When the continuation of the marital union is significantly shaken beyond expectation, the divorce process is initiated between the parties to terminate the existing marriage. However, the divorce process brings along certain legal concepts, one of which is alimony.
Alimony, in its general definition, refers to the payment made by one party to the other, as ordered by the court, to support the financially disadvantaged party during the ongoing divorce proceedings or following the finalization of the divorce.
TYPES OF ALIMONY
- ALIMONY FOR NEED: Alimony for need is the type of alimony that can be requested by the party who will fall into financial difficulty as a result of divorce, depending on the financial capacity of the other party. However, it should be noted that although the party requesting alimony is not required to be faultless, they should not be more at fault than the other party. This type of alimony is regulated in Article 175 of the Turkish Civil Code (TCC). The financial capacity of the paying party is taken into consideration when determining the amount of alimony. The term “poor” is accepted by the Court for individuals who cannot meet their essential needs.
Even if alimony for need has not been requested during the divorce process or if it has been requested but the court did not deem it necessary to award alimony, it can still be requested based on changed circumstances after the divorce.
If alimony for need has been awarded alongside the divorce proceedings, it cannot be enforced until the finalization of the judgment. However, if a separate alimony case has been filed apart from the divorce proceedings and alimony for need has been awarded, it can be enforced without waiting for the finalization of the judgment.
The judge cannot award alimony spontaneously. Therefore, during the legal process, the parties must explicitly express their requests for alimony for need. Later on, the awarded alimony amount can be requested to be adjusted and either decreased or increased to accommodate changing circumstances.
- PARTICIPATION ALIMONY: After the divorce, participation alimony is the type of alimony that the party who does not have custody of the children is obligated to pay to contribute to the child’s needs, including education, accommodation, and healthcare. The aim of this type of alimony is to ensure the non-custodial parent’s participation in the child’s expenses and needs. As a general rule, it ends when the child reaches adulthood. However, if there are mandatory expenses for the child’s education even after reaching adulthood, participation alimony may continue.
Upon the finalization of the judgment resulting from the divorce, the enforceable participation alimony can be executed. There is no need for explicit requests from the parties for the awarding of participation alimony. Due to its legal obligation, the judge can award participation alimony spontaneously.
- PROVISIONAL ALIMONY: Provisional alimony is the type of alimony that one party assumes the payment for the other party’s housing and livelihood based solely on their financial situation, regardless of their faults. Provisional alimony continues from the filing date of the lawsuit until the finalization of the judgment in that lawsuit.
During the ongoing lawsuit, if the temporary custody of the children is not granted to the party, the alimony that must be paid for the children’s care and needs is also called provisional alimony. If the lawsuit ends with divorce, the provisional alimony continues as participation alimony based on the court’s decision.
If temporary custody of the child remains with the parent and the other parent is granted temporary custody, the starting date of provisional alimony is the filing date of the lawsuit. If temporary custody is granted to the other parent, the date of the custody decision is the starting date of alimony.
If an interim alimony is ruled, an interim execution can be initiated through an interim decision of the court. As a result of initiating the execution through interim execution, the opposing party has the right to object to the execution. If the execution is stayed as a result of the objection, the competent court for the cancellation of the objection filed by the party initiating the execution is the family court.
When a decision is made for interim alimony, the alimony is considered to have accrued as of the date of the lawsuit. However, no interest is calculated between the date of the lawsuit and the date the alimony is awarded. The calculation of interest should be based on the date on which alimony was awarded according to the interim decision.
4- ASSISTANCE ALIMONY: Assistance alimony refers to the alimony that a person is obligated to provide to their descendants and ascendants, as well as their siblings, who would fall into poverty if not supported. Article 364 of the Turkish Civil Code (TMK) regulates this type of alimony.
In assistance alimony claims, the order of inheritance is taken into consideration. Therefore,
1- Children and Grandchildren
2- Mother and Father
3- Siblings
4- Grandmother and Grandfather
can each request alimony in that order.
COMPETENT AND JURISDICTIONAL COURT IN ALIMONY CASES In alimony claims requested together with a divorce lawsuit, the competent and jurisdictional court is subject to the necessary procedures for determining the court in the divorce lawsuit. However, as mentioned, a lawsuit can also be filed for alimony after the divorce lawsuit. In this case, jurisdiction is regulated under Article 177 of the Turkish Civil Code (TMK). According to this article:
“In alimony lawsuits filed after divorce, the court of the place of residence of the alimony recipient shall have jurisdiction.”
The competent court in alimony cases is the “Family Court,” regardless of whether it is filed together with a divorce lawsuit or after a divorce lawsuit.
FEES IN ALIMONY CASES While alimony claims can be made within a divorce lawsuit without a separate fee, a proportional fee calculation will be made based on the value of the claim for alimony requested after the divorce lawsuit.
(Court of Cassation 2nd Civil Chamber, E. 2016/5078, K. 2017/5338, 4.5.2017)
WHAT IS THE PENALTY FOR FAILURE TO PAY ALIMONY? If the amount of alimony for which the alimony debtor is responsible is not paid, an enforcement procedure can be initiated against them. Additionally, the delinquent debtor may also be subject to coercive imprisonment for not paying alimony. The regulation regarding coercive imprisonment is stipulated in Article 344 of the Execution and Bankruptcy Law (İİK). According to this law:
“If the debtor who fails to fulfill the obligations arising from alimony decisions is complained against by the creditor, a coercive imprisonment of up to three months shall be imposed. If the obligations are fulfilled after the enforcement has begun, the debtor shall be released.”
The type of alimony does not matter for the imposition of coercive imprisonment. If any alimony is unpaid and the creditor complains, coercive imprisonment can be imposed on the debtor. The competent court for this complaint filed by the creditor is the Execution Criminal Courts. However, it should be noted that if there is unpaid alimony debt for three months in arrears, coercive imprisonment can be requested.
Coercive imprisonment does not terminate the alimony debt. However, during the period of coercive imprisonment, if the creditor withdraws the complaint or the debtor pays the alimony debt, the coercive imprisonment can be terminated.
Coercive imprisonment is a sanction arising from the Execution and Bankruptcy Law and is not considered a crime under the Turkish Penal Code. Therefore, the imposition of coercive imprisonment does not result in the recording of this penalty in the person’s Criminal Record.
WHEN DOES THE OBLIGATION TO PAY ALIMONY END? When alimony is ruled, it is determined indefinitely. However, in the presence of certain circumstances, the awarded alimony may cease. These circumstances include:
- The recipient of alimony getting married
- The recipient of alimony cohabiting through a religious marriage without an official marriage
- The recipient of alimony leading an immoral life
- The improvement of the financial situation of the recipient of alimony, and the elimination of the previously considered poor condition
- The death of the recipient of alimony or the party paying alimony.
In our office located in the İzmit district of Kocaeli province, we provide consultancy and legal representation services in alimony matters, as well as all aspects of the divorce process, with a specialized and experienced divorce attorney.