husband summarised his claim in the statement of claim and rejoinder, asserting that the wife was indifferent and distrustful towards his client; that she sent messages to individuals registered in his client’s phone book and social media without his knowledge; that she asked questions intended to humiliate his client; that she displayed excessive and unnecessary jealousy; that she directed accusations and insults toward both his client and his client's father; and that she remained passive against her family's interference in the marital union. He therefore petitioned for the divorce of the parties on the ground of the fundamental breakdown of the marital union, and in his rejoinder, he sought 250,000.00 TL in pecuniary damages and 250,000.00 TL in non-pecuniary damages.

II. DEFENCE (The Wife’s Counter-Claim)

The Counsel for the Defendant-Plaintiff Wife summarised her claims in the consolidated statement of claim and defence, asserting that the husband humiliated and insulted his client; that he failed to provide her with spending money; that he liked photos of other women on social media, thereby breaching the duty of fidelity. She requested the rejection of the main claim (the husband’s), the acceptance of the consolidated claim (her own), the divorce of the parties on the ground of the fundamental breakdown of the marital union, and the award of 5,000.00 TL in tedbir (provisional) and yoksulluk (poverty) maintenance along with legal interest, and 250,000.00 TL in pecuniary damages and 250,000.00 TL in non-pecuniary damages along with legal interest.

III. JUDGMENT OF THE FIRST INSTANCE COURT

The First Instance Court, in its decision with the above-mentioned date and file number, determined the following:

• Wife’s Fault: The wife insulted the husband's father; she wrote an insulting message as a comment on a picture shared by the husband on social media; and she was excessively jealous.

• Husband’s Fault: The husband, despite knowing of the wife's illness before marriage, neglected her treatment after marriage by stating she was expensive; he failed to provide her with spending money; he did not celebrate their wedding anniversary; he searched the rooms of the marital home for another man in a manner constituting a severe insult to the wife; he failed to fulfil the duties of the union; his family called the wife via video call without regard to the time; he insulted the wife; he took the wife's jewellery and failed to return it; and he engaged in trust-damaging behaviour.

• Degree of Fault: The husband was found to be heavily at fault (ağır kusurlu), and the wife was found to be slightly at fault (az kusurlu).

Based on these findings, the Court accepted both claims, ruled for the divorce of the parties pursuant to Article 166(1) of the Turkish Civil Code (Law No. 4721), awarded the wife 500.00 TL per month in provisional maintenance and 750.00 TL per month in poverty maintenance (as the slightly at-fault, unemployed wife would fall into poverty upon divorce), and awarded the wife 40,000.00 TL in pecuniary damages and 40,000.00 TL in non-pecuniary damages along with legal interest, as the conditions of Article 174(1) and (2) of Law No. 4721 were met. The Court rejected the husband's claims for damages due to his heavy fault.

IV. APPEAL (ISTINAF)

C. Rationale and Conclusion (Regional Court of Justice)

The Regional Court of Justice, in its decision with the above-mentioned date and file number, stated the following rationale:

• Wife’s Fault: She wrote insulting messages to the husband's father; she insulted the husband by commenting "Erase it so they think you're a man" on his social media photo; and she was excessively jealous, constantly calling and requesting pictures of his location.

• Husband’s Fault: Despite knowing of the wife's eye condition before marriage, he avoided treatment and paying expenses afterwards, claiming it was expensive; he failed to provide the wife with spending money when sending her to her family; upon returning home, he checked the rooms for another person, humiliating the wife; he failed to meet her needs; he allowed his family to interfere with the marriage by calling the wife via video call without regard to the time; and he engaged in trust-damaging behaviour by liking photos belonging to other women.

• Degree of Fault: Based on the established faults, the husband remained heavily at fault (ağır kusurlu) and the wife was deemed slightly at fault (hafif kusurlu).

The BAM, therefore, accepted the appeal claims regarding fault and corrected the rationale for fault. Considering the parties' established social and economic statuses, the nature of maintenance, current economic conditions, the wife's needs, and the principle of equity (hakkaniyet ilkesi), the Court ruled that the awarded provisional and poverty maintenance amounts were insufficient. Thus, it increased the maintenance awarded to the wife to 1,000.00 TL per month (provisional and poverty maintenance).

Furthermore, upon assessing the parties’ fault degrees, established economic and social statuses, the purchasing power of money, and the scope of expected benefits, the Court found the awarded damages to be excessive. Consequently, it reduced the pecuniary damages to 30,000.00 TL and the non-pecuniary damages to 30,000.00 TL along with legal interest, awarded to the wife. The remaining appeal objections of both parties were dismissed as there was no procedural error in the First Instance Court's ruling on those points.

V. APPEAL TO THE COURT OF CASSATION (TEMYIZ)

C. Rationale (Court of Cassation)

1. Dispute and Legal Classification

The dispute focuses on whether the parties were at fault in the mutual divorce case based on the ground of the fundamental breakdown of the marital union, whether the conditions for awarding maintenance and damages to the wife were met, and whether the amounts of maintenance and damages were appropriate according to the file content.

2. Applicable Law

Relevant articles of Law No. 6100 (Code of Civil Procedure), Law No. 4721 (Turkish Civil Code), and Law No. 6098 (Turkish Code of Obligations).

3. Assessment

1. The annulment of the final decisions of the Regional Courts of Justice is possible only if one of the grounds specified in Article 371 of Law No. 6100 exists.

2. The decision of the Regional Court of Justice, upon appeal, is found to be compliant with the procedure and law based on the parties' mutual claims and defences, the documents they relied upon, the rules of law applicable to the dispute, the legal classification, the prerequisites for the claim, the rules of evidence and procedure, and the justification stated in the decision. Therefore, the reasons put forward by the parties' counsels in their appeal petitions were not deemed to be of a nature that would necessitate the annulment of the decision.

DECISION

For the reasons explained:

The decision of the Regional Court of Justice subject to the appeal is UPHELD (ONANMASINA) pursuant to Article 370(1) of Law No. 6100.

The appeal expenses specified below shall be charged to the appealing parties.

The file shall be sent to the First Instance Court, and a copy of the decision shall be sent to the Regional Court of Justice.

Decided unanimously on 01.06.2023.