Concept of Fault, Post-Marital Maintenance Obligation and Discrimination against Women in the Turkish Judicial System

Abstract

In case of dissolution of a marital union because of divorce, the maintenance obligation is regulated in Articles 1741 and 1752 of the new Turkish Civil Code of 2002 under the titles 'material compensation' and 'destitution alimony', whereby 'fault' (kusur) serves as the key concept to establish both the maintenance obligation and other related concepts; 'no-fault, lesser-fault, and graver fault' are left to Judiciary's discretion. It is striking that the Turkish Judiciary is reaching different conclusions in cases where the acts leading to divorce were committed by the woman compared to those where such acts were committed by the man. This study aims to investigate the nuances between fault assessments on the part of the Turkish and Swiss judiciaries, and by doing so, reveal that discriminatory rulings cause a loss of alimony and compensation rights of women due to the differences in such fault assessments. It discusses the Court of Appeals' (Yarg?tay) efforts to equalize the faults of spouses, as well as the discriminatory judgements that treat women unjustly. The study makes it clear that the concept of 'equal fault' (es'it kusur), embraced with inspiration from Swiss law, is used as a means by the Turkish judiciary to eliminate women's right to compensation. Through these discriminatory approaches, the Turkish judiciary is violating its obligations imposed by the Constitution to ensure gender equality. © The Author(s) 2018. Published by Oxford University Press. All rights reserved.