What is Alimony?
Alimony (nafaka) refers to the obligation of mutual support between a husband and wife in need, between descendants and ascendants, and between siblings. According to the Turkish Civil Code No. 4721, there are four types of alimony: precautionary (tedbir), participation (iştirak), assistance (yardım), and need-based (poverty) alimony (yoksulluk).
What is Need-Based Alimony?
Need-based alimony is the alimony paid to the spouse who is in financial hardship after the dissolution of the marital union, arising from the obligation of spouses to fulfill their family responsibilities. According to Article 175 of the Turkish Civil Code No. 4721: “The party who will fall into poverty due to the divorce may request alimony indefinitely from the other party in proportion to their financial capacity, provided that their fault is not greater. The fault of the party obliged to pay alimony is not sought.”
As understood from the article of the law, the conditions required for the payment of need-based alimony are as follows:
- The person requesting alimony must be the one who will fall into poverty due to the divorce.
- The person requesting alimony must not be more at fault than the other party.
- One of the parties must make the request.
- The spouse who will pay the alimony must have a suitable financial situation.
Furthermore, the fault of the person obliged to pay alimony is not required. In other words, in cases of equal fault, need-based alimony may be awarded in favor of the spouse who will fall into poverty.
The purpose of need-based alimony is to prevent the spouse with lesser fault from falling into poverty. Therefore, if the spouse entitled to need-based alimony has improved financial status, has a certain profession, or has the opportunity to find work sufficient to eliminate their poverty but chooses not to work, alimony cannot be awarded to them.
Who Can Request Need-Based Alimony and Under What Circumstances?
The spouse who will fall into poverty due to the divorce may request need-based alimony, provided that they are not more at fault than the other spouse. (Turkish Civil Code, Article 175/1)
The spouse who becomes impoverished as a result of the divorce must file the request for need-based alimony. The Turkish Supreme Court (Yargıtay) has evaluated the concept of poverty differently depending on each specific case. However, in the settled jurisprudence of the General Assembly of the Civil Chambers of Yargıtay, it has been held that those who do not have sufficient income to cover essential and necessary expenses such as food, clothing, housing, health, transportation, culture, and education—expenses required to maintain an individual’s material existence—should be considered poor.
For the court to award need-based alimony, the parties must submit a request. The judge cannot decide on this alimony ex officio. The alimony claimant must explicitly make a request. Contrary to popular belief, if the necessary conditions are met, either party—regardless of being male or female—can request alimony. Indeed, the Second Civil Chamber of Yargıtay, in its decision dated 20.12.2016, ruled that a husband who is not heavily at fault and will fall into poverty as a result of the divorce may be granted need-based alimony by his economically capable wife.
The alimony request can be made together with the divorce lawsuit or by filing a separate lawsuit after the divorce case concludes. However, if alimony is waived in a mutual divorce agreement, it is not possible to file a separate lawsuit for alimony after the divorce.
How Is the Amount of Alimony Determined?
The parties may agree on the amount, duration, and method of payment of need-based alimony, provided that the agreement does not violate public order, morality, or mandatory legal rules, and is approved by the judge in accordance with Article 184/5 of the Turkish Civil Code. The judge determines an appropriate alimony amount by examining the parties’ socio-economic status, assets, monthly income, and expenses in accordance with the law and fairness.
The payment of material or moral compensation to the spouse who falls into poverty during the divorce proceedings does not prevent the filing of an alimony claim. However, if the amount of compensation paid covers the poverty of the spouse requesting alimony, then, according to the principles of honesty and good faith, need-based alimony should not be awarded in their favor.
The amount to be paid by the alimony debtor should be proportional to their financial capacity and should not cause them hardship.
It should also be noted that if alimony is awarded monthly for an indefinite period, it may be increased periodically, for example, annually. Additionally, alimony can be awarded either as an indefinite monthly payment or as a lump-sum one-time payment. In practice, for short marriages where there are no common children, or even if there are common children but custody is granted to the other party, it is generally preferred to award alimony as a lump-sum payment.
Can Need-Based Alimony Be Increased?
After need-based alimony has been awarded, the economic and social conditions of either the alimony payer or the alimony recipient may change. In such cases, the judge may decide to increase or decrease the alimony amount by taking these changed circumstances into account. Indeed, according to Article 176/3 of the Turkish Civil Code, “A decision may be made to increase or decrease the alimony in cases where the financial situation of the parties changes or where fairness requires it.” However, it is required that the party making the request files a lawsuit for this to occur.
The Payment Method, Duration, and Statute of Limitations of Need-Based Alimony
Need-based alimony can be paid as a lump sum or as a periodic payment (Article 176 of the Turkish Civil Code). In practice, it is usually paid monthly as a periodic payment.
According to Article 175 of the Turkish Civil Code, alimony is generally indefinite. However, alimony may end under certain conditions:
- If the party entitled to alimony remarries.
- In the event of the death of either party.
In these cases, the alimony obligation is automatically terminated according to Article 176 of the Turkish Civil Code.
Additionally, according to the same paragraph, alimony can be terminated by court decision if “the entitled party lives as if married without formal marriage, their poverty ceases, or they lead a dishonorable life.”
According to Article 178 of the Turkish Civil Code, “The rights to file lawsuits arising from the termination of marriage due to divorce are subject to a statute of limitations of one year from the finalization of the divorce decree.”
Therefore, the right to file a lawsuit for need-based alimony after the divorce decree becomes final expires one year after the decree is finalized.
Sample Supreme Court Decisions
“The state of poverty should be assessed by considering the current economic conditions, as well as the social and economic status and lifestyles of the parties. From the case file, it is understood that as a result of the divorce case between the parties, the Maçka Civil Court of First Instance, by its decision dated 19.06.2012, numbered 2012/119 E. and 2012/148 K., ruled that the parties would divorce by mutual consent, and that a precautionary alimony of 700.00 TRY per month would be paid to the defendant woman from the date of the lawsuit, collected from the plaintiff. Upon the plaintiff’s appeal, this decision was upheld by the 2nd Civil Chamber of the Supreme Court on 28.01.2013, numbered 2012/16423 E. and 2013/2155 K. The plaintiff’s request for revision was rejected by a majority vote of the 2nd Civil Chamber of the Supreme Court on 24.04.2013, numbered 2013/7167 E. and 2013/11267 K., and the decision was finalized on 10.05.2013.**
On the other hand, it is established from the case file that the plaintiff’s net monthly income after deducting the alimony amount is 1,600.00 TRY; the defendant receives 272.50 TRY as an orphan’s pension from her deceased insured father, and she obtains 150 TRY rental income from the immovable property inherited from her father.
Considering these factual and legal circumstances, when the specific case is evaluated, the defendant’s income as stated is among the factors that affect the reduction, not the cancellation, of the alimony. Therefore, taking into account the social and economic conditions of the parties and observing that the defendant’s poverty has not ceased, the alimony should be appropriately reduced in accordance with the principle of equity regulated in Article 4 of the Turkish Civil Code No. 4721.”
(Supreme Court General Assembly of Civil Chambers, Decision No. 2017/3-1025 E., 2019/1135 K., dated 05.11.2019)
“The case concerns the request for the termination of need-based alimony. In the specific case, the defendant woman was not employed at the time of the divorce. She was awarded a monthly need-based alimony of 300 TRY. The job she started after the divorce is one that can be terminated at any time and is not a stable or secure position. Working in temporary jobs does not justify the termination of need-based alimony. She began working in a job registered with the Social Security Institution (SGK) after the divorce. Considering that it is not possible for her to live on the alimony she receives under current economic conditions, it is obligatory for her to enter the workforce and work. Therefore, the court must decide accordingly, acknowledging that the minimum wage will not eliminate poverty, that the request for termination actually constitutes a request for reduction, and that this situation should be taken into account as a factor in reducing the alimony amount.”
(Supreme Court 3rd Civil Chamber, Case No. 2015/9825, Decision No. 2015/13574, dated 07.09.2015)
“The plaintiff woman works as a factory worker earning minimum wage, lives in a rented house, and has no assets, whereas the defendant man is retired, also works as a security guard, and according to the social investigation report, lives in a house he owns. An income at the minimum wage level is not sufficient to lift a person out of poverty. In this case, the conditions for need-based alimony have been met in favor of the plaintiff woman, and the regional appellate court’s rejection of her alimony claim was incorrect and required annulment.
Considering the parties’ established economic and social conditions, the degree of fault in the events leading to the divorce, the purchasing power of money, the violation of personal rights, and the actual and expected interests harmed, the material and moral compensation awarded in favor of the plaintiff woman is insufficient. In light of the principle of equity stated in Article 4 of the Turkish Civil Code and the provisions of Articles 50 and 51 of the Turkish Code of Obligations, a more appropriate amount of material and moral compensation should be awarded. The judgment made without considering these aspects was found incorrect and required annulment.”
(Supreme Court 2nd Civil Chamber, Case No. 2022/3298, Decision No. 2022/5856, dated 15.06.2022)
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