According to Article 327/1 of the Turkish Civil Code, the necessary expenses for the care, education, and protection of the child are to be borne by both the mother and the father. The responsibility of the mother and father regarding the child’s expenses is independent of custody. In other words, even if custody of the child is not with the mother or father, the responsibility for the necessary expenses for the child’s care, education, and protection belongs to both parents. This responsibility of the mother and father continues until the child reaches adulthood, and if the child’s education continues, it lasts until the education is completed (Turkish Civil Code Article 328). If the mother and father do not have the financial means to fulfill this responsibility, this obligation is covered by the State according to Article 350 of the Turkish Civil Code.
During the continuation of the marriage union, disputes between the mother and father regarding covering the child’s expenses rarely arise. However, when the marriage union is dissolved and divorce occurs, disagreements may arise about which party will bear the child’s expenses. In response to this situation, various measures are foreseen in our law. One of these measures is the institution of alimony. Our law includes various types of alimony. One of these is the participation alimony, which is applicable in the case of divorce. When the marriage union ends, the spouse who has custody has the right to request the other spouse to contribute to the expenses necessary for the care, education, and protection of the child. This request for contribution is made under the name of alimony. In this case, the financial support provided by the other spouse to the spouse who has custody, for the necessary expenses related to the care, education, and protection of the child, is called participation alimony, measured according to the economic capacity of the other spouse. Article 329 of our Turkish Civil Code No. 4721 regulates the alimony claim. According to Article 329, the parent who actually takes care of the minor child can file an alimony lawsuit against the other parent on behalf of the child.
In cases where the minor lacks the capacity to distinguish, a maintenance lawsuit can be filed by the appointed guardian or custodian. At the same time, a minor who has the capacity to distinguish can also file a maintenance lawsuit.
In our law, participation alimony constitutes an obligation for the protection of the child. Participation alimony is a matter of public order. Therefore, even if the parties do not request it, the judge can rule on participation alimony ex officio. This obligation is expressed in Article 182/2 of the Turkish Civil Code (TMK). According to this provision, the spouse who is not granted custody is obliged to contribute to the child’s care and education expenses in proportion to their financial capacity. When ruling on participation alimony, how the marriage union ended is not important. The marriage union may have ended due to separation, annulment, contested divorce, or mutual consent divorce.
Cases in Which Participation Alimony Applies
The spouse who is granted custody at the conclusion of the divorce case may request participation alimony from the other spouse for the joint child until the child reaches adulthood. In a paternity establishment case filed to determine the parent-child relationship between the child and the father, if the paternity is established, the court may order the defendant to deposit an appropriate amount of alimony or to pay temporary alimony to the child. The plaintiff does not need to make any request in this regard. The judge may decide, without any request, that the defendant deposit an appropriate alimony amount or make temporary payments once the paternity between the child and the defendant is confirmed. This alimony is referred to as provisional alimony. Upon finalization of the ruling, provisional alimony is replaced by participation alimony.
In cases of annulment of marriage, the court that decides on annulment, separation, or annulment of the marriage also decides on custody of the child, establishes personal relations with the parent without custody, and addresses alimony matters. The judge may also rule on separation within the divorce case. When the court rules on separation, it grants custody of the child to one spouse while granting the other the right to personal relations with the child and ordering payment of participation alimony.
Persons Who Can Request Participation Alimony
Considering Article 329 of the Turkish Civil Code (TMK), the persons who can request participation alimony can be listed as follows:
- The spouse who actually takes care of the child,
- The guardian appointed for the child,
- The custodian,
- The child who has the capacity to discern.
As previously stated, even if no request is made for participation alimony, the judge can decide on the alimony ex officio because participation alimony is a matter related to public order.
Calculation of Participation Alimony
When calculating participation alimony, the judge makes a decision by taking into account Article 330 of the Turkish Civil Code (TMK).
TMK Article 330 states:
“The amount of alimony is determined by considering the child’s needs as well as the living conditions and payment capacities of the mother and father. The child’s income is also taken into account in determining the amount of alimony. Alimony is paid monthly in advance.
Upon request, the judge may decide on the amount of alimony to be paid in the form of an annuity and determine how much will be paid in the coming years based on the social and economic conditions of the parties.”
Taking Article 330/1 into account, the judge, when ruling on participation alimony;
- The child’s age
- The child’s health condition
- The child’s educational status
- The child’s personal income
It takes into account the socio-economic status of the mother and father. The criteria to be investigated when determining the amount of alimony are standards that the judge can research and decide based on their own knowledge and experience without consulting an expert. However, if the judge wishes, they can seek assistance from specialists in the relevant field for these criteria.
In the case of an uncontested divorce, if the parties have agreed on an alimony amount for the child in their protocol, and the judge finds this amount appropriate according to the specified criteria, then the agreed alimony amount becomes valid.
If there is a possibility of increasing or decreasing the amount of alimony awarded, according to Article 182/3 of the Turkish Civil Code (TMK), the judge may specify in the decision how much the alimony, which is ordered to be paid as an annuity upon the request of the parties, will be increased in future years. Over time, changes may occur in the child’s needs or in the socio-economic status of the parent ordered to pay the alimony. In such cases, according to Article 331 of the TMK, the amount of alimony can be changed or terminated by the judge upon request. For this purpose, the parties may file a petition for adjustment of alimony. The alimony amount decided as a result of the case becomes effective upon the finalization of the ruling and payment begins. Additionally, the judge may state in the decision that the alimony will be increased annually according to indexes such as the Wholesale Price Index (TEFE), Consumer Price Index (TÜFE), State Institute of Statistics (DİE), Foreign Exchange Rate, and Gold Prices, thereby determining the amount of alimony to be paid in subsequent years. As stipulated in our law, alimony is paid monthly in advance. According to Supreme Court precedents, the alimony creditor is identified as the child. (TMK Article 330/2)
How Much Is Child Support (Participation Alimony) Paid?
The age until which child support (participation alimony) is paid, as decided by the judge or agreed upon in the divorce protocol between the spouses, is specified in our law. Accordingly, child support ends when the child reaches the age of 18, gets married, or is legally declared an adult by a court decision according to Article 12 of the Turkish Civil Code (TMK). However, our law provides an exception whereby child support may continue even after the child becomes an adult. According to TMK Article 182/2, if the child continues their education after becoming an adult, child support continues to be paid. In this case, child support lasts until the completion of the child’s education.
Termination of Child Support (Participation Alimony)
The termination of child support primarily occurs with the child reaching legal adulthood, as mentioned above. Besides this, there are other circumstances that also lead to the termination of the support. These circumstances include:
- The obligated party losing their financial capacity, or becoming unable to fulfill their obligation due to reasons such as illness or inability to work,
- The death of the child,
- The death of the obligated party,
- The waiver of the alimony claim by the recipient.
Alimony terminates when any of the aforementioned situations occur.
Non-payment of child support (participation alimony)
In the event of non-payment of participation alimony, compulsory enforcement can be pursued to collect the alimony. The legislator has foreseen certain measures to ensure the payment of alimony. These measures can be listed as follows:
Alimony claims are ranked among the first-priority debts according to the Enforcement and Bankruptcy Law. Therefore, if the debtor’s movable or immovable properties are sold through enforcement proceedings, the alimony claim is paid first from the proceeds of the sale.
The pension salary of the alimony debtor can be garnished to ensure the payment of alimony claims.
If the debtor’s salary is garnished for the payment of alimony, the full monthly alimony amount will be deducted from the salary.
Alimony claims have priority in garnishment. This means that even if there is a prior garnishment on the debtor’s salary, the monthly alimony amount will be deducted independently of previous garnishments.
If the alimony debtor fails to pay the monthly alimony amount, upon the complaint of the alimony creditor and if other conditions are met, the debtor may be sentenced to coercive imprisonment for up to 3 months according to Article 344 of the Enforcement and Bankruptcy Law.
STATUTE OF LIMITATIONS IN CHILD SUPPORT (PARTICIPATION ALIMONY)
Alimony claims constitute an exception to the statute of limitations. Under normal circumstances, according to the provisions of the Enforcement and Bankruptcy Law (İİK), a claim becomes time-barred after 10 years from the date of the court decision. However, alimony claims—including participation (child support) and maintenance alimony—are not subject to this 10-year limitation period. This means that even if 10 years have passed since the court decision, alimony claims can still be demanded. This exception does not apply to accumulated (past-due) alimony claims. Accumulated alimony claims are subject to the legally prescribed 10-year statute of limitations. For alimony lawsuits, the limitation period is 5 years according to the Code of Obligations.
The Competent and Authorized Court for Participation Alimony Cases
According to Article 177 of the Turkish Civil Code (TMK), the competent court for cases filed regarding participation alimony is the family court. The authorized court is the court of the residence of the alimony creditor. However, this jurisdiction specified in the law is a special jurisdiction. Therefore, the case can also be filed in the family court of the defendant’s place of residence. If participation alimony is requested during a contested divorce case, the court hearing the divorce case is considered competent and authorized.
WAIVER OF PARTICIPATION ALIMONY
Participation alimony is an allowance that a person can request later even if they do not claim it during a consensual or contested divorce case. Therefore, a waiver of participation alimony for the future is not possible, and even if a person has committed in a consensual divorce agreement or contested divorce case not to claim participation alimony in the future, such a commitment is invalid. As previously stated, participation alimony concerns public order. Even if the parties do not make a request regarding this matter, it is an institution that the judge considers ex officio. Consequently, any waiver made regarding the future non-claim of participation alimony is absolutely invalid.
Supreme Court Decisions Regarding Participation Alimony
“…The plaintiff stated that they divorced the defendant in 2004, that the defendant had promised to take care of the children, and therefore did not request alimony for themselves and the children, but claimed that the father did not contribute at all to the children under their custody, and filed a lawsuit requesting monthly participation alimony of … TL for both children. … According to Article 181/II of the Turkish Civil Code (TMK), in the event of divorce or separation, the spouse who is not granted custody is obliged to contribute to the child’s care and education expenses in proportion to their financial capacity. This matter concerns public order and is not subject to the parties’ will. Therefore, even if participation alimony was not requested in the divorce case, this request may arise later. …” (Supreme Court 3rd Civil Chamber, Decision dated 06.10.2005, Case No. 2005/10616, Decision No. 2005/9673)
“The dispute in the case filed after the enactment of Turkish Civil Code No. 4721 centers on whether a provisional alimony can be awarded in favor of the defendant woman found at fault in the events leading to divorce. Provisional alimony was regulated under Article 137 of the repealed Civil Code No. 743. According to that provision, once a divorce or separation case is filed, the judge is obliged to take necessary temporary measures throughout the proceedings, especially concerning the spouses’ accommodation, maintenance, management of marital property, and care of children, even without a request, and this obligation is mandatory for the judge hearing the case. The Supreme Court’s practice has established that the woman’s conduct leading to the divorce does not alter this rule stipulated in Article 137.
Article 169 of the Turkish Civil Code No. 4721 preserves this provision in a simplified form. It states that once a divorce or separation case is filed, the judge shall ex officio take necessary temporary measures throughout the proceedings, particularly concerning spouses’ accommodation, maintenance, management of property, and care and protection of children, without requiring fault to be proven.
Therefore, for the reasons explained above, the court should have ruled on provisional alimony in favor of the woman, taking into account that the woman’s conduct leading to the divorce does not change the rule set forth in the article. The rejection of the request on incorrect grounds is contrary to procedural rules and law. For this reason, the resistance decision should be overturned.” (Supreme Court General Assembly of Civil Chambers; dated 28.01.2004, Case No. E. 2004/2-8, Decision No. K. 2004/27)
“…If the balance between the reciprocal performances existing at the time the contract was made is later disrupted to an unbearable extent for one of the parties due to extraordinary changes in circumstances, the parties can no longer be held to that contract. In light of these changed circumstances, they may request the court to readjust the contract by benefiting from Article 2 of the Civil Code. The defendant (the alimony creditor) aimed to escape the effects of high inflation prevailing in the country by agreeing to an annual 65% increase in the alimony stated in the contract. However, over time, with decisions taken by the Government, the inflation rate has decreased, and regarding alimony increase requests for future years under Law No. 4721 (Article 176/last clause), an increase based on the Wholesale Price Index announced by the State Institute of Statistics has been adopted by the Supreme Court.
The court should have considered that the condition of increasing alimony by 65% annually was an unbearable burden for the plaintiff (the alimony obligor) and decided to adjust this condition to an increase according to the Wholesale Price Index (TEFE) each year. The outright dismissal of the case was incorrect and required reversal. Therefore, the judgment made in writing without considering the principles explained above is erroneous. The appeal objections are justified for these reasons, and accordingly, the judgment is REVERSED pursuant to Article 428 of the Civil Procedure Code.”
(Supreme Court 3rd Civil Chamber, dated 21.06.2004, Case No. E. 2004/6609, Decision No. K. 2004/6826)
The court partially accepted the case and decided to increase the child support to 600 TL per month for each of the two children starting from the date of the lawsuit. The ruling was appealed by the defendant during the term of the judgment. The case concerns the request for an increase in child support.
When determining the amount of child support, the court must consider the child’s age, education, and needs, as well as the income of the parents, and award an amount of support that is fair and proportional to the income of the obligor (the defendant father).
In the specific case, it was established that the plaintiff mother works for a private company at minimum wage, lives in a house owned by the father along with her father, mother, and two children, and owns a 2012 model Sedan car; the defendant father receives a retirement pension, though the amount is unknown, has rental income, and is temporarily living with his mother.
The amounts of child support determined by the local court were found to be somewhat excessive considering the parties’ actual socio-economic conditions, the age and needs of the mutual children, the nature of the support, and the time elapsed since the previous support date. This was deemed contrary to the principle of equity, and therefore, the decision was overturned.
Accordingly, the court’s duty is to rule on a lesser amount of support by taking into account the children’s age, education, needs, the economic status of the obligor father, the time elapsed since the previous support decision, and the principle of equity emphasized in Article 4 of the Turkish Civil Code (Yargıtay 3rd Civil Chamber – Decision: 2017/10742).
According to Article 182/2 of the Turkish Civil Code (TMK): “In regulating the personal relationship between the child and the spouse who is not granted custody, the child’s interests, especially in terms of health, education, and morals, shall be primarily considered. This spouse is obliged to contribute to the child’s care and education expenses according to their financial capacity.”
Also, according to Article 328/1 of the same law: “The maintenance obligation of the mother and father continues until the child reaches maturity. The amount of maintenance is determined by considering the child’s needs as well as the parents’ living conditions and ability to pay. The child’s income is also taken into account when determining the amount of maintenance.” (TMK 330/1)
The amount of child support should be determined by taking into account the child’s age, educational status, the purchasing power of money under current economic conditions, and the general needs of the child, while also considering the financial situation of the parents.
In the concrete case, according to the socio-economic investigation conducted, it was determined that the plaintiff works for minimum wage and pays 550 TL rent; the defendant works at an auto service earning 2,500 TL monthly and pays 400 TL rent; and the mutual child was born in 2001 and is a high school student.
Furthermore, it was understood that the parties divorced on 14.10.2010 with the file numbered 2010/997 Esas and 2010/1297 Karar at the … 3rd Family Court, and that the approximately five-year period since the date of this case had resulted in the child’s growth and increasing needs, which were not sufficiently met.
Accordingly, while the court should have decided on a more appropriate increase by considering the parties’ social and economic conditions, the nature of the support, the child’s age, educational status, needs, and changes in economic indicators, the decision to award a monthly child support of only 350.00 TL for the mutual child with a low increase was deemed incorrect (Yargıtay 3rd Civil Chamber – Decision: 2017/5185).
Views: 0
