Testifying in Divorce Cases – Lawyer in Izmir
Witness testimony is often among the most important pieces of evidence in divorce cases. Therefore, it is at the forefront of the evidence used in these proceedings.
In short, witness testimony is the act of a person who is not a party to a lawsuit disclosing, before the court, information obtained directly through observation from their five senses regarding a disputed factual event that could affect the outcome of the case. In this context, only the parties to the lawsuit can invoke witness testimony, and the court does not have the authority to hear witnesses on its own initiative unless the parties have named them. Furthermore, the matter to be witnessed must relate to the disputed factual event and be of a nature that could affect the outcome of the lawsuit.
Procedure regarding presenting witnesses, Code of Civil Proceduren 240. Article 1 states: “(1) Persons who are not parties to the case may be presented as witnesses. (2) The party presenting the witness shall submit to the court a list containing the facts on which it wishes to present the witness, and the names, surnames, and addresses suitable for notification of the witnesses to be heard. Persons not included in this list cannot be heard as witnesses, and a second list cannot be submitted. (3) If no address is given in the witness list or if the witness cannot be found at the given address, the party shall be given a definite period of time, appropriate to the nature of the case, to provide an address. If no address is provided within this period or if the new address provided is also incorrect, it shall be deemed that the hearing of that witness has been waived.” This is stated as follows. Additionally, according to the Supreme Court, if the parties rely on facts and witness testimony in their lawsuit or response, and if each witness separately states in writing which factual matter they testified to, it must be accepted that each witness will testify about all the facts relied upon. In this context, after the witness list is submitted, it is mandatory to notify the opposing party of the list. Thus, the parties learn who the witnesses they wish to hear are, and if there are reasons to doubt the veracity of the testimony, they will be able to raise their objections regarding the witnesses within the scope of Article 255 of the Code of Civil Procedure. Indeed, if the court obtains sufficient information about the matter sought to be proven through the testimony of some of the witnesses presented, it may decide not to hear the other witnesses.
In divorce cases, it is sufficient to submit the witness list to the court in accordance with the procedure within the deadline for filing a petition for evidence. Individuals not included in the witness list cannot be called as witnesses later. Furthermore, a second witness list cannot be submitted after the first one has been provided. In this context, the court may decide not to hear some of the witnesses depending on the nature of the case and the data obtained during the trial.
On the other hand, except for the exceptional cases specified in the law, testifying in divorce cases is a legal obligation. In other words, in divorce cases, the person named as a witness by the plaintiff or defendant and summoned by the court must fulfill their duty of testifying in court. Otherwise, they will face the sanctions stipulated in the law. In this context, even first-degree relatives can testify in divorce cases. In addition, the reasons for refusing to testify are regulated in the Code of Civil Procedure. The most common of these in divorce cases is refusal to testify for personal reasons. Furthermore, although this right is not granted to everyone, those who can refuse to testify are listed in Article 248 of the Code of Civil Procedure; the descendants or ancestors of the party or their spouse, the fiancé(e) of one of the parties, the spouse of one of the parties even if the marriage has been dissolved, those who have an adoptive relationship with one of the parties, blood relatives up to the third degree or in-laws even if the marriage has been dissolved, foster families and their children, and children under protection. Individuals listed in this manner may refuse to testify.
Therefore, there is no problem with these individuals testifying without exercising their right to refuse to testify. In other words, close relatives can also testify in divorce cases. At this point, it is very important that the witness, who is a close relative, provides a consistent statement based on firsthand knowledge. Witnesses who will testify in this way are heard in court under oath.
“"It is contrary to procedure and law for the court to disregard the eyewitness testimony of the husband's witnesses simply because they are relatives."” (Y2HD, E.2014/26168, K.2014/25672)
Witness testimonies must be credible, consistent, and based on firsthand observation. Contradictory testimonies, especially those "aimed at saving the marriage," should not be considered by the court. Similarly, witness statements that are not credible within the context of the circumstances of the case will not be used as the basis for a judgment. In divorce cases, witnesses must have personally witnessed the events they are testifying about. Witness statements not based on firsthand observation are invalid. If witnesses were in a different location at the time of the event they are testifying about, or if their statements are based on accounts given by the parties to the case or third parties, their testimonies cannot be used as the basis for a judgment. Furthermore, witnesses must substantiate the matters they are testifying about and include the time and place of their testimony. Witness statements that meet the above-mentioned conditions constitute important evidence for the parties to the divorce case, enabling them to prove their claims. The court will evaluate witness statements and other evidence that meet these conditions together to finalize the divorce case.
On the other hand, objections can be raised against the witness statements heard in court. These objections can be made during the hearing or requested in writing from the court after the hearing, within a specified time frame. Furthermore, if a statement is desired against a witness after all witnesses have been heard, it is also possible to do so during the hearing. Similarly, if the parties request time to present their objections and statements against the witness testimonies, these objections are generally prepared and submitted within a two-week period or within the time frame specified in an interim decision given by the judge. Finally, the most important point that witnesses whose statements are to be taken in a divorce case must pay attention to is that they should only testify about matters they have seen and know. Therefore, if a witness testifies about matters they do not clearly know or have not seen, this testimony will not affect the judge's decision.
