KÜHEYLAN HUKUK
Divorce Due to Cheating and Legality of Evidence (2026) TMK art. Adultery and Violation of the Obligation of Fidelity within the Framework of Articles 161 and 166; Evidentiary Value of WhatsApp Correspondence, Camera Recording, Location Data and Detective Reports Updated as of 2026
Infidelity constitutes a reason for divorce in Turkish law in two different ways: adultery, which is a special reason for divorce in cases where sexual intercourse is proven (TMK article 161), and in cases where the proof does not reach this level, the foundation of the marriage union is shaken due to the violation of the obligation of fidelity (TMK article 166). The fate of the case is often determined by the legality of the evidence. Evidence obtained illegally is not taken into account (HMK article 189/2); Moreover, these methods may make the spouse who collected the evidence both at fault and face criminal liability.
Adultery is when a married person willingly has sexual intercourse with someone other than his or her spouse. TMK m. The case based on Article 161 is an absolute reason for divorce: when adultery is proven, the judge decides to divorce without investigating whether the marital union has been shaken or not. On the other hand, direct proof of sexual intercourse is not always possible. Correspondence involving emotional closeness, constant meetings with another person or behavior that violates trust is considered a serious violation of the obligation of loyalty, even if it does not reach the level of adultery, and is subject to Turkish Civil Code art. It constitutes the basis for divorce and compensation claims within the scope of Article 166/1.
burden of proof Proof of sexual intercourse is required Proof of trust-breaking behavior is sufficient
Forgiveness The forgiving spouse has no right to sue The forgiven event cannot be relied upon alone.
In practice, lawyers put forward the claim of adultery gradually to avoid the risk of difficulty in proving it: first of all, TMK art. 161, if this cannot be proven, TMK art. Divorce is requested in accordance with Article 166/1. Thus, both possibilities are evaluated in a single case.
HMK m. In accordance with Article 189/2, evidence obtained illegally cannot be taken into account by the court. The established jurisprudence of the 2nd Civil Chamber of the Supreme Court of Appeals focuses on the way evidence is obtained. As a rule, evidence obtained from a source that is easily accessible to everyone in the environment where spouses live together, without requiring any special effort or technical intervention, is considered lawful. On the other hand, evidence obtained by cracking passwords, installing spyware, eavesdropping or placing a tracking device without the spouse's knowledge is against the law. Evaluation according to evidence types
Correspondence left open on a shared computer or tablet in accordance with the law as a rule
Photo of accidentally seen messages on spouse's unlocked phone It is mostly considered lawful in Supreme Court practice
A phone whose password is cracked or secretly learned It is against the law; TCK art. Criminal risk in terms of 243–244
Spyware, secretly connecting WhatsApp Web It is against the law; unlawful seizure of personal data (TCK article 136)
Security camera installed in the living room of the shared residence If it is in a common area and within everyone's knowledge, it is generally lawful.
Camera or audio recorder secretly placed in the bedroom or vehicle It is against the law; Violating the right to privacy (TCK Article 134)
Hotel records, credit card statements, HTS records Lawful when subpoenaed through the court
Private detective work is not regulated as a legal profession in Turkish law. Although observation and photography in public areas are taken into consideration in some decisions, the risks of systematic tracking, processing of personal data and violation of private life make this method dangerous. The more reliable method is to hear the people who witnessed the incident in court. Witness statements based on eyewitness have a much higher evidentiary power than narratives based on hearsay.
Legal and strong evidence is often obtained through the court. In the petition; HTS (call and location) records may be requested from GSM companies, check-in records from hotels and accommodation facilities, expense statements and social media account information from banks. This method completely keeps the spouse collecting the evidence away from criminal risk.
Since the cheating spouse is considered seriously at fault in the divorce, material and moral compensation may be awarded in favor of the cheated spouse (TMK article 174). Amount of compensation; The duration of marriage is determined by taking into account the social and economic situation of the parties, the nature of the infidelity and the social impact it creates. A seriously flawed spouse cannot claim alimony (TCC Art. 175).
It has been discussed for a long time whether the cheated spouse can claim non-pecuniary damages from a third party who had an affair with his spouse even though he knew that he was married. With the decision of the Grand General Assembly of the Supreme Court of Appeals Unifying Jurisprudence dated 06.07.2018 and numbered 2017/5 E., 2018/7 K., it was concluded that this request cannot be accepted on the grounds that the obligation of fidelity arises only between the spouses. The decision is binding on all courts.
The plaintiff woman saw romantic messages with another woman on her husband's phone, which he left unlocked on the table in the shared house, and took a photo of the screen. Then, he secretly established a WhatsApp Web connection to his wife's phone from a second device and recorded the correspondence for three months.
Since the first evidence is content obtained without requiring any special effort in the joint living space of the spouses, it is likely to be accepted as lawful. Three-month correspondence obtained through a secret WhatsApp Web connection is against the law; It is not taken into consideration by the court and for the plaintiff, TCK art. It creates an investigation risk within the scope of Articles 243 and 136. In some decisions of the Supreme Court, secretly monitoring the spouse's correspondence has been considered as a fault on the part of the monitoring spouse. The correct strategy is to collect HTS records and witness statements through the court upon preliminary evidence.
I found out that my wife is cheating, how long should I file a lawsuit?
A lawsuit based on adultery must be filed within 6 months from learning and, in any case, within 5 years from the date of adultery. If these periods have passed, the case is filed under TMK art. It can be dated back to 166/1.
Is continuing to live in the same house after learning about the cheating count as forgiveness?
Continuing to live in the same house alone does not mean forgiveness; However, maintaining normal married life for a long time after the incident may create a presumption of forgiveness. Therefore, it is recommended not to extend the decision process unnecessarily.
Is a screenshot alone sufficient?
Since screenshots can be easily created, they may be objected to by the other party. Supporting the screenshot with HTS records, witness statements or the other party's admission significantly increases the power of proof.
Does a cheating spouse lose custody of the child?
No, deception alone is not a criterion for custody. Custody is determined according to the best interests of the child; Cheating is evaluated only if it negatively affects parenting capacity.
Installing tracking software on your spouse's phone or cracking his password.
Placing a hidden camera and audio recorder in the bedroom or vehicle.
Sharing the resulting content on social media; This behavior gives rise to liability for insult and invasion of privacy.
Missing the six-month blackout period.
Not requesting the subpoena of HTS and hotel records in the petition.
In cases based on allegations of deception, being right is not enough to get the result; The claim must be brought to court with legal evidence and correct legal qualification. Incorrectly collected evidence may cause the plaintiff to lose the case or become the defendant. Küheylan Law Firm establishes its evidence strategy in divorce cases based on infidelity before the lawsuit is filed, placing both its clients' divorce and compensation claims on a strong basis.
Important Legal Notice: This guide has been prepared for general information purposes and does not constitute legal advice. Since each dispute involves unique facts, the file must be evaluated separately by a lawyer in order to avoid loss of rights in a concrete case. The legislation and case law information contained in the text is up to date as of the date of publication; subsequent changes may affect the result.
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