1. INTRODUCTION
The family is
regarded as the fundamental unit of society, and the institution of marriage
constitutes one of the most significant components of this structure protected
by law. The Turkish Civil Code proceeds on the premise that marriage imposes
reciprocal rights and obligations upon the spouses and accordingly regulates
their duties to live together, to act in solidarity, to remain faithful to one
another, and to preserve the family union. However, where the marital
relationship becomes intolerable for the spouses due to various circumstances,
the institution of divorce comes into play, providing them with the legal means
to terminate the marital union.
Under Turkish
law, divorce is not merely an act based on the parties’ mutual will; rather, it
is a judicial process that requires the existence and proof of legally
recognized grounds and the underlying facts supporting those grounds. In
addition to specific grounds for divorce—such as adultery, attempted murder,
cruel or degrading treatment, abandonment, and mental illness—the Turkish Civil
Code also recognizes the “irretrievable breakdown of the marital union” as a
general ground for divorce, which is the most frequently invoked basis in
practice. In particular, the deterioration of mutual trust, breach of the duty
of fidelity, neglect, psychological abuse, communication breakdown or serious
marital discord are assessed within this framework, with each case being
evaluated on the basis of its own particular circumstances.
In divorce
proceedings, the court’s primary task is to determine whether the parties’
allegations and defenses accurately reflect the facts. Accordingly, the law of
evidence plays a central role in divorce litigation. Pursuant to the general
principles of the Code of Civil Procedure, the burden of proving an asserted
claim rests with the party advancing it. In determining the parties’ respective
degrees of fault, courts do not rely solely on their statements; rather, they
assess witness testimony, documentary evidence, electronic communications, text
messages, emails, social media posts, photographs, video recordings, and other
tangible evidence as a whole before reaching a conclusion.
With the
advancement of technology and the widespread use of digital communication
tools, the types of evidence considered in divorce proceedings have become
increasingly diverse. In particular, social media posts, personal notes,
digital journals, and electronically stored records have emerged as frequently
debated forms of evidence in recent years. Within this context, the legal
characterization of personal notes commonly referred to as “manifests”,
“manifestation lists”, or “wish lists”—which have recently gained widespread
popularity among the public and on social media platforms—has also become a
matter of increasing legal significance.
The concept of
“manifestation” generally refers to the practice of putting into writing an
individual's future goals, aspirations, expectations, or desired way of life, a
practice rooted in the personal development literature that is based on the
idea of giving concrete expression to one's thoughts and directing oneself
toward specific objectives; however, whether such notes reflect an individual's
actual conduct or merely their inner thoughts, and how they should be
interpreted in divorce proceedings with respect to the assessment of fault and
the alleged breach of the duty of fidelity, remain legally unsettled issues
whose boundaries have yet to be clearly defined.
This article
examines the legal nature of personal notes and manifestation lists, their
admissibility and probative value in divorce proceedings, their implications
for the duty of fidelity and the concept of fault, and their significance
within the law of evidence, in light of doctrinal views and general principles
of law; thereby seeking to elucidate the potential consequences of this
increasingly prevalent phenomenon in the context of family law.
2. THE CONCEPTS
OF PERSONAL NOTES AND MANIFESTATION LISTS
The concept of
manifestation, which has its origins in positive psychology,
cognitive-behavioral approaches, and personal development theories, is defined
as a method whereby individuals articulate in writing the goals they wish to
achieve, the life conditions they aspire to attain, or the events they seek to
realize, with the aim of focusing their attention on these objectives. In
recent years, this approach has become increasingly widespread, particularly
through social media platforms, and is based on the assumption that an
individual's thoughts and expectations may influence their future behavior.
Within the
scope of manifestation practices, individuals frequently set out their career
goals, financial expectations, social relationships, plans concerning family
life, or idealized descriptions of a spouse and romantic relationships in the
form of various notes, diaries, or lists. In practice, these records—referred
to interchangeably as “manifestation lists,” “wish lists,” “vision lists,” or
“goal lists”—constitute written expressions of an individual’s expectations and
aspirations regarding the future.
In the
psychological literature, manifestation practices are grounded in the idea that
individuals can concretize their goals, enhance their motivation, and orient
themselves toward specific objectives. Accordingly, manifestation lists often
reflect not the realities of an individual’s current life, but rather the
conditions they aspire to bring into existence in the future. In other words,
such lists are not records of events that have already occurred, but rather
written expressions of an individual’s thought processes and expectations.
From a legal
perspective, the correct characterization of manifestation lists is of
particular importance, as the legal order is, as a rule, concerned not with
individuals’ thoughts, but with externally manifested volitional conduct and
acts giving rise to legal consequences. Indeed, Article 25 of the Constitution
of the Republic of Türkiye guarantees freedom of thought and opinion,
stipulating that everyone has the right to freedom of thought and opinion
(Constitution of the Republic of Türkiye, Art. 25). For this reason, an
individual’s thoughts and expectations expressed solely in personal notes
cannot, in themselves, be said to give rise to legal liability or fault.
However,
personal notes and manifestation lists may, by virtue of their content, become
subject to evidentiary assessment in certain legal disputes. In particular, in
divorce proceedings where fault is examined, the parties’ conduct,
correspondence, social media posts, and other forms of evidence are evaluated
as a whole. In the established case law of the Court of Cassation, it is
likewise accepted that fault assessment must be carried out in light of the
specific circumstances of the case and the parties’ conduct. [1]
Indeed, the
established case law of the Court of Cassation accepts that, in divorce
proceedings, the determination of fault must be made by taking into account the
parties’ concrete conduct, actions, and their effects on the marital union.
Accordingly, when assessing the legal value of manifestation lists, it is
necessary to examine whether such records merely reflect personal thoughts and
expectations, or whether, when evaluated in conjunction with other evidence,
they reveal a particular conduct or relationship.
In this
context, manifestation lists, while not constituting a direct form of conduct
or a legal transaction in legal terms, may nevertheless be regarded as personal
records that can be taken into account in evidentiary assessment depending on
their content and their connection to the specific circumstances of the case.
However, in making such an assessment, a delicate balance must be struck
between freedom of thought, the right to privacy, and the fundamental
principles of the law of evidence.
3. THE DUTY OF
FIDELITY AND FAULT ASSESSMENT IN DIVORCE PROCEEDINGS
Marriage, as is
well known, is not merely a legal act whereby the parties declare their
intention to establish a shared life, but also a special legal status that
imposes certain rights and obligations on spouses. Article 185(3) of the
Turkish Civil Code expressly provides that spouses are obliged to live
together, assist one another, and remain faithful to each other. In this
respect, the duty of fidelity constitutes one of the fundamental elements of
the marital union and aims to preserve the relationship of trust between the
spouses.
The duty of
fidelity does not refer solely to physical fidelity. As accepted in doctrine
and judicial practice, the duty of fidelity also encompasses spouses acting
honestly towards one another, refraining from conduct that may harm the marital
union, and avoiding actions that could undermine the bond of trust between
them. Accordingly, a breach of the duty of fidelity does not arise exclusively
in the form of adultery; inappropriate emotional relationships with third
parties, trust-damaging behavior, secret meetings, romantically charged
communications, or other conduct impairing the marital union may also be
subject to fault assessment. [2]
In divorce
proceedings, the concept of fault may be defined as a spouse’s breach of the
obligations arising from the marital union, thereby contributing to the
breakdown of the marriage. In particular, in divorce actions based on the
ground of irretrievable breakdown of the marital union, set out under Article
166 of the Turkish Civil Code, fault plays a significant role in the assessment
of the parties’ divorce claims, in claims for pecuniary and non-pecuniary
damages, and in the judgments rendered at the conclusion of the proceedings.
However, in
assessing fault in divorce law, it is not possible to rely solely on
assumptions or subjective opinions. Pursuant to the general principles of proof
under the Code of Civil Procedure, the conduct alleged to constitute fault must
be established through concrete evidence. Indeed, in the established case law
of the Court of Cassation, it is likewise accepted that the determination of
fault requires a holistic assessment of the parties’ actual conduct, the impact
of such conduct on the marital union, and the available evidence. [3]
The key point
here is that the legal order, as a rule, assesses conduct rather than thoughts.
Pursuant to Article 25 of the Constitution of the Republic of Türkiye, everyone
enjoys freedom of thought and opinion. For this reason, an individual’s
internal thoughts, fantasies, or personal assessments cannot, in themselves, be
regarded as a breach of the duty of fidelity. Similarly, personal notes,
diaries, or manifestation lists cannot be treated as conduct that directly
constitutes fault. Nevertheless, where the content of such records, when
assessed together with other evidence, reveals a specific act or relationship,
they may be taken into account by the court as corroborative evidence.
Accordingly, in
divorce proceedings, the decisive factor in determining whether the duty of
fidelity has been breached is not the individual’s inner thought world, but
rather whether those thoughts have materialized into externally observable
conduct. For this reason, personal notes and manifestation lists are not, in
themselves, considered sufficient to establish fault; however, depending on the
specific circumstances of the case, they may acquire legal significance when
assessed together with other evidence.
However, it
must also be borne in mind that each case must be assessed in light of its own
specific circumstances. Although the legal order, as a rule, focuses not on
individuals’ thoughts but on externally manifested conduct, the content of
personal notes may, in certain situations, lead to different legal consequences
in the context of the marital union. In particular, where a married person
systematically records detailed fantasies and plans concerning marrying, living
with, or maintaining a romantic relationship with a specific person other than
their spouse, such records cannot always be regarded merely as abstract expressions
of thought. This is because the marital union is founded on the principles of
mutual trust, commitment, and fidelity. The written expression of expectations
and desires to build a shared future with another person may seriously
undermine the sense of trust that constitutes the essence of the marital
relationship from the perspective of the other spouse.
For this
reason, even if such notes cannot, on their own, be regarded as adultery or a
direct breach of the duty of fidelity, they may nevertheless be taken into
consideration in the assessment of irretrievable breakdown of the marital
union, depending on their content and the specific circumstances of the case.
In particular, where the expressions contained therein are degrading,
exclusionary, or indicative of a lack of intention to continue the marital
relationship from the perspective of the other spouse, it may be argued that
such conduct constitutes trust-damaging behavior and may be classified among
the circumstances rendering the marital union intolerable. Indeed, under
Article 166 of the Turkish Civil Code, what is of significance is not merely
whether the duty of fidelity has been breached in a technical sense, but
whether it can reasonably be expected that the spouses continue their shared
life. In this context, where there are intensive and continuous written
expressions concerning the establishment of a life with another person, and
where such expressions render the continuation of the marital union intolerable
for the other spouse, it is possible for them to be taken into account as
corroborative circumstances in the assessment of fault.
4. LEGAL CONSEQUENCES OF MANIFESTATION
LISTS IN TERMS OF THE DUTY OF FIDELITY AND FAULT ASSESSMENT
The view that
manifestation lists merely constitute records of an individual’s thought
processes and therefore do not give rise to legal consequences may, at first
sight, appear sound; however, given the specific nature of family law, it
cannot be said that this conclusion is valid in every individual case. A
marital union is not limited to the spouses’ cohabitation but rather
constitutes a special legal and emotional relationship founded on mutual love,
respect, trust, commitment, and the intention to build a shared future. For
this reason, not only the spouses’ conduct but also their attitudes towards the
marital union and their intent regarding its continuation are of significance.
Indeed,
pursuant to Article 185 of the Turkish Civil Code, spouses are obliged to
remain faithful to one another. The duty of fidelity does not encompass only
physical fidelity; it also includes preserving the spouses’ mutual commitment,
refraining from conduct that may undermine the marital union, and maintaining
the intention to continue the shared life. For this reason, in assessing the
duty of fidelity, not only completed physical acts but also other forms of
conduct that are trust-damaging in terms of their impact on the marital union
must be taken into account.
In this
context, where a married individual systematically records thoughts concerning
marrying, cohabiting with, forming a family with, or planning a shared future
with a person other than their spouse, and adopts such ideas as a personal goal
or life plan, such conduct, although it may not be characterized as a direct
breach of the duty of fidelity, may nevertheless be regarded as incompatible
with the essence of the marital union. In particular, where emotionally charged
fantasies directed at a specific third person, post-marital life plans, or a
detailed intention to establish a relationship with someone other than the
spouse are set out in writing, such circumstances may lead to a serious loss of
trust from the perspective of the existing spouse. Indeed, the discovery that
one spouse has, while the marital union is still ongoing, reduced to writing
their fantasies of building a happy life with another person may be perceived
by the other spouse not only as disturbing but also as humiliating and distressing.
The issue here is not merely the existence of such thoughts, but the fact that
the individual’s mental and emotional orientation is directed towards a person
outside the marital union. In such a situation, it may be regarded as
consistent with the ordinary course of life that the other spouse loses trust
in the future of the marriage and no longer wishes to continue the shared life.
For this
reason, treating expressions contained in manifestation lists as mere “personal
thoughts” may not always be sufficient. In particular, records which, by virtue
of their content, indicate the exclusion of the existing spouse, the planning
of a shared future with another person, or the desire to terminate the marital
union may be taken into account in assessing the existence of an irretrievable
breakdown of the marital union under Article 166 of the Turkish Civil Code.
Indeed, the establishment of irretrievable breakdown does not require the
occurrence of adultery or another specific ground for divorce. What is
essential is the collapse of the relationship of trust between the spouses and
the point at which the continuation of the shared life can no longer reasonably
be expected.
On the other
hand, the significance of manifestation lists in fault assessment is not
limited solely to their effects on the dissolution of the marital union. Where
the content of such records is subsequently corroborated by concrete conduct,
these notes may also serve as corroborative evidence in proving fault. For
instance, where intensive communication is later established with the person
named in the manifestation list, an emotional relationship develops,
romantically charged correspondence is found, or other evidence indicating a de
facto relationship emerges, the manifestation list may be regarded as
supporting evidence demonstrating the party’s inclination and intent.
In our view,
while a married individual’s systematic recording of fantasies concerning
building a life with someone other than their spouse cannot, on its own, be
characterized as a breach of the duty of fidelity or as adultery, it
nonetheless constitutes an important factual element that may be taken into
account in divorce proceedings, insofar as it indicates a weakening of the
intention to continue the marital union and may render the shared life
intolerable for the other spouse. In particular, where such records are
supported by other evidence, they should also be considered in the assessment
of fault.
5. THE
IMPORTANCE OF MANIFESTATION LISTS IN DETERMINING THE INTENTION TO CONTINUE THE
MARITAL UNION
In divorce law,
the assessment of whether the marital union has broken down irretrievably is
not limited to overt conflicts between the spouses, acts of physical
infidelity, or seriously wrongful conduct; rather, the parties’ intention to
continue the marital union is also of significance. Marriage is not merely a
legal relationship but a special form of life partnership grounded in the
spouses’ intention to live together, support one another, remain faithful, and
build a shared future.
Pursuant to
Article 185 of the Turkish Civil Code, spouses are obliged to live together,
assist one another, and remain faithful to each other. These obligations
require not only the formal continuation of the marital relationship but also
conduct consistent with the nature of marriage and a genuine intention to
maintain the shared life. Accordingly, where a spouse appears to continue the
marriage in practice but directs their mental and emotional orientation towards
an imagined future with another person, such circumstances may, depending on
the specific facts of the case, indicate a weakened intention to continue the
marital union.
Manifestation
lists gain significance at this point. As a rule, thoughts, fantasies, or
wishes expressed in a person’s private notes do not, on their own, give rise to
legal liability or fault. The legal order is concerned not with individuals’
inner thoughts, but with their externally manifested conduct. However, where
the records contained in a manifestation list go beyond a merely abstract
desire or general expectation for the future and take the form of concrete
plans to marry, cohabit with, establish a family with, or build a shared life
with a specific person other than the spouse, such circumstances must be
separately assessed in terms of the intention to continue the marital union.
At the core of
the marital union lies the spouses’ intention to build a shared future. When
this shared intention disappears, or when one spouse redirects it towards
another person, the foundation of trust underlying the marital relationship may
be seriously undermined. In particular, where a married individual
systematically records written statements concerning how they intend to live in
the future with a specific person other than their spouse, their intention to
marry that person, to maintain a happy family life with them, or to enjoy a
peaceful future with them in contrast to their current spouse, such
circumstances may render the continuation of the marital union intolerable for
the other spouse.
It should be
expressly emphasized that such a manifestation record cannot, on its own, be
characterized as adultery or a direct breach of the duty of fidelity. However,
in divorce law, each case is not assessed in isolation but in conjunction with
other factual circumstances. Accordingly, where thoughts recorded in a
manifestation list concerning building a future with another person are
accompanied by other indicia—such as indifference towards the spouse, emotional
coldness, distancing behavior, avoidance of shared life, reduced communication,
failure to fulfill marital responsibilities, or additional evidence suggesting
closeness with a third party—such records can no longer be regarded merely as
expressions of thought. In such a case, a manifestation list may acquire the
character of corroborative evidence revealing the spouse’s attitude towards the
marital union, their intention regarding a shared future, and their emotional
orientation. In other words, a manifestation record may not constitute
conclusive proof of fault in itself; however, it may be taken into account as a
significant factual element indicating that the spouse’s intention to continue
the marital union has weakened or ceased to exist.
In particular,
where the person named in a manifestation list is subsequently contacted,
followed by closer interaction through social media, engages in romantically
charged correspondence, or where witness testimony confirms the existence of an
emotional relationship, or where the spouse displays indifference and
exclusionary behavior towards the existing marital relationship, such
manifestation records gain significance when assessed together with other
evidence. In such cases, the court must not rely solely on the existence of the
manifestation list; rather, it should examine its content, the manner in which
it was written, its continuity, whether it is directed towards a specific
person, and its connection with the spouse’s other conduct.
In our view,
where one of the spouses systematically records thoughts during the
continuation of the marital union concerning building a shared future with
another person—particularly where such conduct is accompanied by behavior that
is distant, indifferent, or otherwise damaging to the marital relationship—it
may be taken into account, within the scope of Article 166 of the Turkish Civil
Code, in assessing the existence of an irretrievable breakdown of the marital
union. In such a case, the issue is not confined to a purely internal mental
process but rather concerns the weakening of the intention to continue the
marital union and the resulting deterioration of the relationship of trust
between the spouses. In conclusion, manifestation lists cannot in every case be
regarded as a ground for divorce or as a breach of the duty of fidelity.
However, records that contain plans to build a future with a specific person
other than the spouse, that exclude the existing spouse, and that indicate a
weakening of commitment to the marital union may, when assessed together with
the spouse’s other conduct and the evidence in the case file, be accepted as
corroborative and supplementary evidence demonstrating an irretrievable
breakdown of the marital union.
6. CONCLUSION
AND EVIDENTIARY ASSESSMENT
The primary aim
in divorce proceedings is to establish, on the basis of concrete evidence, the
facts that have led to the irretrievable breakdown of the marital union and to
determine the parties’ respective degrees of fault in accordance with the law.
In this context, courts reach a conclusion not solely on the basis of the
parties’ statements, but by assessing all the evidence contained in the case
file as a whole.
Manifestation lists and personal wish notes may, at first glance, be regarded merely as records reflecting an individual’s inner thought processes. Indeed, the legal order generally focuses not on thoughts themselves but on externally manifested conduct, and does not, as a rule, treat an individual’s mental processes as the sole source of legal liability or fault. However, having regard to the distinctive nature of family law, we are of the view that this conclusion does not necessarily lead to the same result in every individual case.
Marriage is not
merely a legal relationship but also a special form of life partnership based
on mutual trust, commitment, fidelity, and the intention to build a shared
future between spouses. Accordingly, where a married individual systematically
reduces to writing thoughts concerning marrying, cohabiting with, or planning a
shared future with a person other than their spouse, such conduct, although it
may not be directly characterized as a breach of the duty of fidelity, may
nevertheless seriously undermine the sense of trust from the perspective of the
existing spouse.
In particular,
the written expression of emotionally charged fantasies directed at a specific
third person, post-marital life plans, or future scenarios in which the
existing spouse is excluded may render the continuation of the marital union
intolerable for the other spouse. In such cases, the issue is not merely the
existence of a thought, but the concrete manifestation of a weakened commitment
to the marital relationship and a diminished intention to maintain a shared
future. For this reason, manifestation lists may, in certain cases, constitute
factual circumstances that can be taken into account in assessing the existence
of an irretrievable breakdown of the marital union under Article 166 of the
Turkish Civil Code.
From the perspective of the law of evidence,
manifestation lists cannot, in themselves, be regarded as conclusive proof. However,
when these records are assessed together with
-
correspondence between the parties,
- social media
posts,
- electronic
messages,
- witness
testimony,
- photographs
and video recordings,
- telephone
records, and
- other
evidence indicating the existence of a relationship with third parties,
they may
acquire significant probative value as corroborative evidence.
In particular,
where subsequent contact is established with the person named in the
manifestation list, an emotional relationship develops, or conduct emerges that
undermines the marital union, such records may be regarded as corroborative
evidence revealing the party’s intention, orientation, and attitude towards the
marital relationship.
In conclusion,
although manifestation lists cannot in all cases be regarded as a breach of the
duty of fidelity or as a direct ground of fault, we are of the view that,
depending on their content, scope, and the specific circumstances of the case,
they may be of relevance in the assessment of irretrievable breakdown of the
marital union, the erosion of trust between the spouses, and fault.
Accordingly, rather than categorically dismissing manifestation lists as
legally insignificant in divorce proceedings, it would be more appropriate to
assess them on a case-by-case basis together with other evidence.
In our view,
where a spouse systematically records thoughts during the continuation of the
marital union concerning marrying, cohabiting with, or building a romantic
future with a specific third person, such conduct—although it may not, on its
own, be characterized as adultery or a clear breach of the duty of
fidelity—should nevertheless be regarded as an important indicator of a
weakened commitment to the marital union. In particular, where such records are
accompanied by conduct such as indifference towards the spouse, emotional
distancing, cold behavior, avoidance of shared life, and similar acts, these
circumstances must be assessed as a whole. In such cases, manifestation lists
cease to be mere expressions of thought and acquire the character of
corroborative evidence indicating an irretrievable breakdown of the marital
union.
Att. Gülden
Mehmed
References:
1. Dural, Mustafa
/ Öğüz, Tufan / Gümüş, Mustafa Alper, Türk Özel Hukuku Cilt III (Turkish
Private Law Vol. III) - Aile Hukuku (Family Law), Filiz Publishing
House, Istanbul, 2024, p. 118 et seq.
2. Dural, Mustafa
/ Öğüz, Tufan / Gümüş, Mustafa Alper, Türk Özel Hukuku (Turkish Private Law)–
Aile Hukuku (Family Law), Filiz Publishing House, Istanbul, 2024, p. 102
et seq.
3. Decision, bearing
the Basis number 2017/2-2057, the Decision number 2020/240 and dated 26.02.2020,
of the General Assembly of Civil Chambers of the Court of Cassation; Decision,
bearing the Basis number 2021/3707, the Decision number 2021/6046 and dated
05.07.2021, of the 2nd Civil Chamber of the Court of Cassation
