Legal Memo on the Types of Alimony

Author

Uçar Hukuk & Danışmanlık Bürosu

Uçar Hukuk & Danışmanlık Bürosu

Nafaka Türleri

Alimony is regulated in the Turkish Civil Code and is a monthly financial support provided by one spouse to the other or to their child, or both spouses, who are in a more difficult situation while the divorce case is ongoing or as a result of the divorce case. It is obligatory to pay alimony by court order, usually in the form of a stipend. Alimony debt is tightly bound to the person resulting from family law. Therefore, alimony obligation ends with the death of both parties, and does not pass on to heirs.

Alimony is regulated under four separate headings in the Turkish Civil Code. These are:

  • Interim Alimony
  • Poverty Alimony (Wellfare Allowance)
  • Child Support
  • Maintenance Support

Interim alimony is a type of temporary alimony paid until the divorce case is finalized to provide support to the spouse or joint child who will fall into poverty due to the divorce case.

If the conditions are met upon request, the court orders interim alimony. When deciding on the amount of alimony, the court considers factors such as the economic situation of the paying spouse, the living conditions of the other spouse before the lawsuit, if it is established for the child, the child’s interests, and living standards. The criteria the court considers when determining the amount are as follows, according to a Court of Cassation decision:

“Davacı (kadın) ayrı yaşama hakkına dayalı olarak tedbir nafakası istemektedir.

Tedbir nafakasının niteliği ve yasal düzenleme gereği, davalı (koca), birliğin giderlerine gücü oranında katılmak zorundadır. Zira evlilik birliğinin korunması ve devamını sağlamak için eşlerin asgari ölçüde uyması gereken bazı yükümlülükler ve karşılamaları gerekli bazı ortak giderler mevcuttur. Bu giderlere örnek olarak, kira parası, yakıt parası, elektrik, telefon ve su parası gibi giderler gösterilebilir. Giderlere katılmada ise; eşlerin “güçleri” ölçü olarak esas alınmalıdır. Davacı (kadın)ın geliri bulunması, emekli olması, gelirlerinin davalıyla denk olması, hatta davalının gelirinden daha fazla olsa bile, davalı (koca)yı ortak giderlere katılma yükümlüğünden büsbütün kurtarmaz, bu durum sadece nafaka miktarının takdirinde etkili olabilir. Keza, davacı (kadın)ın belirli ve sürekli bir gelirinin olması, ona tedbir nafakası bağlanmasını engelleyici bir hal değildir. “

(Yargıtay 3. HD., E. 2009/19000 K. 2009/20481 T. 21.12.2009)

The law does not include a provision related to negligence in the provisions regulating interim alimony. Therefore, the judge orders alimony without paying attention to which spouse is more at fault when deciding on interim alimony. The important point here is whether interim alimony is necessary or not. In a Court of Cassation decision on this issue, the following expressions are included:

Kanunda, hakimin geçici bir önlem olarak tedbir nafakasına (TMK. md. 169) hükmedebilmesi için, tarafların kusurlu olup olmadıkları yer almamış, hangisinin daha az ya da daha çok kusurlu olduğunun belirlenmesi yönünde bir koşul öngörülmemiştir. Bu sebeple hakimin kusurlu olup olmadıklarına bakmaksızın, davanın başından itibaren, bu geçici önlemi alması gerekir. Bir tarafın kusurlu olması onun lehine Türk Medeni Kanunu’nun 169. maddesi çerçevesinde tedbir nafakasına hükmedilmesine engel teşkil etmez.”

(Yargıtay HGK 02.11.2011 tarihli 2011/2-533 esas, 2011/670)

As mentioned before, in interim alimony, spouses can also apply to the court for alimony before the divorce case is finalized. Article 195 of the Turkish Civil Code states that if the obligations arising from the marriage union are not fulfilled or there is a dispute on an important issue related to the marriage union, the spouses can request the intervention of the judge both separately or together. Likewise, Article 197 of the Turkish Civil Code states, “If living together is temporarily suspended for a just cause, the judge takes measures regarding financial contribution of one to the other, benefiting from the residence and household items, and the management of the spouses’ assets upon the request of one of the spouses.” According to these provisions, the parties can apply for interim alimony before the divorce case is filed.

In this case, in order to apply for interim alimony, the following conditions must be met:

  • Presence of a formal marriage
  • Separation of the spouses
  • The requesting spouse having a justifiable reason. (Such examples can be given as, the other party commits violence to the other spouse, the spouse has a relationship with another man/woman,the spouse neglects the requirements of the marriage union, etc.)

Wellfare Allowance is regulated in Article 175 of the Turkish Civil Code. According to this provision; the party who will fall into poverty resulting from the divorce may request alimony from the other party according to their financial capacity, unless being more at fault, and for indefinite duration.

CONDITIONS:

The spouse who will fall into poverty due to the divorce must request “poverty alimony” from the court. The court cannot decide on poverty alimony ex officio.

The fault of the requesting spouse should not be greater than the fault contributing to the end of marriage compared to the other spouse. Here, the fault means not that the alimony recipient spouse has no fault but that their fault is less than that of the other paying spouse.

The requesting spouse must fall into poverty resulting the divorce and must prove that they will have difficulty in maintaining their livelihood.

The paying spouse should not have any impediment to work and should be able to work. There should be no inconvenience resulting in incapability of working.

The amount of alimony should be proportional to the income of the paying spouse. It should not be too much or too little compared to the income of the paying spouse.

According to Article 178 of the Turkish Civil Code; “The rights arising from the termination of marriage due to divorce become time-barred one year after the divorce decree becomes final. If not requested in the divorce case, this right must be exercised within one year after the verdict. After the one-year period, the person cannot make this request. The right is barred by limitation.

If the aforementioned conditions are met, the court orders poverty alimony to be paid.

Although poverty alimony is generally indefinite, it may be terminated in some cases. These situations are regulated in Article 176/3 of the Civil Code;

While alimony ceases automatically in the event of the alimony recipient’s marriage or the death of one of the parties, if the alimony recipient lives as if they were married without actually being married, if their poverty disappears, or if they lead an indecent life, poverty alimony is abolished by court order.

Participation alimony is regulated in Articles 182 (3rd and 4th paragraphs) and 327 of the Civil Code.

It is the alimony paid by one spouse to the other spouse who receives the custody of the joint child at the end of the divorce case or separation case to contribute to the expenses of the joint child. At the same time, participation alimony is a type of alimony that guarantees the payment of the child’s obligations by parents and third parties. In participation alimony, the other spouse contributes to the health, education, housing, clothing, and similar expenses of the child according to their financial capacity. The purpose of participation alimony is to prevent the child’s existing economic situation, social life, and living standards from being adversely affected as much as possible by the divorce.

The starting date of participation alimony is the date the divorce is finalized.

Participation alimony is generally paid until the child reaches the age of majority. However, if the child’s profession and art are sufficient to support themselves, alimony can be terminated before the child reaches adulthood. In addition, assistance alimony may also be considered when the child reaches the age of majority.

Participation alimony can also be adjusted according to changing conditions.

Maintenance Support is a type of alimony is paid by descendants, ancestors, or siblings who are financially stable to the relative who is in need of alimony support. Assistance alimony is generally a type of alimony between divorced spouses or for the joint children of divorced spouses, but Maintenance Support is a type of alimony contrary to this. People entitled to receive assistance alimony and those who are responsible for providing it are listed in the law as numerous clauses.

In the decision of the 3rd Civil Chamber of the Court of Cassation; “In this context, a mature individual who continues his education and is unable to sustain himself with his own labor and income can request assistance alimony from his parents until he completes his education. When determining the amount of assistance alimony by the court; the needs of the plaintiff and the income of the defendant should be taken into consideration together, and the principle of equity regulated in Article 4 of the Turkish Civil Code should also be taken into account.

According to AŞIK, Assistance alimony is a family law institution aimed at ensuring that individuals whom lost their ability to work due to reasons such as unemployment, illness, old age, and disability, and who cannot provide for themselves due to this poverty, are provided with assistance by the closest relatives specified in the law.

When the verdict on Maintenance Allowance is given, one of the most important factors altering the decision, is that the person receiving the alimony is in need of assistance and lives in poverty. While determining this, I believe that Verdicts of the Court of Cassation and the doctrine should be taken into consideration.

For detailed information on the subject, you can contact us here.

You can get detailed information about our office’s work in the field of Family Law from our website.

İnan ÖZTİMUR

Uçar Law & Consultancy Office

Translation: Av. N. Ayça ATALAY & Stj. Av. Baver UÇAR

Diclaimer:

This article is prepared by Uçar Law & Consultancy Office for information purposes only, and the information and visual materials contained in it cannot be used, reproduced, published, transmitted to a third party or translated without prior written permission from us. This legal memorandum is not a comment or legal opinion and was prepared on the publication date and our attorney’s office is not responsible for its failure to
update continuously.”

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