Initiating Enforcement Proceedings for the Collection of Alimony Receivables
Alimony is a regular financial support granted by a court decision to the financially disadvantaged spouse, child, or sometimes parents, following a divorce or separation. The Turkish Civil Code No. 4721 regulates four types of alimony. These are:
- Precautionary Alimony
- Child Support Alimony (Participation Alimony)
- Poverty Alimony
- Support Alimony
Precautionary Alimony
Article 169 of the Turkish Civil Code No. 4721 states:
“When a divorce or separation case is filed, the judge shall, ex officio, take the necessary temporary measures during the proceedings, particularly concerning the accommodation and maintenance of the spouses, the management of their property, and the care and protection of the children.”
During the divorce or separation process, the judge may order precautionary alimony to cover the expenses of the spouses or children under this article. Once the divorce decree becomes final, the precautionary alimony ends. However, the judge may decide that the precautionary alimony shall continue as poverty alimony or child support (participation alimony) after the finalization of the divorce.
Child Support Alimony (Participation Alimony)
Article 182/3 of the Turkish Civil Code No. 4721 states:
“In regulating the personal relationship of the spouse who is not granted custody with the child, the best interests of the child, particularly regarding health, education, and morals, shall be taken into account. This spouse is obliged to contribute to the child’s care and education expenses in proportion to their financial capacity.”
According to this provision, in a divorce case, the spouse who is not granted custody must contribute to the child’s care and education expenses in proportion to their financial means. This type of alimony is called participation alimony (child support).
Poverty Alimony
Poverty alimony is regulated under Article 175 of the Turkish Civil Code No. 4721, which states:
“The party who will fall into poverty due to divorce may request alimony for their livelihood from the other party indefinitely, provided that their fault is not more serious.”
In order for poverty alimony to be granted:
- There must be a request by one of the parties,
- The requesting spouse must be less at fault than the other, and
- The requesting spouse must face poverty as a result of the divorce.
The judge determines the amount of alimony by taking into account the socio-economic conditions of both parties.
Alimony for Support
“Support alimony is a type of alimony paid to descendants, ascendants, and siblings who are at risk of falling into poverty. However, according to Article 364 of the Turkish Civil Code No. 4721, the obligation of siblings to pay alimony depends on their living in prosperity.
If the alimony is not paid, enforcement proceedings can be initiated. Precautionary alimony is an interim decision and does not contain a final judgment; therefore, it can be subject to enforcement proceedings without a court order. For other types of alimony, enforcement through a court order can only be pursued if there is a finalized court judgment.”
What Information and Documents Are Required for Alimony Enforcement Proceedings?
To initiate enforcement proceedings for unpaid alimony debt, the full names, Turkish ID numbers, and address information of the parties are required. If there is a finalized court decision regarding the alimony, meaning that an enforcement proceeding with a court order (ilamlı icra takibi) will be initiated, this court decision must be attached to the enforcement request as the basis for the proceeding. However, if precautionary alimony has been awarded, the interim court order document must be attached to the enforcement request.
To Which Enforcement Office Is the Alimony Enforcement Filed?
If the alimony claim in question is precautionary alimony, as a rule, the enforcement office in the debtor’s place of residence has jurisdiction. However, if the alimony is for participation, poverty, or support alimony and there is a finalized court judgment, all enforcement offices have jurisdiction. In other words, alimony enforcement proceedings based on a court order (ilamlı) can be initiated at any enforcement office.
What Happens If the Alimony Debt Is Not Paid?
If the enforcement proceedings are initiated due to non-payment of alimony debt and the debtor does not raise any objection within 7 days, the proceeding becomes finalized. For alimony enforcement proceedings initiated with a court order (ilamlı), it is not possible for the debtor to obtain a postponement of enforcement (tehir-i icra).
Once the proceeding is finalized, the debtor’s salary and assets can be subject to seizure. Alimony claims are listed as priority debts under Article 206 of the Enforcement and Bankruptcy Law No. 2004. Although, as a rule, pensions cannot be seized, pension payments can be seized for alimony debts.
Furthermore, according to Article 344 of the Enforcement and Bankruptcy Law No. 2004, “If the debtor fails to comply with alimony-related decisions, upon the creditor’s complaint, the court may order coercive imprisonment for up to three months.”
Objection to Alimony Enforcement Proceedings
The debtor may object to the enforcement proceedings related to precautionary alimony by applying verbally or in writing to the relevant enforcement office within 7 days from the date the payment order is served. If an objection is made within the time limit, the enforcement proceedings are suspended. In this case, the creditor may file lawsuits to lift the objection or to annul the objection.
Accrued Alimony Claims and Interest
The alimony creditor can initiate enforcement proceedings for accrued alimony debts and claim both the accrued alimony amounts and those not yet due. In this case, the accrued alimony debts will be collected as a priority. Ordinary legal interest can be applied to the alimony debt. The current legal interest rate is 24% per annum. Subsequently, the debtor must make payments each month for the due debts to the enforcement file. In cases where there is a salary attachment, this payment will be deducted from the debtor’s salary each month and paid by the employer/institution.
Supreme Court Decisions
1- “Upon examination of the enforcement file subject to the complaint; it was found that the case for precautionary alimony, independently filed by the creditor while the marriage was ongoing and heard in the Karadeniz Ereğli Family Court under file number 2017/50 E., was joined by the divorce case filed by the debtor in the same court under file number 2017/27 E. The basis for the enforcement is the interim decision dated 25.05.2017 of the Karadeniz Ereğli Family Court in file number 2017/27 E., ordering a monthly precautionary alimony of 450.00 TL effective from 13.01.2017. The enforcement seeks the precautionary alimony due on 13.01.2017, 13.02.2017, 13.03.2017, 13.04.2017, and 13.05.2017, as well as the precautionary alimonies accruing after the enforcement date of 01.06.2017.
During the enforcement proceedings, with the decision dated 19.04.2018 in file number 2017/27 E. of the Karadeniz Ereğli Family Court, the main case, the divorce case, was dismissed, while the joined case regarding the precautionary alimony was accepted, ordering a monthly precautionary alimony of 450.00 TL effective from 24.01.2017. It was also ruled that the execution of this alimony should not be subject to duplication with the monthly precautionary alimony ordered in the interim decision dated 25.05.2017.
Upon the appeal of the dismissal decision of the divorce case, the Ankara Regional Court of Appeal, 28th Civil Chamber, with its judgment dated 17.03.2021 and numbered 2019/1186 E. – 2021/398 K., accepted the main divorce case and ruled on the divorce of the parties, continuing the monthly precautionary alimony of 450.00 TL in favor of the defendant woman until the finalization of the decision. Regarding the joined case for precautionary alimony, it partially accepted the case and ordered that the monthly precautionary alimony of 450.00 TL effective from 24.01.2017 be collected from the joined defendant husband, provided that it does not duplicate with the precautionary alimony ordered in the interim decision in the divorce case.
This decision was overturned by the Supreme Court of Appeals (Yargıtay) 2nd Civil Chamber with its ruling dated 06.10.2021 and numbered 2021/5060 E. – 2021/6906 K. Following this annulment, the Ankara Regional Court of Appeal, 28th Civil Chamber, with its decision dated 21.01.2022 and numbered 2021/1633 E. – 2022/45 K., ruled that since the decision given in the joined case became final, there was no need for a new decision on this matter. It decided to resist the Supreme Court’s annulment ruling, reinstating the previous ruling on the divorce and its ancillary matters. This decision was approved by the Supreme Court of Appeals 2nd Civil Chamber with its ruling dated 28.04.2022 and numbered 2022/3172 E. – 2022/4087 K., and the decision became final on 28.04.2022.
Accordingly, it was determined that the Family Court’s decision in the joined case of precautionary alimony became final on 17.03.2021, and the decision regarding the divorce case and its ancillary precautionary alimony became final on 28.04.2022. Therefore, the five months’ accrued precautionary alimony subject to enforcement and the accruing precautionary alimonies can be claimed until the finalization date of the divorce decree, which is 28.04.2022, as required by the finalized judgment.
Moreover, it was observed that the creditor submitted two separate judgments related to the increase of precautionary alimony (decisions of the Karadeniz Ereğli Family Court dated 24.10.2019 with file number 2019/427 E. – 2019/963 K. and dated 03.06.2022 with file number 2022/82 E. – 2022/485 K.) to the enforcement file subject to this complaint and requested their collection.”
On the other hand, although the creditor argued that the basis for the alimony accruing during the enforcement proceedings is the precautionary alimony ordered by the Family Court and that the alimony will continue unless this judgment is overturned; monetary contribution claims made before the divorce case constitute the subject of an independent lawsuit based on Article 197 of the Turkish Civil Code (TCC) and remain valid as long as the spouses live separately.
The precautionary alimony awarded under Article 169 of the same Code is a temporary measure within the scope of the divorce case and ends upon the finalization of the decision in the divorce case unless it is lifted by the judge during the trial.
In light of these explanations, upon examining the concrete dispute; it is clear that the precautionary alimony based on Article 169 of the TCC ends as of the finalization date of the divorce decision, April 28, 2022, while the alimony based on Article 197 of the same Code, by its nature, continues for the duration of the marriage’s dissolution process. Since the parties have been divorced, it must be accepted that the creditor has no right to continue the enforcement proceedings in question for the period following the finalization of the divorce decision in either case.
Accordingly, considering that the decision of the Regional Court of Appeal to uphold the acceptance of the complaint by the Court of First Instance was appropriate, the rejection of the creditor’s appeal on the merits should have been decided; however, reaching a conclusion based on an erroneous evaluation as stated is incorrect.
RESULT: By accepting the debtor’s appeal, the decision of the Sakarya Regional Court of Appeal, 8th Civil Chamber, dated 11.01.2024 and numbered 2023/1183 E. – 2024/37 K., is REVERSED pursuant to Articles 373/2 of the Code of Civil Procedure No. 6100, as referred by Article 364/2 of the Enforcement and Bankruptcy Law No. 5311, for the reasons stated above…
(Supreme Court 12th Civil Chamber, Case No: 2024/2007 E., 2024/7495 K., Date: 19.09.2024)
2- “It is understood that the judgment ordering the payment of child support by the creditor mother for the joint child was subject to enforcement proceedings with a court order, and upon finalization of the enforcement, two independent units registered under Orion-52/A 1 and Orion-53/A 2 at … … … Neighborhood, … Block, … Parcel belonging to the debtor were seized. When the creditor applied to the enforcement office for the sale of the seized properties, she learned that the seizures had been lifted upon the joint child’s request and therefore filed a cancellation request with the enforcement court. The court dismissed the complaint on the grounds that the joint child is the creditor.
In the event of divorce or separation, the parent to whom the child is not entrusted is obliged to contribute to the child’s care and education expenses according to their ability (Article 182 of the Turkish Civil Code). According to this article, the beneficiary of the child support ordered by the judgment is not the joint child but the spouse who has been granted custody. Since the custody right ends when the minor child reaches adulthood, the child support also naturally ends at that time.
However, if there is accumulated unpaid child support until the child reaches adulthood, this debt may be subject to enforcement even after the child becomes an adult by the spouse who has custody. This is because child support is given to the spouse with custody to cover the child’s care and education expenses and can only be pursued by that spouse.”
In the concrete case, in the judgment numbered 2013/23 E. – 2014/277 K. of the … 2nd Family Court, the creditor is the mother who has custody rights, and the debtor is the father. Therefore, the mother may pursue enforcement for alimony debts that accrued before the child reached adulthood. The child cannot initiate enforcement for the child support judgment. Even if the child is an adult, it is not possible to lift the seizure made due to alimony debts accrued before adulthood without the request of the creditor mother. Because in this case, even if the child is an adult, the joint child is not a party (creditor) in the enforcement.
In this situation, the court’s ruling rejecting the complaint with the stated reasoning is incorrect; the court should have ruled to accept the complaint.
RESULT: By accepting the creditor’s appeal, the court decision is REVERSED pursuant to Articles 366 of the Enforcement and Bankruptcy Law and 428 of the Code of Civil Procedure for the reasons stated above…
(Supreme Court 12th Civil Chamber, Case No: 2018/4140 E., 2018/7227 K., Date: 03.07.2018)
Lawyer. Gökhan AKGÜL & Lawyer. Züleyha APAYDIN
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