Alimony Types and Lawsuits

As a legal term, "Alimony" is defined as "a monthly payment that a person is obligated to provide to the person or persons they are responsible for supporting and caring for, as ordered by a court of law". The obligation to provide alimony is a right dependent on the person and does not pass on to their heirs. Article 175 of the Turkish Civil Code states, "The party who will fall into poverty due to divorce may request alimony indefinitely from the other party, in proportion to their financial capacity, provided that his/her fault is not more severe. The fault of the party obligated to provide alimony is not taken into account." Alimony can be awarded not only to women, but also to men depending on their economic situation.

There are four types of alimony lawsuits: welfare allowance (poverty alimony), interim alimony, child support, and maintenance support.

The purpose of alimony lawsuits is to provide for the needs of the party who is experiencing financial difficulties as a result of the end of the marriage. When we examine the types of alimony:

1-Welfare Allowance (Poverty Alimony): This is the alimony awarded to the party who will fall into poverty due to the end of the marriage.

According to Article 175/1 of the Turkish Civil Code, the fault of the party obligated to provide alimony is not taken into account. The requesting party must be less at fault or faultless. Poverty alimony also does not have the aim of enriching the party to whom it is awarded.

-Judge does not make a decision on poverty alimony on their own, it requires a request from the recipient.

-Welfare allowance must be requested either together with the divorce lawsuit or in a separate lawsuit within one year of the divorce decision becoming final. Article 178 of the Turkish Civil Code states, "The lawsuit rights arising from the termination of marriage due to divorce shall be time-barred after one year has passed since the divorce judgment became final."

-Welfare allowance is awarded indefinitely. As stated in Article 331 of the Turkish Civil Code, "In the event of a change in circumstances, the judge may re-determine the amount of alimony upon request or terminate the alimony." Therefore, an increase or termination of alimony may be requested depending on the specific circumstances.

-The person requesting welfare allowance must have fallen into poverty. The Supreme Court has considered the party who cannot even meet their basic needs such as shelter, clothing, food, and health as the party who has fallen into poverty.

"The decisions of the General Assembly of the Court of Cassation numbered 1998/2-656 E., 688 K. dated 07.10.1998; 2007/2-275 E., 275 K. dated 16.05.2007; and 2009/2-73 E., 2009/118 K. dated 11.03.2009, have adopted the principle that individuals who do not have income at a level that can cover the necessary and mandatory expenses to improve their material assets such as food, clothing, housing, health, transportation, culture and education should be considered as "poor".

In determining which party will fall into poverty, the social and economic conditions of the parties must be investigated. In this regard, the income status, work capacity, and property status resources of the person requesting support should be evaluated to make a decision."

COURT OF CASSATION 2ND CIVIL CHAMBER Case Number: 2021/989 Decision Number: 2021/2573 Decision Date: 24.03.2021

"In order for a poverty alimony claim to be accepted, it is necessary to determine that the alimony recipient has fallen into poverty due to divorce. It is certain that the defendant-counterclaimant woman has an social security record. However, the amount of income she earns is not clear. Therefore, it is necessary to investigate the amount of income obtained by the parties as of the decision date and to evaluate whether the income at the minimum wage level would not be an obstacle to receiving poverty alimony (YHGK 2009/3-165-186), and a decision should be made on poverty alimony based on the result of these issues being evaluated together. However, the decision to reject the poverty alimony claim with incomplete examination without taking into account these issues is contrary to procedure and law, and the decision must be annulled."

-The Court of Cassation has accepted that having a minimum wage income does not automatically preclude a poverty alimony claim and that it must be evaluated based on the specific circumstances of the case.

COURT OF CASSATION 3rd CIVIL CHAMBER Case Number 2013/12156 and decision number 2013/14691, dated 23.10.2013, states that “there is no established precedent in the General Assembly of Law regarding the requirement of having an income at the level of minimum wage for granting alimony, and having an income above minimum wage is also not considered as an obstacle for granting alimony. Therefore, it is a determining factor for determining the amount of the alimony. In the specific case, it was understood from the case file that the parties divorced on 12.03.2012, the plaintiff worked as a decorator for minimum wage, was married, her spouse did not work, the defendant worked at a student dormitory after the divorce and earned an income at the level of minimum wage, and lived with their 3-year-old child. The income of the defendant is not sufficient to lift the plaintiff out of poverty and to meet her mandatory and necessary expenses. Therefore, it was considered incorrect to decide on the acceptance of the claim as a whole without taking into account that the defendant's income would only be taken into account in determining the amount of alimony, not to eliminate poverty.”

2- Interim Alimony: It refers to the temporary measure taken in favor of the spouse and children by the judge during the ongoing divorce case (until the decision becomes final).

Article 169 of the Turkish Civil Code states: "When a divorce or separation case is filed, the judge shall, ex officio, take the temporary measures necessary, especially regarding the accommodation, maintenance, management of the spouses' property, and the care and protection of the children, during the continuation of the case."

Decision is made for the payment of interim alimony from the date of the lawsuit. Supreme Court 2nd Civil Chamber Case Number: 2016/3102 Decision Number: 2016/10856 Decision Date: 02.06.2016 "The court ruled on the monthly interim alimony of 500 TL for the plaintiff woman from the date of the request in the hearing dated 27.5.2015. The plaintiff requested clarification of the request date, and the court accepted the request and corrected it as "...starting from the date of the request, which is 7.4.2015." Although the plaintiff requested interim alimony with the lawsuit, it was incorrect to rule it from the date of the response letter, which is 7.4.2015, instead of ruling it from the date of the lawsuit. However, since correcting this mistake did not require a retrial, the correction of the clarification decision should be approved (HUMK art. 438/7) ..."

-Interim alimony is ruled in favor of both the spouse and the child until the divorce case decision is finalized. The marriage continues until the divorce case is concluded. Therefore, temporary measures are taken regarding the sheltering and livelihoods of the spouse or the child. Interim alimony is not ruled for an adult child. The interim alimony ruled by evaluating the financial status of the parties during the lawsuit is given regardless of the reason for the divorce case. In other words, fault is not sought for interim alimony. Interim alimony can be granted to the faulty spouse.

-Judge takes temporary measures ex officio. There is no requirement for a request from one of the spouses. If requested, the amount of alimony ruled cannot exceed the requested amount. Interim alimony is ruled to be paid monthly or in advance in Turkish Lira. Interim alimony can be increased or decreased if the conditions change during the lawsuit. Article 200 of the Turkish Civil Code states, "When the conditions change, the judge makes the necessary changes in the decision or lifts the measures taken if requested by one of the spouses." If interim alimony is not paid, it is requested to be collected through compulsory enforcement. The collection of the receivable cannot be subject to execution before the decision is finalized.

-Since interim alimony is a temporary measure, it continues as poverty or participation alimony after the decision is accepted and finalized for divorce. Interim alimony can be requested at any time during the litigation process without being subject to any time conditions.

3- Child Support: The amount of money that the spouse who does not have custody of the child is obligated to pay on a monthly basis to the spouse who has custody of the child for the expenses of the child's accommodation, education, health, etc.

Article 182 of the Turkish Civil Code states: "In arranging the personal relationship of the spouse who has not been given the right to use custody with the child, the child's interests, particularly with respect to health, education, and moral development, shall be taken into account. This spouse shall be obliged to contribute to the child's maintenance and education expenses in proportion to his or her means. The judge may decide, upon request, the amount to be paid in the form of maintenance for these expenses in the future, based on the parties' social and economic circumstances."

The parents' obligation to provide for the child continues until the child reaches adulthood (Article 328 of the Turkish Civil Code). The obligation to pay alimony ends if the child or the obligor dies, the alimony recipient waives the claim, or the child marries.

"In case the child becomes an adult, the child support automatically ceases. Supreme Court 12th Civil Chamber Case Number: 2006/15868 Decision Number: 2006/18864 Decision Date: 10.10.2006 '...Article 182/1 of the Civil Code states that "when the court decides on divorce and separation, it regulates the rights of the parents and the personal relationships with the child, after hearing the mother and father, if possible, and taking into account the thoughts of the guardian and the guardianship authority, if the child is under guardianship". According to the 2nd paragraph of the same article, "the spouse who is not given custody must contribute to the child's personal relationship, especially health and education expenses, in proportion to his/her means". In the settled case, since the alimony beneficiary M... İ... became an adult on April 15, 2002, the child support automatically ceased at that time. Because the child support regulated in Article 182 of the Civil Code is limited to the duration of custody. It should be determined with the population records when the child became an adult, that is, when the custody ended, and the alimony debt ended on that date.

However, if the child who has become an adult continues their education, the alimony obligation does not cease, but it is defined as assistance alimony instead of child support and must be requested in a separate lawsuit.

Supreme Court 3rd Civil Chamber Case Number: 2016/2465 Decision Number: 2016/3813 Decision Date: 14.03.2016 '...As a result, since the child support ends automatically with the child becoming an adult, the plaintiff does not have a legally protected interest in filing a lawsuit to request the cancellation of child support that automatically ended by law. In other words, there is no legal benefit for the plaintiff to file a lawsuit in this regard.

On the other hand, if the child continues their education after becoming an adult, they can file a new lawsuit to request assistance alimony. Although there is no lawsuit filed by the defendant regarding the request for assistance alimony, it was not correct to decide to continue the 400 TL child support as assistance alimony."

The spouse who is left with the child can claim child support on behalf of the child against the other spouse.

Turkish Civil Code Article 329- "The parent who actually takes care of the child can file a maintenance claim on behalf of the child against the other parent. In cases where the minor does not have discernment, the maintenance claim can also be filed by a guardian or a trustee appointed for the child. A minor who has discernment can also file a maintenance claim."

When deciding on child support, the child's care expenses and the financial capacity of the parent are determined. The issues related to the calculation of the alimony amount are regulated in Article 330 of the Turkish Civil Code.

Article 330- The amount of alimony is determined by taking into account the child's needs, the life conditions, and payment capacities of the parents. The child's income is also taken into consideration in determining the alimony amount. The alimony is paid in advance every month. The judge may decide on the amount of the alimony to be paid in the future, based on the social and economic conditions of the parties, if the alimony is decided to be paid in the form of periodic payments.

YARGITAY 3rd CIVIL CHAMBER Case Number: 2015/18094 Decision Number: 2016/2960 Decision Date: 01.03.2016 "... Therefore, taking into account the parties' realized social and economic conditions, and considering that a period of 2 years has passed from the date the initial alimony decision was made until the date of the lawsuit, the nature of the alimony, the age, education, and needs of the common child, as well as changes in economic indicators and the income status of the alimony debtor (defendant father), it is necessary to rule for a higher amount of contribution alimony in accordance with the fairness principle emphasized in Article 4 of the Turkish Civil Code, but the written justification does not justify the increase in contribution alimony for the common child in a small amount, and this requires reversal of the decision..."

-In case of non-payment of contribution alimony, it can be collected through compulsory execution. However, it cannot be executed before the decision becomes final.

4- Maintenance Support: It is regulated in Article 324 of the Turkish Civil Code. Everyone is obligated to provide maintenance support for their descendants, ascendants, and siblings who are at risk of falling into poverty.

"Everyone is obligated to provide maintenance support for their ascendants, descendants, and siblings who would fall into poverty if support was not provided. The obligation of siblings to provide maintenance support depends on their standard of living. The provisions on the maintenance obligations of spouses, parents, and children remain reserved."

Article 325 of the Turkish Civil Code states that "A maintenance support lawsuit is filed in consideration of the order of inheritance. The lawsuit is a request for assistance that is necessary for the plaintiff's livelihood and appropriate to the financial capacity of the other party. If it is contrary to equity to request maintenance support from one or more of the obligors, the judge may reduce or cancel their maintenance support obligation. The lawsuit can also be filed by official or public institutions that take care of the maintenance support claimant. The judge may, upon request, decide how much the maintenance support, which is ordered to be paid in the form of income, will be paid in the following years, taking into account the social and economic situations of the parties. The competent court is the court of the place of residence of one of the parties."

According to settled case law of the Court of Cassation, the essential consideration when determining the amount of alimony is that the alimony obligor will not suffer from a lack of livelihood. Court of Cassation 3rd Civil Chamber Case Number: 2013/15765 Decision Number: 2014/200 Decision Date: 14.01.2014 "... In order for maintenance support to be granted, it must be understood that the claimant will fall into necessity if he or she is not assisted. The term "falling into necessity" refers to a very distressing situation and economic conditions. The amount of maintenance support to be awarded is only intended to prevent such a distressing situation. Maintenance support does not have to provide for all of the claimant's livelihood and needs. A mature individual who continues his or her education but is unable to support himself or herself with his or her own labor and income may claim maintenance support from his or her parents until he or she completes his or her education. However, the primary consideration is not to cause financial difficulties for the persons who are obliged to provide such support. Therefore, the amount of alimony determined should be sufficient for the claimant's livelihood and proportional to the alimony obligor's income, taking into account the principle of equity stated in Article 4 of the Turkish Civil Code. It was seen from the examination of the case file that a subpoena was issued for the investigation of the economic and social situation of the defendant father, and it was determined in the response letter that the defendant went to another province by appointment. It was also observed that a decision was made based on the salary statement found in the case file without any further investigation..."

-The amount of maintenance support may also change depending on changing conditions. Proof of the alleged change in circumstances must be provided to the court.

Beril Akkan Kaçar

References:

Decision of the Court of Cassation General Assembly of Civil Chambe on 07.10.1998, 1998/2-656 E., 688 K.; 16.05.2007, 2007/2-275 E., 275 K.; 11.03.2009, 2009/2-73 E., 2009/118 K.

Decision of the 2nd Civil Chamber of the Court of Cassation, Case Number: 2021/989, Decision Number: 2021/2573, Date of Decision: 24.03.2021

Decision of the 3rd Civil Chamber of the Court of Cassation, Case Number: 2013/12156, Decision Number: 2013/14691, Date of Decision: 23.10.2013

Decision of the 2nd Civil Chamber of the Court of Cassation, Case Number: 2016/3102, Decision Number: 2016/10856, Date of Decision: 02.06.2016

Decision of the 12th Civil Chamber of the Court of Cassation, Case Number: 2006/15868, Decision Number: 2006/18864, Date of Decision: 10.10.2006

Decision of the 3rd Civil Chamber of the Court of Cassation, Case Number: 2016/2465, Decision Number: 2016/3813, Date of Decision: 14.03.2016

Decision of the 3rd Civil Chamber of the Court of Cassation, Case Number: 2015/18094, Decision Number: 2016/2960, Date of Decision: 01.03.2016

Decision of the 3rd Civil Chamber of the Court of Cassation, Case Number: 2013/15765, Decision Number: 2014/200, Date of Decision: 14.01.2014