What are the consequences of failing to fulfill alimony obligations?

Consequences of Failure to Fulfill Alimony Obligations ​​​​​​​​

SELF

The concept of family is protected by our laws, primarily our Constitution. The protection of society is aimed at by legislators through the regulation of the rights and obligations of spouses and children. Failure to fulfill the obligation of alimony, which is related to public order, will cause disruptions in the structure of society. The fundamental rights and freedoms of individuals protected by law will be violated.

Alimony is a system that has been in operation since Roman times. In Roman times, the father of the family (pater familias) had unlimited rights over his wife and children. Despite this, even in Roman times, the concept of alimony was considered, and regulations were introduced to protect the social structure. In Europe, the French Revolution led to the adoption of an egalitarian perspective, and the advancement of women's human rights was prioritized by legislators. In Turkish society, the concept of alimony has continued to exist both before and after the adoption of Islam. Today, the concept of alimony is addressed in the Constitution of the Republic of Turkey, the Turkish Civil Code No. 4271, and other relevant legislation.

Keywords: alimony, breach of alimony obligation, consequences of non-payment of alimony

Entrance

The word alimony, in its literal meaning, refers to the entirety of things necessary for sustenance; it means livelihood. According to the Turkish Dictionary (TDK), the legal meaning of alimony is the monthly payment awarded by court order to those whom one is obligated to support.[1] It is not possible to give a single definition of alimony within its broad meaning. According to the doctrine, alimony is defined as the obligation of spouses to help each other, descendants to descendants, descendants to descendants, and siblings to siblings when they are in need.[2]

Protecting the family means protecting society. Legal regulations have been enacted to protect the family, a matter concerning public order. One of the most well-known aims of alimony is to prevent one spouse from becoming helpless after the dissolution of marriage. By codifying alimony into law, society has been protected. Legal regulations have been established to ensure unity and prevent the disruption of public order when individuals act according to their own moral or religious beliefs.

This article will explain the structure of alimony, types of alimony, available remedies for non-payment of alimony, enforcement proceedings for unpaid alimony, penalties for non-payment (coercive imprisonment), and legal procedures in cases of non-payment of alimony.

 

CHAPTER ONE

1. Structure of Alimony

The word alimony is derived from the word infak, which means support, provision, going, spending.[3] Alimony is a debt, a receivable, that the obligor must pay to the rightful owner. The reasons for establishing a debt relationship are regulated in the law. According to the law, a debt relationship arises from a legal transaction, a tort, unjust enrichment, or a contract. Alimony, which arises from sources other than these, has its own unique structure. Alimony is a type of debt specific to family law, originating from debt relationships arising from other reasons.

The principle of freedom of will, which governs other debt relationships, is not recognized in alimony debt relationships. Even if the parties have entered into an agreement between themselves, it must be approved by a judge in accordance with the relevant provisions of the Turkish Civil Code in order to be implemented.

Distinguishing alimony from other types of debts and charting a legal course accordingly during litigation prevents clients from losing their rights. The distinction between alimony and other types of debts is explained below.

1. Alimony is a matter of public order; other types of debt are related to the parties based on contracts they have entered into.
2. Alimony payments are a strictly personal right and therefore cannot be transferred; other types of debts, according to Article 183 of the Turkish Code of Obligations, are not transferable "due to the nature of the contract or the work."

Unless otherwise specified, the creditor may transfer the debt to a third party without the debtor's consent

can be transferred."

3. Since alimony payments are a right strictly attached to the individual, they cannot be pledged; for other types of debts, according to Article 954 of the Turkish Civil Code, "claims and other rights that can be transferred to another person may be pledged."
4. Alimony payments are non-compensatory; other types of debts can be offset according to Article 139 of the Turkish Code of Obligations.
5. Alimony entitlements cannot be released in advance, and alimony entitlements cannot be waived in advance.
6. Alimony payments are not subject to seizure; other types of debts may be seized in accordance with the relevant provisions.
7. If the alimony recipient dies, the obligation to pay alimony does not pass to the heirs because it is a right strictly attached to the individual. However, if there is a lump-sum alimony payment in the estate or if it was supposed to be paid in installments but wasn't, the heirs can demand the alimony from the obligated party.

 

PART TWO

1. Types of Alimony
2. Support Alimony

Maintenance support is regulated in Article 364 of the Turkish Civil Code. Maintenance support is not a type of alimony awarded as a result of a divorce case. Therefore, its content is not discussed in this text.

 

Turkish Civil Code Article 364: “Everyone is obligated to provide maintenance for their ancestors, descendants, and siblings who would fall into poverty if they did not receive assistance.”.

Siblings' obligation to provide for their siblings depends on their financial situation.

The provisions regarding the maintenance obligations of spouses and parents are reserved

2. Maintenance Support

Maintenance support refers to the obligation of spouses to provide for and support their children. Types of maintenance support include spousal support, child support, and provisional support. Below, these types are examined, and the consequences of non-fulfillment of maintenance obligations are explained.

1. Interim Alimony

Interim alimony is a type of temporary support. According to Article 185 of the Turkish Civil Code (TMK): “Marriage establishes a marital union between spouses. Spouses are obligated to jointly ensure the happiness of this union and to jointly care for, educate, and supervise their children. Spouses are obliged to live together, remain faithful to each other, and provide mutual support.” As understood from the provision, it is a temporary support payment made to the party with custody until the divorce case is finalized, due to the possibility of one of the parties falling into poverty, or for the use of minor children under the age of eighteen. This alimony ends with the conclusion of the divorce case. Interim alimony is not bound by the parties' requests. The judge considers interim alimony ex officio. The court that will rule on this type of alimony is the court where the divorce case took place.

1. Child Support

One of the consequences of a divorce case for children is child support. Being divorced does not end the obligation of the mother or father who is not granted custody to contribute to the child's upkeep.[4] The mother or father who is granted custody is obliged to cover the child's expenses. However, according to Article 182/2,c. 2 of the Turkish Civil Code, the other party who does not have custody rights is also obliged to contribute to the upkeep in terms of their ability to cover the expenses. The judge may decide on child support ex officio and is not bound by the parties' request for child support from the court. If the parties state that they do not request child support, the judge will still order child support if he deems it appropriate.

The amount of child support is determined according to the financial capacity of the paying party and the needs of the child. If the non-custodial parent does not have the financial means to pay child support, then no child support award will be given.

According to Article 328 of the Turkish Civil Code, child support payments begin upon the finalization of the court decision and, as a rule, continue until the child reaches adulthood. If the child continues their education after reaching adulthood, child support payments also continue until the education ends.

iii. Alimony (Poverty Support)

According to Article 175 of the Turkish Civil Code: "A party who will fall into poverty due to divorce, provided that their fault is not more severe, may request alimony from the other party indefinitely, in proportion to the other party's financial capacity, for their livelihood."

With this provision, the legislator has stated that alimony can be requested based on the principle of solidarity between spouses after divorce.

According to Article 175 of the Turkish Civil Code, the conditions for alimony payments are as follows:

– Upon request from one of the parties,

– The spouse requesting the treatment must be blameless or less at fault

– The spouse requesting alimony may fall into poverty

– The alimony to be awarded should be proportionate to the financial capacity of the spouse who will be paying it.[5]

The competent court for alimony claims is the court handling the divorce case if the claim was made during the divorce proceedings. If a separate alimony claim is filed after the divorce, the competent court is the family court of the plaintiff's (the alimony recipient's) place of residence.

Alimony is a type of alimony that is indefinite. However, according to Article 176 of the Turkish Civil Code, it can be terminated by the court in certain circumstances. Alimony awarded in the form of periodic payments automatically ceases upon the recipient's remarriage or the death of one of the parties. If the recipient is not married but lives as if married, or if their poverty has somehow been eliminated, or if, as the law states, they are leading a dishonorable life, the alimony is terminated by a court decision.[6]

 

CHAPTERTHREE​ ​​​​​

1. c) General Consequences of Non-Fulfillment of Alimony Obligations

Alimony is an obligation imposed on the alimony payer by the court, and this obligation must be fulfilled. If alimony is not paid, the legal remedies stipulated in the law can be pursued. These legal remedies are explained below.

1. Enforcement Proceedings in Case of Violation of Alimony Obligation

In cases of non-payment of alimony, the first course of action is to initiate enforcement proceedings against the person violating the alimony obligation. To stay informed about the latest developments regarding enforcement procedures, it is necessary to keep up-to-date with the relevant legislation.

Since alimony is a responsibility imposed on an individual by the court, enforcement proceedings based on a court judgment can be initiated. Alternatively, enforcement proceedings without a court judgment, known as general attachment, can also be pursued. Different situations arise if alimony is not paid despite the creditor's application for either enforcement based on a court judgment or enforcement without a court judgment.

– If the alimony creditor has initiated enforcement proceedings based on a court judgment, the person violating the alimony obligation may request a stay of execution.

– If the alimony creditor has initiated enforcement proceedings without a court order, the person violating the alimony obligation is given a 7-day period. Within this period, they can pay the debt and fulfill their responsibility. Another option is to object to the debt. If the debtor objects, the alimony creditor can file a lawsuit in the general courts to have the objection dismissed, or request the lifting of the objection from the enforcement court. The time limit for filing a lawsuit to have the objection lifted in the enforcement court is 6 months. The time limit for filing a lawsuit to have the objection dismissed in the general courts is 1 year.

Following these stages, the seizure phase begins. The alimony creditor has the right to participate in the relevant seizure. At the end of the seizure, the alimony creditor is the privileged creditor and ranks third in the order of priority.

Throughout all these stages, if the person obligated to pay alimony fails to do so, they will be sentenced to coercive imprisonment according to Article 344 of the Enforcement and Bankruptcy Law.

2. Penalty for Non-Payment of Alimony: Coercive Imprisonment

If enforcement proceedings for alimony payments prove unsuccessful, a complaint regarding the breach of alimony obligations can be filed with the enforcement court.

According to Article 344 of the Enforcement and Bankruptcy Law , " If a debtor fails to comply with alimony decisions , upon the complaint of the creditor , a decision of coercive imprisonment of up to three months shall be made. If the debtor complies with the decision after the commencement of the imprisonment , the debtor shall be released. "

If the debtor has filed a lawsuit requesting the termination or reduction of alimony , the decision to impose coercive imprisonment may be made later , taking into consideration the reasons put forward . ”

In this case, the law prescribes a specific prison sentence. As explained above, if alimony is not paid, the alimony obligor is subject to enforcement proceedings, which proceed step by step. These steps constitute the conditions for imposing a coercive imprisonment sentence.

– Firstly, if the person obligated to pay alimony fails to fulfill their court-ordered responsibility, enforcement proceedings must be initiated.

– The alimony debt must continue throughout the enforcement period.

– The alimony debtor must have failed to pay the debt despite having been initiated to pay it through enforcement proceedings.

– The alimony debtor must have received a payment order requiring them to pay the alimony.

– There must be no event that would render the coercive imprisonment sentence legally moot.

– There must not have been a lawsuit filed regarding the termination or reduction of alimony payments.

If these conditions are met, the alimony debtor will be sentenced to coercive imprisonment.

3. Legal Procedures in Cases of Non-Payment of Alimony

In case of non-payment of alimony , the complaint is made according to Article 346 of the Enforcement and Bankruptcy Law; “ The enforcement court decides on disciplinary or coercive imprisonment according to the provisions of this law. These matters falling within the jurisdiction of the enforcement court cannot be combined with criminal cases heard in other courts . Cases related to the crimes included in this Chapter are heard in the enforcement court .”

The competent and authorized enforcement court is the enforcement criminal court in the place where the judgment is rendered and the enforcement proceedings are initiated. To initiate the case, the alimony creditor must apply to the competent and authorized enforcement criminal court with a personal petition.

Remember that every event and situation is evaluated and concluded within its own context. To obtain more detailed information, manage the process effectively, and avoid any loss of rights, you can contact our office.

Lawyer – Canan TILAVER

Law Faculty Student – ​​Zeynep Sıla ÇARDAKBAŞI   

                                                                                                                                                              

 

 

SOURCE :

[1] https://sozluk.gov.tr ​​Access Date: 15.05.2024

[2] Ejder Yılmaz, Law Dictionary, Seçkin Kitabevi, Ankara 1985, p. 533.

[3] Burçak ÇİTAK, Alimony Obligation Between Spouses, Master's Thesis, Department of Private Law, Institute of Social Sciences, Istanbul University, Istanbul, 2016, p. 3.

[4] Prof. Dr. Mustafa DURAL, Prof. Dr. Tufan ÖĞÜZ, Prof. Dr. Mustafa Alper GÜMÜŞ, Turkish Private Law Volume III Family Law, Filiz Kitabevi, Istanbul, 2022, p. 150.

[5] Prof. Dr. Mustafa DURAL, Prof. Dr. Tufan ÖĞÜZ, Prof. Dr. Mustafa Alper GÜMÜŞ, Turkish Private Law Volume III Family Law, Filiz Kitabevi, Istanbul, 2022, p. 158.

[6] Prof. Dr. Mehmet Erdem, Family Law, Seçkin Publishing House, 2nd Edition, Ankara, p. 210.