Abstract:

One of the issues, recently a matter of debate in relation to the claim for non-pecuniary damages in divorce law, is whether or not a cheated spouse is entitled to claim non-pecuniary damages against a person who is having or had intercourse with his/her spouse. Until recently, in its relevant judgments, the Court of Cassation adopted the opinion that a cheated spouse was entitled to claim non-pecuniary damages against a person who had intercourse with his/her spouse. In its old-dated judgments, the Court of Cassation adjudged that illegitimate intercourse of a married person constituted an infringement on the other spouse’s social-personal values, and that the person, who was involved in this act despite he/she was aware of the marriage, shall, severally with the cheater spouse, be liable for the damages suffered by the other spouse. However, in its judgment of 07.05.2015, the Court of Cassation has adopted a different opinion, and adjudged that the cheated spouse is not entitled to claim non-pecuniary damages against the person who had intercourse with her spouse, on the ground that the intercourse of the defendant with a married person could not be considered as an act that would constitute infringement on the personal values of the cheated spouse. At this point, it is not possible to say that there is a tortuous liability arising out of infringement on personality rights. This is because; there is no personality right which includes a person’s right not to be cheated by his/her spouse and may be claimed against everyone by such person. At this point, a breach of merely the fidelity obligation is in question. Since the spouse is in breach of the fidelity obligation, in such case, the cheated spouse may claim damages directly against the other spouse, not against the third person. Furthermore, marriage represents a contract between two persons only. Therefore, marriage does not impose obligations on any persons other than spouses. Consequently, since the third person does not have the fidelity obligation to the other spouse, it is not possible to sue for non-pecuniary damages against such third person, arising from breach of the fidelity obligation.

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