Alimony, in its literal sense, means “the entirety of necessary things for subsistence, livelihood.” Although in society, those who demand alimony are generally known as spouses and children, siblings and ancestors can also claim alimony. Therefore, alimony can be defined as the obligation of economically needy spouses to provide assistance to each other, descendants to ancestors, ancestors to descendants, and siblings to siblings.
Since the family forms the basis of social life and the well-being of the family, the preservation of family unity and its continuity, the issue of alimony is detailed in the second part of the Turkish Civil Code, which constitutes Family Law.
According to the Turkish Civil Code No. 4721, the types of alimony are as follows:
- 1) Precautionary Alimony
- 2) Poverty Alimony
- 3) Participation Alimony
- 4) Assistance Alimony
1- PRECAUTIONARY ALIMONY
Precautionary alimony, in accordance with Article 169 of the Turkish Civil Code, is a temporary obligation to provide the necessary measures for housing, subsistence, care, and protection for spouses and children during divorce or separation proceedings.
Who Can Request Precautionary Alimony?
Precautionary alimony is a temporary obligation aimed at maintaining the standard of living that was maintained during the marriage while the case is ongoing. Therefore, one of the spouses who will fall into poverty due to the lawsuit can request precautionary alimony from the other spouse for each child. Even if the parties do not request precautionary alimony, the judge can order it based on the specific circumstances of the case and the economic situation of the parties.
Amount of Precautionary Alimony
The amount of precautionary alimony is determined by the judge. However, if the party requesting alimony has specified an amount, the judge cannot award an amount exceeding this, in accordance with the principle of adherence to the request. The party objecting to the awarded precautionary alimony must prove that the other party will not fall into poverty.
According to established jurisprudence of the Turkish Court of Cassation, factors such as the obligation to pay alimony being a convict, detainee, mentally ill, or more at fault do not affect the alimony obligation. Income insufficiency may not prevent the awarding of precautionary alimony but can be taken into consideration when determining the amount of alimony. (Decision of the Supreme Court of Appeals dated 19/04/2006, 2006/2-137 E., 2006/211 K.)
When Does Temporary Alimony End?
Temporary alimony, as a temporary measure, continues from the date of the lawsuit until the finalization of the decision. If a divorce case has been filed, or if a later case is combined with the original case, interim alimony is established by the court through an interim decision as of the date of the original case’s filing. The party without a request for temporary alimony can also make a request during the course of the trial. Temporary alimony granted in divorce or separation cases ends from the date when the decisions related to these cases become final. After the divorce case becomes final, it can either continue in the form of spousal support and child support or be completely terminated.
Enforcement of Temporary Alimony
The court orders the payment of temporary alimony by issuing an interim decision. Since interim decisions are not considered judgments and do not contain the elements of enforcement as defined in Article 68 of the Execution and Bankruptcy Law, they cannot be subject to enforcement if not paid. Failure to pay the temporary alimony ordered by the court will result in non-judicial enforcement proceedings. It is possible to object to non-judicial enforcement proceedings related to temporary alimony within the legal timeframe.
2- ALIMONY FOR POVERTY
Alimony for poverty is regulated under Article 175 of the Turkish Civil Code, which states: “The party who will fall into poverty due to divorce may request alimony indefinitely, provided that their fault is not heavier, in proportion to the financial capacity of the other party. The fault of the alimony debtor is not sought.”
Alimony for poverty is awarded to ensure that one of the spouses does not become financially poorer than before the divorce and in comparison to the other spouse in terms of meeting basic needs such as improving their material and spiritual well-being, housing, nutrition, and health after divorce.
Requirements for Alimony for Poverty
To be eligible for alimony for poverty, one of the parties must make a request.
Alimony for poverty cannot be awarded by the judge ex officio without a request. It is possible to make a request for alimony until a final decision is reached. The alimony request can be made within the divorce case or separately by filing a separate lawsuit. However, it should be noted that the lawsuit for alimony for poverty filed after the divorce case is subject to a one-year statute of limitations from the date of finalization of the divorce decision, as per Article 178 of the Turkish Civil Code.
The person requesting alimony for poverty must fall into poverty due to divorce.
The social and economic status of the parties, the presence of regular income, and assets are determining factors in whether they will fall into poverty after divorce.
The requesting party should be less at fault or faultless compared to the other spouse.
If the requesting party is more at fault than the other spouse, even if they have fallen into poverty, alimony cannot be awarded in their favor.
The fault of the alimony debtor is not considered.
The alimony to be awarded should be proportional to the financial capacity of the alimony debtor spouse.
Even if the other conditions are met, the amount of alimony to be awarded should not exceed the payment capacity of the alimony debtor and should be proportionate to their financial capacity. In determining the alimony debtor spouse’s payment capacity, the needs and living conditions of the persons they are obliged to support should also be taken into consideration. The parties can agree not only on whether alimony will be paid but also on the amount and currency of the payment.
Court Responsible for and Authorized in Poverty Alimony
If poverty alimony is requested together with a divorce case, the family court responsible for and authorized to hear the divorce case is the one. If it is pursued with a separate case after the divorce case, according to Article 177 of the Turkish Civil Code and Article 4 of the Family Courts Law, the family court where the recipient of alimony resides is responsible and authorized.
Duration of Poverty Alimony
Poverty alimony is indefinite according to Article 175 of the Turkish Civil Code. However, Article 176/III of the Turkish Civil Code regulates the situations in which alimony can come to an end. Since alimony is closely linked to the recipient and the alimony debt is also closely tied to the individual, it automatically ends with the death of the alimony recipient or the debtor. Therefore, in the event of the spouse’s death, the heirs cannot make any claims against the alimony debtor. However, there is no obstacle to the heirs requesting the alimony payments that were due until the time of death. Another circumstance that automatically ends alimony obligation is the remarriage of the alimony recipient. Although the remarriage of the alimony debtor does not eliminate the alimony obligation, it can be a reason for a reduction, taking into account the financial obligation. The termination of the alimony obligation in the form of irat (monthly payments) through a court decision occurs in cases where the alimony recipient lives as if married without actually getting married, when poverty ceases, or when living a dishonorable life.
Payment Method and Enforcement of the Poverty Alimony Decision
According to Article 176 of the Turkish Civil Code, the judge may order poverty alimony to be paid in a lump sum or in installments. While the payment method is generally at the discretion of the judge, the parties can reach an agreement on this matter, provided that it does not violate public order, morality, and mandatory legal rules. This agreement made by the parties is valid with the approval of the judge, as stipulated in Article 184/b.5 of the Turkish Civil Code.
If the alimony debtor does not make payments despite the finalization of the alimony amount as per the court’s decision, enforcement proceedings with a judgment can be initiated against them. Additionally, in accordance with Article 344 of the Execution and Bankruptcy Law, upon the complaint of the creditor, the debtor who fails to fulfill the alimony obligation may be sentenced to imprisonment for up to three months, making criminal liability a possibility.
3- CONTRIBUTORY ALIMONY
When a marriage ends in divorce and custody is not awarded to one party, the obligation of the party without custody to contribute to the maintenance and expenses of the common child does not cease. The party without custody also has an obligation, in proportion to their financial capacity, to contribute to the child’s maintenance expenses, as per Article 182/II of the Turkish Civil Code. This payment, known as contributory alimony, serves the purpose of supporting the child’s material and moral development and economically meeting their needs for development.
Who Can Request Contributory Alimony
According to Article 329 of the Turkish Civil Code, a child with discernment, a guardian, a court-appointed custodian, or a spouse who is actually taking care of the child can request contributory alimony. Even if there is no request, the judge may decide to grant contributory alimony ex officio in order to protect the child’s best interests and benefits.
Amount of Contributory Alimony
Taking into consideration the high benefit of the child, their education, care, nutrition, the development of their social activities, and, in short, the necessary maintenance expenses for their material and moral development after divorce and separation should be covered. Therefore, contributory alimony is determined by the judge in proportion to the socio-economic conditions of the parties. When determining contributory alimony, the financial capacity of the parent obligated to pay alimony, the child’s needs, age, and the economic conditions of the day are taken into account.
Duration of Contributory Alimony
Contributory alimony is generally initiated upon the finalization of the court decision and continues until the child reaches adulthood. However, according to Article 328/II of the Turkish Civil Code, “If the child is of age but still pursuing education, the parents are obligated, to the extent expected from them based on their circumstances, to support the child until their education is completed.” Therefore, if the child is of age but still pursuing education, contributory alimony continues until the completion of their education. In addition to this, the child’s marriage, the death of the alimony debtor, and the child becoming legally an adult according to Article 12 of the Turkish Civil Code are also reasons for terminating contributory alimony.
Payment Method and Enforcement of Participation Alimony
According to Turkish Civil Code Article 330/II, participation alimony is paid in advance every month. Participation alimony starts to be paid once the court decision becomes final. If, despite the final court decision, the alimony debtor does not make full and complete payments, an enforcement proceeding can be initiated against the debtor.
Additionally, in accordance with Turkish Execution and Bankruptcy Law Article 344, upon the complaint of the creditor and the presence of other necessary conditions, if the alimony obligation is not fulfilled by the debtor, the court may order a detention of up to three months for the debtor.
4) ASSISTANCE ALIMONY
According to Turkish Civil Code Article 364, “Everyone is obliged to provide alimony to their ascendants, descendants, and siblings who would fall into poverty if not assisted. The obligation to provide alimony to siblings is contingent upon their well-being. Provisions regarding the support obligations of spouses and parents are reserved.”
To request assistance alimony, there must be a risk of falling into poverty if assistance is not provided. A person who cannot provide the necessary means (such as income, property, etc.) for their own livelihood is considered to have fallen into poverty.
Who Can Request Assistance Alimony?
Ascendants, descendants, and siblings of any degree who would fall into poverty if not assisted can request assistance alimony. These individuals are also alimony obligors, and assistance alimony can be requested from them. In other words, the alimony obligation is a two-way institution, and the persons listed in Turkish Civil Code Article 364/I are both alimony creditors and alimony obligors. For example, under certain conditions, a grandchild may request assistance alimony from their grandfather, and vice versa. However, in every case, the person requesting assistance alimony must prove that they would fall into poverty if not assisted.
Court Responsible for Alimony Cases
According to Turkish Civil Code Article 365/VI and the Family Courts Law, alimony cases are filed in the family court of the defendant’s place of residence.
Amount of Alimony
The amount of alimony is determined by the judge, taking into account the amount necessary for the sustenance of the claimant, provided that it does not exceed the financial capacity of the obligor. The amount determined by the judge cannot exceed the obligor’s ability to pay.
Duration of Alimony
Alimony starts to accrue from the date the lawsuit is filed, in accordance with Law No. 15/15 dated November 28, 1956. It terminates automatically upon the death of the obligor or the recipient. If the financial situation of the alimony recipient has improved or if the obligor’s ability to provide support and assistance has ceased, the court may terminate the alimony through a court decision.
Adjustment Of Alımony Amount
Changes in economic conditions, purchasing power of money, marital status of the parties, and changes in the social and economic status of the parties may warrant an adjustment of the awarded alimony amount when fairness demands it.
Adjustment of Alimony Amount in Spousal Alimony Cases
In accordance with Turkish Civil Code Article 176/IV, “In cases where the financial situations of the parties change or when fairness demands, a decision may be made to increase or decrease the alimony.” The legislator has provided the opportunity for an increase or decrease in the alimony amount in cases where the financial situations of the parties change or when fairness demands it. Therefore, the parties can initiate a lawsuit requesting an adjustment of the alimony amount. For example, if the obligor spouse has lost their job or entered into a new marriage with children, and can prove that their financial capacity does not allow them to pay the current alimony amount, they can request the court to adjust the alimony amount based on their ability to pay.
Modification of Alimony in Participation Alimony
According to Article 331 of the Turkish Civil Code, “In case of a change in circumstances, the judge may, upon request, re-determine the amount of alimony and may also terminate alimony.” The recipient of alimony, whether it be a child or a parent to whom custody is granted, can request an increase in alimony by proving the occurrence of a new and significant event that renders the current participation alimony insufficient to meet the needs of the child. For example, an increase in expenses due to the child attending a prep course (dershane) can be a valid reason for modifying alimony based on the specific circumstances of the case.
Taking into account the economic conditions of the day, it is also possible to request that the amount of alimony determined by the court be increased annually by a certain percentage (e.g., based on the annual Consumer Price Index, Exchange Rate Increases, Gold Prices Index, or inflation rate). Parties to a mutual divorce agreement may also choose to link the alimony increase rate to a specific index. Such a request can help prevent potential future litigation for alimony modification due to the alimony amount being insufficient to cover the needs.
CONCLUSION
Alimony claims and cases are commonly encountered in our society. It is crucial for the alimony recipient to carefully specify their demands, as this significantly affects the course of the case. The alimony obligor should also be aware of their responsibilities and act with the understanding of potential consequences in case of non-compliance. Furthermore, considering that both parties have the right to request and litigate for the increase, decrease, or termination of alimony, it is advisable to engage the services of a family law expert attorney to navigate this sensitive issue and prevent potential loss of rights.
