It is necessary to determine whether the alimony receivable of the alimony creditor, who is the debtor, can be accepted as an asset value that can be seized for the debt in question. When making this determination, the issue of whether the alimony is an alimony based on a decree becomes important.

According to Article 83 of the Enforcement and Bankruptcy Law, partial seizure of alimony not based on a decree is possible. Alimony not based on a decree is alimony that is not determined by a court decision and is agreed upon by the parties with a contract in accordance with the provisions of the Turkish Code of Obligations. In the words of the Court of Cassation, alimony not based on a decree is incomes that are based on a contract, are not mandatory and are not ruled by the judge, and are determined and paid by the parties with their free will. Seizure of these is possible after the amount determined by the enforcement officer as necessary for the livelihood of the debtor and his family is deducted.

However, the situation is different in terms of alimony receivables based on a judgment. Merits No. 2018/4928 and Decision No. 2019/242 of the 12th Civil Chamber of the Supreme Court of Appeals:

Due to its nature, alimony is a money ordered as a priority and necessity for the person’s survival, and the fact that the alimony creditor does not demand the alimony ordered every month and collects the accumulated alimony does not mean that this money turns into an “ordinary receivable”. Because, the alimony creditor should have the opportunity to collect the alimony awarded whenever he wants.

In that case, since the court cannot seize the accumulated alimony receivables, it should have decided to accept the complaint and lift the seizure, but it is inappropriate to rule in terms of rejecting the complaint.

The 12th Civil Chamber of the Supreme Court of Appeals, Merits No. 2002/14311 and Decision No. 2002/15013;

“…what is meant by alimony based on a judgment is a money that is primarily and indispensably ordered by the judgeship during the case to sustain the person’s life, and the purpose of starting an interim decision is to collect the alimony as soon as possible without waiting for the result of the case. In other words, whether the alimony is tied to a judgment or not does not affect the outcome in such cases. What should be understood from the expression “alimony not based on a judgment” in Article 83 of the Enforcement and Bankruptcy Law is alimony based on a contract, as in Article 507 of the Code of Obligations. In other words, it is not alimony ordered by the judgeship because it is necessary, but the incomes decided under the conditions of the said article with the free will of the parties. In this case, even if the alimony given according to the provisions of the Turkish Civil Code, which is mandatory for the livelihood of the person in whose favor the judgment is made, accumulates, its seizure is not permissible due to its nature. It is inappropriate for the authority to decide to reject the complaint with contrary opinions…”[1]

While the Supreme Court of Appeals accepts that it is possible to seize alimony receivables that are not based on a judgment, it adopts a different practice in terms of alimony receivables that are based on a judgment. According to the Supreme Court of Appeals, alimony receivables based on a verdict cannot be seized because they are money ordered as essential. In addition, the Supreme Court of Appeals is of the opinion that the alimony determined out of necessity in accordance with the provisions of the Turkish Civil Code cannot be accepted as a receivable not based on a judgment, even if it has not yet been concluded with a judgment. In other words, according to the Supreme Court, in this case, the alimony receivable cannot be seized. Another important issue is that the nature of the accumulated alimony receivable cannot be considered as an ordinary receivable. The Supreme Court is of the opinion that the accumulated alimony receivable does not qualify as an ordinary receivable and therefore its seizure is not possible.

Finally, in the event that alimony receivable based on a judgment that is not accepted as an asset value that can be seized is seized, the unlawfulness in question can be eliminated through a complaint of non-seizability.

A complaint of non-seizability arises when an asset value that cannot be partially or completely seized is seized. The complaint is filed with the enforcement court. A complaint of non-seizability filed with the enforcement office is invalid. As a rule, a complaint of non-seizability does not stop the enforcement proceedings. However, if the enforcement court decides to stop the enforcement proceedings upon the complaint of non-seizability, the enforcement proceedings are stopped. As a rule, the period of complaint is 7 days from the date of learning of the transaction.[2]

REFERENCE

Çitak, Burçak, Alimony Obligations Between Spouses, Istanbul University Master’s Thesis, Istanbul, 2016

Atalı, Ermenek, Erdoğan, İcra ve İflas Hukuku, Yetkin Publisher, 2021, p.62

The 12th Civil Chamber of the Supreme Court of Appeals, Merits No. 2018/4928 and Decision No. 2019/242

The 12th Civil Chamber of the Supreme Court of Appeals, Merits No. 2002/14311 and Decision No. 2002/15013

Enforcement and Bankruptcy Law and Relevant Legislation

[1] Çitak, Burçak, Alimony Obligations Between Spouses, Istanbul University Master’s Thesis, Istanbul, 2016

[2] Atalı, Ermenek, Erdoğan, İcra ve İflas Hukuku, Yetkin Publisher, 2021, p.62