Types of Alimony and Alimony Lawsuit

The word "nafaka" (alimony) in Turkish refers to the essentials needed for subsistence. In Turkish law, alimony has evolved as a concept specific to family law, and there are four types of alimony. The issue of alimony is regulated in our law by the Turkish Civil Code. In the event of divorce, the party who will fall into poverty can request alimony from the other party, indefinitely and proportionate to their financial ability, provided that their fault is not more severe. The fault of the party obliged to pay alimony is not considered. In other words, for alimony to be granted to the impoverished spouse, it is not required that the paying spouse is at fault. However, the spouse receiving alimony should not be more at fault. It should be noted that in Turkish law, alimony is not only received by women; it can also be granted to men who will fall into poverty or who have lower economic power.

Although the law states that alimony is granted indefinitely, there are certain circumstances where it can be terminated. Alimony automatically ceases if the receiving spouse remarries, and can be terminated by a court order upon request if the spouse finds employment or their economic situation improves.

In Turkish law, there are four types of alimony, which are:

1. Interim Alimony: As the name suggests, this type of alimony is temporary. It is given before the finalization of the divorce case. This type of alimony is requested either before or during the divorce proceedings. The amount can be increased, decreased, or completely removed depending on the changing conditions during the case. The judge, after investigating the financial strengths of both parties, rules in favor of the party who will face financial hardship. Fault is not considered when ruling on interim alimony. The ruling is made in favor of the party who will face economic difficulties during the case. Interim alimony can also be ruled in favor of a minor child or the temporary custodian of the child. If the interim alimony continues in favor of one party, it turns into poverty alimony; if it is for a child, it becomes contribution alimony.

2. Poverty Alimony: In this type of alimony, the financial situations and assets of the spouses are investigated, and decisions are made accordingly. Here, the fault becomes significant. If the parties are equally at fault or the alimony obligor is less at fault or not at fault, the judge can rule for poverty alimony. The spouse requesting poverty alimony should not be more at fault than the other spouse. Otherwise, their request will be denied. One of the conditions for requesting poverty alimony is that the requesting spouse must fall into poverty due to the divorce. A spouse who will not fall into poverty and can sustain their life with their own assets and income cannot request poverty alimony. The judge cannot rule on poverty alimony alone; there must be a request from the concerned party. Poverty alimony can be requested both during and after the divorce case. However, if it is requested after the divorce, the request for poverty alimony must be made within a one-year period after the finalization of the divorce decision.

3. Contribution Alimony: This type of alimony is paid by the spouse who does not receive custody of the joint child in a divorce case, to the custodial spouse for the maintenance, education, and other expenses of the child. The judge can rule on contribution alimony in favor of the minor child without any request. Since the primary concern here is the welfare of the joint child, the fault of the spouses is irrelevant. The alimony previously decided under the name of interim alimony during the divorce proceedings is ordered to be paid as contribution alimony upon the finalization of the divorce or separation decision. Article 329 of the Turkish Civil Code lists those who can request contribution alimony. This article states, "The parent who actually takes care of the minor can file an alimony lawsuit against the other parent on behalf of the child. In necessary cases for a minor who lacks the capacity to discern, the alimony lawsuit can also be opened by an appointed guardian or custodian. A minor who has the capacity to discern can also file an alimony lawsuit." As a general rule, contribution alimony ends when the child turns 18, gets married, or is legally emancipated according to Article 12 of the Turkish Civil Code.

4. Support Alimony: This type of alimony is granted to impoverished descendants, ascendants, and siblings upon request, effective from the date of the lawsuit. Individuals who do not have income sufficient to cover necessary and mandatory expenses such as food, clothing, housing, health, transportation, culture, and education are considered impoverished. Support alimony can be requested following the order of inheritance. While a creditor can request alimony from descendants, they cannot make this request to siblings. In support alimony cases, the competent court is the residence court of one of the parties.

In case of non-payment of alimony, it can be collected through compulsory enforcement. The legislator has introduced some measures to facilitate the collection of alimony.

Alimony claims are listed among the first rank debts in the distribution schedule to be prepared according to the Execution and Bankruptcy Law. Therefore, in case of the sale of the alimony debtor's movable or immovable properties through enforcement, the alimony claim is paid primarily from the sales proceeds.

A garnishment can be placed on the retirement pension for the collection of alimony claims.

In case of garnishment on the alimony debtor's salary, the entire monthly alimony amount is deducted from the salary.

Even if there are prior garnishments on the alimony debtor's salary, the monthly alimony amount is deducted independently from the previous garnishments.

If the alimony debtor fails to pay the monthly alimony amount, they can be sentenced to up to three months of coercive imprisonment upon the complaint of the alimony creditor, provided other conditions are also met.

Requesting Alimony in a Divorce Case

A party who needs or anticipates needing alimony can request it as part of the ongoing divorce proceedings, instead of opening a separate alimony case after the divorce. Alimony is considered an ancillary issue in a divorce case, and there is no issue in requesting it as part of the divorce proceedings. In fact, doing so is preferred for procedural economy.

Alimony can be requested in both consensual and contested divorce cases. In a consensual divorce case, the decision on alimony, except for certain exceptional circumstances regarding contribution alimony, depends on the will of the parties. However, in contested divorce cases, all matters related to alimony must be proven or at least convince the judge of the necessity to award alimony.

a) Alimony in Consensual Divorce Cases

Consensual divorce case: This occurs when both parties reach an agreement on all issues related to the divorce, including its ancillaries (alimony, compensation, custody), jewelry, and property division, and submit a jointly signed consensual divorce protocol along with the divorce petition to the court. If there are no legal obstacles, the case typically concludes in a single hearing.

If alimony is not requested in the consensual divorce protocol, it is not possible to later demand material and moral compensation or poverty alimony. This is because fault is a condition for material and moral compensation and poverty alimony in a divorce, and fault cannot be determined in a consensual divorce as it can in a contested divorce. Therefore, poverty alimony not requested in a consensual divorce case cannot be demanded later. However, contribution alimony for a minor child is a matter of public order. Therefore, even if nothing about contribution alimony is mentioned in the consensual divorce protocol, it can still be requested in a separate alimony case after the divorce decision. In this context, the principle of "the best interest of the child" is considered.

Even if the parties waive their right to contribution alimony, it can still be a subject of litigation or a later increase in the agreed amount can be sought. Since contribution alimony is ruled in favor of the child, any waiver by the parties is not valid. Nowadays, judges in family courts examining consensual divorce cases often rule a nominal amount of contribution alimony on their own initiative, even if the parties do not request it, as it relates to the child's expenses and is a matter of public order.

b) Alimony in Contested Divorce Cases

In contested divorce cases, unlike consensual divorce cases, the wills and requests of the parties alone are not sufficient for a judgment. All disputed matters between the parties must be proven with legally valid evidence, and the judge must form a sufficient moral conviction on the subject of the request. Thus, in a contested divorce case: Interim alimony can be awarded during the case, and poverty and contribution alimony can be awarded afterward.

Interim alimony can be awarded during a contested divorce case, which can later continue as poverty and contribution alimony. Like in custody matters, family court judges usually wait for the preparation and submission of a SED Report (Social and Economic Condition Report). However, in practice, judges can award interim alimony without waiting for this report in urgent situations.

Appealing the decision on interim alimony is possible. For this, evidence supporting the claims must be presented. For example, a spouse paying interim alimony must provide evidence that their economic situation does not allow them to pay such alimony or that they cannot afford the amount specified in the interim decision. Evidence such as rental contracts, receipts for rent, utilities, loan payments, etc., can be presented.,

Regarding the final decision on poverty or contribution alimony awarded along with the divorce judgment, it is necessary to pursue an appeal. Interim alimony, effective during the divorce case, is followed up through non-finalized enforcement proceedings. However, as contribution and poverty alimony are now considered as final judgments, finalized enforcement proceedings must be initiated.

Alimony Lawsuit

An alimony lawsuit arises when a party, who did not request alimony during the contested or consensual divorce, wishes to do so following the completion and finalization of the divorce. The absence of an alimony request during the divorce does not mean that alimony cannot be requested later. However, this is the general rule, and there are exceptions due to issues such as statute of limitations and fault determination.

A critical point regarding alimony lawsuits is that if poverty alimony was not requested or explicitly waived in a consensual divorce case, it is not possible to file an alimony lawsuit later within the designated period. If the right is explicitly waived, there is no existing right; if it was not waived but not requested, leading to no ruling on poverty alimony, later ruling on poverty alimony is not possible since one of its conditions is the determination of fault, which is not done in consensual divorce cases. However, since contribution alimony for a child is related to the child's best interest and public order, and does not require a fault condition, the party with custody can always file a lawsuit against the other party for contribution alimony.

Statute of Limitations or Preclusive Periods

After one year from the finalization of the divorce judgment, the rights to request alimony will be subject to the statute of limitations. The rights to file lawsuits arising from the termination of marriage due to divorce expire one year after the finalization of the divorce judgment. This period is a statute of limitations, not a preclusive period, so the court does not consider it on its own initiative. Unless raised by the opposing party, the lawsuit will not be dismissed due to the statute of limitations. However, if the defendant raises the statute of limitations, the case will be dismissed on these grounds.

Competent and Authorized Court

The competent court for alimony lawsuits is the Family Court. In places where there is no Family Court, the Civil Court of First Instance is competent. The Civil Court of First Instance deals with these cases as a Family Court.

Regarding the competent court for alimony lawsuits, in cases filed after divorce, the court in the residence area of the alimony creditor is competent.

The above-mentioned special jurisdiction rule does not eliminate the general jurisdiction rule. The generally competent court is the court in the residence of the defendant, real or legal person, at the date the lawsuit is filed. Thus, the competent courts for alimony lawsuits filed after divorce can be stated as follows: The court in the residence of the defendant or the plaintiff at the time of filing the lawsuit.

Alimony Increase Lawsuit

An alimony increase lawsuit is a type of case that can be filed by the alimony creditor as long as the alimony obligation continues, when the amount of alimony already ruled by the court becomes insufficient due to current conditions. Particularly in Turkey, with high inflation rates in recent years, alimony increase lawsuits have become essential. There is no need to file a separate alimony increase lawsuit for an interim alimony amount ruled in an ongoing divorce case. During the divorce case, if the interim alimony is deemed insufficient, a petition can be submitted to the court to update the alimony amount, along with evidence. If the divorce case is finalized, as mentioned above, a separate alimony increase lawsuit must be filed. A lawsuit for just increasing alimony can be filed until the alimony debtor's obligation ends.

Frequently Asked Questions

Can Alimony be Awarded for a Limited Time?

The duration of alimony payments can be evaluated differently for each type of alimony. Interim alimony is paid until the conclusion of the case. Poverty alimony ends when one of the spouses dies, the alimony-receiving spouse remarries, or the poverty situation of the alimony-receiving spouse is resolved. Contribution alimony ends when the joint children reach the age of 18. However, even if the child is over 18, they can request support alimony from their parents if they continue their education. Support alimony ends when the need for assistance is no longer present.

Will Indefinite Alimony be Eliminated?

In Turkey, especially in recent years, the increase in divorce cases has made indefinite alimony a frequent topic of discussion. Indefinite alimony is still valid in our legal system for poverty alimony. Therefore, even marriages that lasted only 1 month or 1 day can result in a lifelong poverty alimony obligation for the other spouse after the marriage ends. Until a new legal regulation is made, the practice of indefinite alimony will not end.

Are There Penalties for Not Paying Alimony?

If the alimony obligor does not pay the alimony, the alimony creditor can initiate enforcement proceedings. If collection is not possible through methods like movable or immovable property seizure, bank account seizure, or wage garnishment following the enforcement proceedings, the alimony obligor can be sued. If there are three months of unpaid alimony, the alimony obligor can be subject to coercive imprisonment for up to 90 (ninety) days. This coercive imprisonment does not apply to interim alimony. Since interim alimony is ruled with an interim decision, it is subject to non-finalized enforcement proceedings when it comes to collection.