As an institution that aims to protect the party who will fall into poverty as a result of divorce, alimony frequently comes to the fore and is the subject of debate due to incomplete and misinformation. Article 175 and subsequent provisions of the Turkish Civil Code stipulate that the party who will fall into poverty as a result of the divorce may request indefinite alimony from the other party in proportion to his or her financial capacity, provided that the party’s fault is not more severe.
In this context, it should be underlined that alimony may be awarded not as a result of every divorce, but only if the conditions mentioned in the Law are met. First of all, in order for the judge to decide on alimony, the spouse who will fall into poverty due to the divorce must request alimony. The point that should be noted here is that both men and women are granted the right to request alimony under the same conditions. In addition, it is not necessary to request alimony during the divorce case, but it is also possible to request it through an alimony case after the divorce.
Secondly, the spouse requesting alimony must be at fault or less at fault than the other spouse. It is not possible for alimony to be awarded in favor of the spouse who is more at fault in the divorce, even if he or she falls into poverty.
Thirdly, the spouse requesting alimony must fall into poverty due to the divorce. According to the understanding in society, a normal and average level of poverty is sufficient for alimony to be awarded.[1] In addition, the alimony to be decided must be proportional to the financial ability of the spouse who will pay it. This condition constitutes the upper limit of the alimony.
Finally, alimony is indefinite and continues until the death of one of the parties. However, although this is the rule, it is possible to increase, decrease or eliminate the alimony in some cases, as will be examined below.
Increasing or Decreasing Alimony
The court may decide to pay alimony in lump sum or as income. The way alimony is paid is important in terms of changes to be made in alimony later. Turkish Civil Code article 176/4;
It may be decided to increase or decrease the income in cases where the financial situations of the parties change or when equity requires it.
It is valid.
As can be understood from the provision, it is possible to increase or decrease the alimony that is decided to be paid only in the form of income. In other words, it is not possible to increase or decrease the alimony decided to be paid in lump sum later, for any reason.
In order to change the alimony, the creditor must request the court to increase the alimony, and the debtor must request the court to reduce the alimony. In addition, in order to request a change in alimony, the financial situation of the parties must change or equity justifies increasing or decreasing the alimony. For example, regaining working capacity, the alimony creditor receiving a large inheritance, or a significant decrease in the obligor’s ability to pay may be reasons that justify the request for alimony reduction.[2] In addition, it is possible to increase the amount of alimony in other justifiable cases, such as the emergence of a disease that requires expensive treatment of the alimony payee.
The 3rd Civil Chamber of the Supreme Court of Appeals, Dated 28.01.2014, Merits No: 2014/143 and Decision No: 2014/1023;
In the concrete case, the dismissal of the plaintiff (the alimony obligor) from his job was accepted by the court as a significant change. This issue may be considered a valid reason if the plaintiff obtains all his income from his lost job. However, in cases previously heard between the parties; It was determined that the plaintiff obtained rental income from his real estate (workplaces and chicken farm) and the court did not conduct an investigation in this regard. Apart from this, it has not been clarified whether the plaintiff, who was dismissed from his job, received compensation for his labor receivables from the workplace outside the case or whether he filed a lawsuit to receive this compensation.
Accordingly, by the court; All income items of the plaintiff should be determined by expert examination, if necessary, the ratio of the rental income obtained by the plaintiff in his total income should be determined, and it should also be clarified whether the plaintiff receives compensation due to labor receivables from the workplace outside the case, and whether there is a significant change in the economic and social situation of the plaintiff. “It should be discussed on the spot and a decision should be made on the merits of the dispute according to the result.[3]
According to the Supreme Court, the fact that the alimony obligor has been dismissed from his job does not alone constitute a reason for reducing the alimony. In this case, a decision should be made by evaluating whether the alimony obligor has other income items.
Termination of Alimony
Whether the alimony is determined as a lump sum or income is also important in terms of termination of the alimony. According to Turkish Civil Code article 176/3;
The financial compensation or alimony decided to be paid in the form of income is automatically terminated in case of remarriage of the creditor party or death of one of the parties; It is annulled by court decision if the creditor party actually lives as if s/he were married without getting married, her/his poverty is eliminated, or s/he leads a dishonorable life.
As can be understood from the wording of the provision, termination of alimony is only valid for alimony decided in the form of income and is not applicable for alimony paid in lump sum. In addition, the Law regulates the termination of alimony by court decision as well as the situations in which alimony will terminate automatically. According to the Law, alimony will automatically terminate in case of remarriage of the alimony obligee party or death of one of the parties. Here, the automatic termination of alimony by remarriage is valid only for the alimony creditor. Remarriage of the debtor does not terminate alimony. Since alimony is a claim and debt depending on the person, it ends automatically with the death of the creditor or debtor. It should be noted that it is not possible for the heirs to request that the alimony be paid to them after the death of the alimony creditor. However, there is no obstacle for the heirs to claim alimony receivables that are due and unpaid until the moment of death.[4]
Situations in which alimony is abolished by court decision are considered as restrictions in the Law. Accordingly, alimony is abolished by court decision in cases where the creditor party actually lives as if s/he were married without getting married, her/his poverty is eliminated, or s/he lives a dishonorable life. As can be understood from the wording of the provision, if one of these situations occurs, the court has no discretion and must decide to abolish the alimony.
• Common-Law Marriage
If the alimony recipient remarries, alimony ends automatically. However, in practice, it is often seen that the alimony creditor, in order not to be deprived of her/his alimony receivable, resorts to not having an official marriage and living a de facto married life without getting married. The legislator, who wants to prevent the abuse of the right, has regulated common law marriage as one of the situations where alimony can be terminated by court decision.
The 2nd Civil Chamber of the Supreme Court of Appeals, Dated 17.05.2006, Merits No:2006/1415 and Decision No:2016/7669;
It is understood from the witness statements that the defendant woman is living with someone else as an unofficial married person, and while it should be decided to abolish the alimony, it is not considered appropriate to make a written decision.
The law does not clearly define the state of living as if one were actually married. As can be understood from the Supreme Court decision, it is possible to prove living as if you were actually married with all kinds of evidence, including witnesses.[5]
• Eradication of Poverty
Regulating the elimination of poverty as the reason for the abolition of alimony shows that alimony is not an arbitrary practice but an institution created by taking into account the socioeconomic structure of the society. Earning enough income to support her/himself means that the poverty of the alimony payee is eliminated. The elimination of poverty may be due to the alimony payee acquiring a profession or due to inheritance.
The 3rd Civil Chamber of the Supreme Court of Appeals, Dated 06.11.2024 and numbered 2014/7485 Principles and Decision No. 2014/14559;
With the established practices of the Supreme Court, it has been accepted as a principle that the mere existence of the minimum wage does not eliminate poverty, and that this situation should only be taken into account when determining the amount of alimony.
In line with the above explanations; It is correct that the court decided to reject the removal request with written justification. However, although the defendant’s starting to work for minimum wage does not constitute a reason for the abolition of alimony, it was not deemed appropriate to not decide on an equitable amount of alimony reduction, considering that the defendant woman started working as an insured person and earned similar income to the plaintiff’s.[6]
According to the Supreme Court, it is not possible for the alimony recipient to end the alimony by court decision, since starting to work for minimum wage is not a reason that eliminates poverty. However, considering other conditions, it may be a reason to reduce alimony.
• Living a Dishonorable Life
The law does not clearly regulate what should be understood as leading a dishonorable life. However, it can be said that the alimony creditor, who constantly chooses a life that conflicts with the value judgments of the society, is living a dishonorable life. It is regulated as a reason for the alimony to be abolished by a court decision because living a dishonorable life is a life that would hurt the honor of the alimony debtor.
Conclusion;
The Law only regulates the cases of increase, decrease and termination of alimony decided in the form of income. In addition, termination of alimony by court decision is considered as a limitation in the Law. Accordingly, alimony is abolished by court decision only in cases where the obligee has a common law marriage, her/his poverty is eliminated, or s/he leads a dishonorable life.
REFERENCE
Dural, Oğüz, Gümüş, Türk Ozel Hukuku Cilt 3, Istanbul, Filiz Publisher, 2018
The 3rd Civil Chamber of the Supreme Court of Appeals, Dated 28.01.2014, Merits No: 2014/143 and Decision No: 2014/1023
The 2nd Civil Chamber of the Supreme Court of Appeals, Dated 17.05.2006, Merits No:2006/1415 and Decision No:2016/7669
The 3rd Civil Chamber of the Supreme Court of Appeals, Dated 06.11.2024 and numbered 2014/7485 Principles and Decision No. 2014/14559
Turkish Civil Code and Related Legislation
[1] Dural, Oğüz, Gümüş, Türk Ozel Hukuku Cilt 3, Istanbul, Filiz Publisher, 2018, p.151
[2] Dural, Oğüz, Gümüş, Türk Ozel Hukuku Cilt 3, Istanbul, Filiz Publisher, 2018, p.154
[3] The 3rd Civil Chamber of the Supreme Court of Appeals, Dated 28.01.2014, Merits No: 2014/143 and Decision No: 2014/1023
[4] Dural, Oğüz, Gümüş, Türk Ozel Hukuku Cilt 3, Istanbul, Filiz Publisher, 2018, p.155
[5] The 2nd Civil Chamber of the Supreme Court of Appeals, Dated 17.05.2006, Merits No:2006/1415 and Decision No:2016/7669
[6] The 3rd Civil Chamber of the Supreme Court of Appeals, Dated 06.11.2024 and numbered 2014/7485 Principles and Decision No. 2014/14559