WHAT IS ALIMONY AND HOW DOES IT END?

 

In legal terms, alimony can be defined as 'a monthly payment, ordered by a court, that a person makes to someone they are obligated to support and maintain.'.

The types of alimony regulated in Turkish law are: interim alimony, child support, spousal support, and maintenance alimony.

This article will attempt to explain alimony and its types in light of Supreme Court decisions. There are four types of alimony, which are regulated in the Family Law section of the Turkish Civil Code.

 

INTERIM ALIMONY

Interim alimony is a form of maintenance paid by one spouse to the other during a divorce proceeding, covering living and housing expenses, with the financial capacity of both spouses considered to ensure a balance between needs and expenses. This alimony provides temporary protection to the needy spouse – as it can only be requested while the divorce proceedings are ongoing – and aims to mitigate potential hardship they may face during the proceedings. Interim alimony is awarded by the judge ex officio or upon the request of one of the parties. The court makes its decision on this matter as an interim ruling.

While this or other types of alimony can be awarded, gender discrimination is not considered. The only criterion is the balance of financial means. Furthermore, the condition of greater fault is not required when awarding this type of alimony. Interim alimony continues until the divorce case is concluded and the decision becomes final. After the divorce case is finalized, interim alimony either ends completely or continues in the form of spousal support or child support.

When ruling on alimony, the judge must consider the criteria in the Turkish Civil Code and order a provisional alimony payment that will benefit the spouses in terms of housing, livelihood, and the care and protection of the children.

Interim alimony can be requested while a divorce case is ongoing. However, it can be requested even without a divorce or separation request if one spouse proves (with any kind of evidence) that they are justified in living separately. Turkish Civil Code Article 197/2: "If the interruption of cohabitation is based on a justifiable reason, the judge, upon the request of one spouse, shall take measures regarding the financial contribution one spouse will make to the other, the use of the dwelling and household goods, and the management of the spouses' property."

Interim alimony, which can be requested in this manner before a divorce case is filed, can be initiated as a separate lawsuit in the Family Court of the place of residence of one of the spouses. If minor children also reside with the requesting spouse, interim alimony can also be requested for the children. The amount of alimony can only be changed or terminated by the judge if circumstances change or if one of the spouses files an adaptation lawsuit. Thus, unless a new decision is made by the judge regarding interim alimony, it remains valid.

Article 200 of the Turkish Civil Code states that "When circumstances change, the judge shall make the necessary changes to the decision upon the request of one of the spouses, or shall revoke the measure if the reason for it has ceased to exist." This provision indicates that interim alimony can be modified if circumstances change. In this case, the competent court to evaluate how the interim alimony will be modified or whether it will be revoked is the court that ordered the interim alimony.

 

POVERTY ALIMONY

Alimony is a type of alimony that can be requested indefinitely by the spouse in need and likely to fall into poverty, from the other spouse in proportion to their financial capacity, after the judgment in a divorce case becomes final. It can be requested until the final decision is made, or it can be requested through a separate lawsuit filed within one year of the judgment becoming final.

A spouse who will fall into poverty due to divorce may request alimony from the other spouse, provided that they are not more at fault, in proportion to the other spouse's financial capacity, and without any time limit, as long as the conditions for terminating alimony as stipulated in Article 176 of the Turkish Civil Code are not met.

For alimony to be awarded to a spouse who will fall into poverty, it is not a requirement that the spouse obligated to pay alimony be at fault. However, the spouse receiving alimony must not be more at fault in the events leading to the divorce. This is defined in Article 175 of the Turkish Civil Code as follows : "A party who will fall into poverty due to divorce may request alimony from the other party, in proportion to the other party's financial capacity, for an indefinite period, provided that their fault is not more severe. The fault of the spouse obligated to pay alimony is not considered."

It is important to note that alimony is not awarded solely in favor of women. The law does not make such a distinction; it can also be awarded in favor of men with worse economic conditions.

Article 175 of the Turkish Civil Code regulates the conditions required when awarding alimony. These conditions are:

–The possibility that the other spouse will fall into poverty as a result of the divorce,

In the established jurisprudence of the Supreme Court of Turkey, it has been assessed that individuals who do not have sufficient income to cover essential expenses such as food, clothing, shelter, healthcare, transportation, culture, and education, which are deemed necessary for improving their material well-being, should be considered poor. The Supreme Court, however, makes an assessment based on the specifics of the case, stating that poverty does not disappear in situations such as the alimony recipient receiving a widow's or orphan's pension or working for minimum wage.

-The spouse lacks income to meet their needs such as food, culture, housing, transportation, etc

-The party requesting alimony must not be more at fault in the divorce. (Alimony can also be awarded in cases of equal fault.)

Based on an assessment of the parties' social and economic circumstances and degree of fault, the judge may decide that alimony should be paid by the spouse obligated to pay it, either in a lump sum or in installments. There is no obstacle to a spouse receiving alimony in addition to material and moral damages awarded in a divorce case. If the conditions are met, the judge must order alimony upon request.

HOW DOES ALIMONY PAYMENTS END?

Alimony payments automatically terminate upon the death or remarriage of the spouse entitled to them. They may be terminated by court order in cases such as the cessation of poverty, the recipient leading a life as if married without actually being married, or leading a dishonorable life. Furthermore, the judge may increase or decrease the amount of alimony if the financial circumstances of the parties change or if equity so requires. In practice, the spouse obligated to pay alimony must file a lawsuit to have the alimony order terminated.

 

CHILD SUPPORT

In a divorce case, alimony is the payment made by the spouse who is not granted custody to the other spouse to cover the care, education, and other expenses of the joint child. This alimony can be ordered by the judge upon request or ex officio without a request. Since the crucial aspect here is the care and expenses of the joint child, the degree of fault of either spouse in the divorce proceedings is irrelevant. If the court has previously ordered interim alimony, it will be ordered to be paid as child support upon the finalization of the divorce or separation decree.

Child support payments generally end when the child reaches the age of 18, gets married, or is declared an adult by a court decision. However, even if the child is an adult but continues their education, payments continue throughout their education.

WHO CAN REQUEST SUPPORT? Article 329 of the Turkish Civil Code states: “The parent who is actually caring for the minor may file a support lawsuit against the other parent on behalf of the child. In cases where a minor lacks the capacity to discern, a support lawsuit may also be filed by a designated guardian or trustee. A minor who possesses the capacity to discern may also file a support lawsuit.”

 

SUPPORT ALIMONY

According to Article 364 of the Turkish Civil Code , alimony is a type of maintenance provided upon request to descendants, ascendants, and siblings who are at risk of falling into poverty. It is awarded from the date of the lawsuit. This alimony, designed to protect needy family members, is requested from a family member whose economic situation allows it, to cover their care and other needs. In this type of alimony, requested according to the order of inheritance, for example, the person requesting alimony has the right to request it from descendants, but cannot request it from siblings. If there are no descendants, they can apply to their siblings.

 

WHAT HAPPENS IF ALIMONY IS NOT PAID?

The legislator has aimed to facilitate the collection of alimony by creating special provisions for its collection. We will examine these provisions comparatively below.

**Court judgments are subject to a 10-year statute of limitations. After 10 years, no action can be taken based on the judgment. However, judgments regarding alimony and its various types constitute an exception to this rule. Even if 10 years have passed since the court decision regarding alimony, it remains valid. However, in this case, even if the judgment itself is not time-barred, the alimony claims will be subject to the statute of limitations.

**If alimony is not paid by the spouse obligated to pay, the spouse entitled to alimony can initiate enforcement proceedings against the other spouse to collect the alimony. Due to the special nature of alimony and its various types of debt under the Enforcement and Bankruptcy Law and its status as a privileged claim, its collection will be prioritized compared to other ordinary claims. (Accumulated alimony claims are an exception to this rule and are subject to the same priority as other ordinary claims.)**

Therefore, the alimony creditor is among the first-priority creditors in the priority list to be prepared according to the Enforcement and Bankruptcy Law. Consequently, if the debtor's assets are sold through enforcement proceedings, the alimony claim will be paid first from the proceeds of the sale.

**According to Article 344 of the Enforcement and Bankruptcy Law, a debtor who fails to comply with court decisions regarding alimony shall be punished with up to 3 months of coercive imprisonment upon complaint.**.

**In other ordinary debts, only 1/4 of the salary is garnished if the debtor does not consent. However, in alimony debts, the entire monthly alimony amount is garnished from the salary without requiring the debtor's consent. Thus, in salary garnishment, the entire monthly alimony amount, regardless of its amount, will be deducted from the debtor's salary and paid first. Even if other garnishments are involved, the entire monthly alimony will be deducted from the salary and paid to the alimony recipient first. (Accumulated alimony debt is an exception to this, and in salary garnishment deductions, it is included in the queue along with other ordinary debts.)**

**In cases of alimony payments, even retirement pensions can be garnished.**.