The legislator, in Article 364/1 of the Turkish Civil Code, stipulates that “Everyone is obligated to pay alimony to their ancestors, descendants, and siblings who would otherwise fall into poverty.” This obligation imposes on certain blood relatives the obligation to pay alimony to relatives who fall into poverty. As can be understood from this provision, the Turkish Civil Code stipulates certain limitations and conditions for alimony to be eligible. The first of these limitations and conditions is that the persons eligible to claim alimony are limited only to their ancestors, descendants, and siblings, and this limitation cannot be extended. Therefore, relatives who are not among the blood relatives listed in the law, such as uncles, aunts, or aunts, or relatives who are not related by blood, such as daughters-in-law and fathers-in-law, are not legally obligated to pay alimony and cannot claim alimony.
Court of Cassation, 3rd Civil Chamber, Date: 06.05.2008, Merits No: 7185, Decision No: 8276;
“…Since there is no such lineage between the plaintiff daughter-in-law and the defendant father-in-law, the decision regarding the alimony award for the plaintiff is incorrect…”[2]
It should be noted that those who have the means to receive maintenance from a person obligated to care for the alimony claimant (from a spouse or husband, or from the father or mother of a minor child) cannot request maintenance. Therefore, the alimony recipient should first request maintenance from the person obligated to care, but if they cannot obtain a result, they should then request maintenance. This ancillary nature of maintenance is regulated in Article 364/3 of the Turkish Civil Code, which states, “The provisions regarding the maintenance obligations of the spouse and the mother and father are reserved.” On the other hand, in the event of a divorce, a spouse who becomes impoverished may request alimony from the other spouse, but as a rule, they cannot request alimony. However, exceptionally, if the alimony received is insufficient to relieve the spouse of their financial hardship, they may request alimony.
2nd Civil Chamber of the Supreme Court of Appeals, Merits No: 1993/10879, Decision No: 1993/11757;
“A dependent or descendant whose poverty alimony received pursuant to Article 144 of the Civil Code does not relieve him of his need may also request alimony pursuant to Article 315 of the Turkish Civil Code.”[3]
On the other hand, for descendants and ancestors to claim alimony, the lineage must be established. According to Article 282 of the Turkish Civil Code, the lineage between a child and the mother is established at birth. From the maternal perspective, the lineage between a child born out of wedlock and the mother and her relatives is automatically established at birth. Therefore, alimony can be requested from the mother and relatives on the mother’s side without the need to establish the lineage. However, in order to claim alimony from the father or paternal relatives, Article 282/2 of the Turkish Civil Code. According to Article 10 of the Civil Code (TCC), the lineage must first be established between the illegitimate child and the father through one of the following methods: marriage to the mother (TCC Art. 292), recognition (TCC Art. 295 et seq.), or paternity ruling (TCC Art. 301 et seq.). More clearly, for the existence of a support relationship, there must be a recognition or paternity ruling between the father and a child born out of wedlock, and biological blood relationship alone is not considered sufficient.
Court of Cassation 2nd Civil Chamber, Merits No: 2007/578, Decision No: 2008/913;
“…The plaintiff’s alimony claim is based on Article 364 of the Turkish Civil Code. According to this article, for alimony to be awarded, a lineal or ancestral relationship must exist between the plaintiff and the alimony payer. Since the lawsuit establishing lineage between the plaintiff and the defendant has been dismissed and this section has become final, it is not appropriate to hold the case liable for alimony…”[4]
At this point, it is worthwhile to address whether it is possible to request alimony in cases involving an adopted child. The Court of Cassation acknowledges that an alimony obligation arises between the adoptive parent and the adopted child. Accordingly, just like the adopted child, the adoptive parent can also request alimony from their adopted child, as the alimony obligation between these individuals is reciprocal. However, since no lineage has been established between the adoptive parent’s lineal or ancestral parent and the adopted child, there are no alimony obligations. On the other hand; The alimony obligations of the adoptive parent and the adopted child to their own descendants, ascendants, and siblings will not be affected by the institution of adoption and will continue.
Court of Cassation 2nd Civil Chamber, Merits No: 9252, Decision No: 927;
“…If the conditions are met, in accordance with Articles 257 and 315 of the Turkish Civil Code, the adopter may request alimony from the adoptee, and the adoptee may request alimony from the adopter…”[5]
Court of Cassation, 2nd Civil Chamber, Date: 17.03.1987, Merits No: 1425, Decision No: 2234;
“…By concluding an adoption agreement, the rights and obligations of the adopted child’s parents are transferred to the adopter. (Article 257). If assistance is not provided, parents who fall into poverty may claim alimony from their descendants, and the children, in other words, the parents, may also claim alimony from their parents. (Article 315). An alimony lawsuit is filed against those responsible for it according to the order of inheritance. (Article 316). The adopted person’s right to inherit from their family (i.e., parents and siblings) is not lost. (Article 257). If all the above-mentioned items are considered together, and the conditions are met, the adopted child can also claim alimony from his parents. The adopted person’s right to inherit from his parents is not lost. Since the status of heir continues, the alimony obligation or right to alimony is mutually reserved. On the other hand, adoption does not prevent the maintenance of the parents. The obligation passes to the adopter. However, if the adopter becomes incapacitated, the adopted child may request alimony from their parents…”[6]
Regarding the siblings’ obligations for support, the law requires that the siblings be well-off. Furthermore, the fact that the siblings are half-blood relatives is considered sufficient for the alimony obligation. Similarly, the fact that the siblings were not born in marriage is also irrelevant for the alimony obligation; however, if the child is recognized by the father or paternity is determined by a court decision, the child becomes subject to a mutual alimony obligation with the children born in marriage. Furthermore, since no lineage is established between an adopted child and their descendants, the alimony obligation will not apply between these individuals and the adopted child.
The second requirement for support is that the beneficiary will fall into poverty if assistance is not provided. It is important to note that the need to request support is not a requirement at the time of the request; it is sufficient that the risk of falling into poverty if assistance is not provided is clearly understood.
Supreme Court of Appeals 3rd Civil Chamber, Date 10.03.2009, Merits No: 2891, Decision No: 3810;
“…The amount of the plaintiff’s pension (taking into account the fact that he lives in a rented house) is not sufficient to lift him out of poverty. It is also a fact that people lose their biological and physical strength after a certain age… Therefore, the court should order an appropriate alimony, proportionate to the defendant’s income, necessary for the plaintiff’s livelihood, and in accordance with the principle of equity in Article 4 of the Turkish Civil Code…”[7]
Another necessary condition for subsidized alimony is the alimony obligor’s ability to pay. Article 365/2 of the Turkish Civil Code states, “The lawsuit consists of a request for assistance necessary for the plaintiff’s livelihood and in accordance with the financial capacity of the other party.” This stipulates that the alimony obligor’s financial means will be taken into account in determining the alimony. Accordingly, if subsidized alimony can be met without duress or hardship, the alimony obligor is deemed to have the ability to pay; however, if the alimony obligor is so ill that he cannot work and has no income, he is deemed to have no financial means. However, as previously stated, ability to pay is not a sufficient condition for siblings to be subject to alimony obligations. The law requires that siblings be well-off for alimony obligations to be considered.
Court of Cassation, 2nd Civil Chamber, Date: 05.11.1985, Merits No: 9089, Decision No: 8985;
“…a person whose income is sufficient to afford what might be considered luxuries based on their social standing and social status, and who enjoys such abundance and wealth that they can afford everything beyond their normal needs, is considered well-off. It is undisputed that the defendant is a worker abroad. The fact that they save money by sacrificing the ordinary and humane living conditions considered normal by their social standing for the sake of savings, and that when foreign currencies are converted into Turkish Rent, they amount to a significant amount for Turkey, does not necessitate the acceptance that they live a wealthy life and, therefore, are well-off.”[8]
[1] In this study, the following information was used from the master’s thesis: Aşık, G. (2019). Türk Medeni Kanunu ve Yargıtay kararları kapsamında yardım nafakası. Anadolu University (Turkey).
[2] Court of Cassation, 3rd Civil Chamber, Date: 06.05.2008, Merits No: 7185, Decision No: 8276.
[3] 2nd Civil Chamber of the Supreme Court of Appeals, Merits No: 1993/10879, Decision No: 1993/11757.
[4] Court of Cassation 2nd Civil Chamber, Merits No: 2007/578, Decision No: 2008/913.
[5] Court of Cassation 2nd Civil Chamber, Merits No: 9252, Decision No: 927.
[6] Court of Cassation, 2nd Civil Chamber, Date: 17.03.1987, Merits No: 1425, Decision No: 2234.
[7] Supreme Court of Appeals 3rd Civil Chamber, Date 10.03.2009, Merits No: 2891, Decision No: 3810.
[8] Court of Cassation, 2nd Civil Chamber, Date: 05.11.1985, Merits No: 9089, Decision No: 8985.