Özet:

The legal role and nature of spouses’ sexual dissatisfaction with each other in marriage and divorce must be determined. According to debitum conjugale, the imposition of copula carnalis or, in other words, sexual relations between spouses as an obligation is based on canon law. However, the view that marriage endows spouses with such reciprocal obligations must now be abandoned. Positive and negative behaviors such as cohabitation, loyalty, and tending to the happiness of the marital union should be qualified as a legal duty or task (or assignment) in the sense of family law, not an obligation in the sense of law of obligations. Certainly, sexual intercourse between spouses is not explicitly regulated by law and obligation should not be deduced from the existing provisions on the duties of spouses through interpretation. The Court of Cassation largely attributes full fault to defendants who are unwilling or unable to have sexual intercourse with their spouses in contentious divorce cases. The fact that sexual interaction is not established at all or is interrupted for a long time, contrary to the wishes of one party, of course indicates that the foundation of the marriage union has broken down irremediably. Nevertheless, this indication does not mean that the issue of sexuality in divorce can be directly subject to the distribution of faults. The condemnation of spouses who suffer psychologically and physically from ailments such as vaginismus or erectile dysfunction with complete fault in divorce both violates the definition of fault and reduces marriage to a partnership of lust. On the other hand, the termination of the sexual desire of one of the spouses towards the other and the avoidance of sharing a bedroom reflects the use of the freedom of decision, including the right of personality, and does not satisfy the concept of fault in the breakdown of the marital union. In the case of such sexual disorders and/or avoidance, the ending of the marriage in divorce without the fault of either spouse should be possible. However, in divorce cases based on the breakdown of the marital union, the Turkish Court of Cassation (Yargıtay) investigates the criterion for the defendant to be deemed at least slightly faulty. This criterion of the Court of Cassation poses problems in the divorces of spouses who could not establish close sexual relationships or whose intimacy ended. In Turkish divorce practice, the principle of fault should not be extended by the Yargıtay against the will of the legislator. Creating competition among the private lives of spouses in case files and court hearings can alienate the society from marriage. The fault-centered and multi-cause divorce system is not functional. For this reason, reform in Turkish divorce law can be organized by taking the family law developments in Switzerland and France as an example.