1. Purpose of Maintenance
Unlike other types of alimony, maintenance is determined without taking into account the fault rate of the spouses. The reason why the fault rate is not taken into account is the obligations arising from the parents' status. Even if the party to be awarded maintenance has no fault, he/she will not be able to get rid of the maintenance obligation.
It should also be noted that alimony for maintenance can be subject not only in divorce proceedings but also in separation proceedings, which is another type of proceeding specified in the Turkish Civil Code (“TCC”).
The purpose of alimony is for the spouse who does not have custody of the child to meet the needs of the joint child; education, housing, clothing, etc. It is a type of alimony organized in order to meet the needs of the joint child by making payments to the spouse who has custody.
2. Regulation of Maintenance in Turkish Law
This type of alimony is protected and regulated under Articles 327 et seq. of the TCC.
3.Persons Authorized to Request Alimony
Article 329 of the Civil Code - (1) The mother or father who actually takes care of the minor may file an alimony lawsuit on behalf of the minor against the other. If necessary for the minor who does not have the power of discernment, the alimony lawsuit may also be filed by the appointed trustee or guardian. A minor who has the power of discernment may also file an alimony lawsuit.
As it can be understood from the relevant article, maintenance is a right dependent on custody. The important factor here is that even if the other spouse has custody and the other party actually cares for the joint child, he/she will not be able to claim this alimony since he/she does not have the right of custody.
4.Ex officio Supervision of Alimony by the Judge
The judge may award maintenance ex officio, even in the absence of a request. The fact that the custodial party is rich or has assets over the joint child will not have a negative effect.
5.Commencement of Maintenance
It starts with the finalization of the divorce or separation case.
6.Determination of Amount and Method of Payment
Pursuant to Article 330 of the TCC, the discretion of the amount of alimony is specified.
Article 330- (1)The amount of alimony shall be determined by taking into consideration the needs of the child and the living conditions and solvency of the parents. (2)The income of the child shall also be taken into consideration in determining the amount of alimony. (3)The judge may, upon request, determine the amount of alimony to be paid in future years according to the social and economic conditions of the parties.
While determining the alimony, the judge decides on many criteria such as food, clothing, shelter, education, health, social factors, vacation, travel, etc.
Unless otherwise agreed, the amount of alimony is determined in Turkish Lira. The parties may agree on payment in foreign currency.
7.Matters to be Considered When Paying Alimony Debt
Payment must be made monthly and in advance. When sending the payment, it is important to write the subject of the payment in the explanation section of the receipt in order to prevent problems that may arise in the future.
8.Subsequent Process in Case of Waiver of Alimony During Divorce Proceedings
This does not eliminate the right to request alimony again. There is a right to request alimony with a separate lawsuit after the divorce case.
9.Failure to Request Alimony in an Uncontested Divorce Case
The fact that it is not requested in the uncontested divorce protocol does not mean that it cannot be requested in the future, after the uncontested divorce decision is finalized, a separate lawsuit is filed and alimony is requested.
10.Termination of Alimony
Termination shall be automatic in the following cases.
Adulthood, The principle of the joint child's coming of age will automatically terminate. Adulthood occurs upon reaching the age of 18, marriage or the court's decision to render the child an adult.
As an exception to this situation, even if the joint child reaches the age of 18 and becomes an adult, if his/her education continues, the party who has the custody of the child may file a separate lawsuit and request the award of educational alimony.
Death, The child alimony obligation ends with the death of the alimony obligor who does not have the right of custody. However, if the alimony obligor has not paid the amounts due before his/her death, the relevant amounts may be claimed from the heirs of the alimony obligor.
11.Non-payment of Maintenance
If the party obliged to pay the alimony fails to pay, enforcement proceedings are initiated to collect the payment. The said proceeding will be collected by way of enforcement with writ of execution. Payments can be made to the party by means such as salary attachment, movable immovable attachment.
If the collection cannot be achieved through these means, Article 334 of the Enforcement and Bankruptcy Law (“EBL”) comes into effect.
Penalty for failure to comply with the decisions on alimony Article 344 - (Amended: 31/5/2005-5358/15 Art.) The debtor who fails to fulfill the requirements of the decisions on alimony shall, upon complaint of the creditor, be sentenced to imprisonment for up to three months. If the requirements of the decision are fulfilled after the imprisonment is started, the debtor shall be released. In the event that the debtor has filed a lawsuit for the abolition or reduction of alimony, the imposition of compulsory imprisonment may be left to the end of this lawsuit, taking into account the reasons put forward by the debtor.