The bond that holds a family together is not merely emotional in character; economic solidarity is one of the load-bearing elements of that structure as well. Turkish law has taken this solidarity out of the realm of moral expectation and turned it into an obligation backed by sanction. Assistance alimony is the institution that enables a person who has become unable to support themselves by their own means to obtain regular support from close relatives whose financial position is comparatively favourable.
In the public mind the concept of alimony is for the most part perceived as a consequence of divorce. The field of application of assistance alimony is, however, far wider than that, and it does not depend on the existence of a marital relationship. An elderly mother or father left without income, a sibling who has fallen into economic hardship, or an adult child unable to meet their own subsistence may turn to close relatives of sound financial means and claim this support.
In this briefing note we assess between whom assistance alimony arises, the conditions required, the criteria by which the amount is fixed, the duration of the payment, and the circumstances in which the obligation falls away.
What Is Assistance Alimony?
Assistance alimony may be defined as a periodic payment made by the economically stronger of persons connected by close kinship to the other, who is in hardship. At the foundation of the institution lies the idea that members of a family should look after one another, and it is regulated in Article 364 of the Turkish Civil Code No. 4721.
The Statutory Basis
The provision that constitutes the source of the obligation reads as follows:
Turkish Civil Code No. 4721, Art. 364
“Everyone is obliged to assist, in proportion to their means, their ascendants, descendants and siblings who would fall into poverty if not assisted.”
According to the framework drawn by the Article, a reciprocal duty of support arises as between ascendants, descendants and siblings. If a person who is a mother, father, child or sibling is in economic straits, they may seek a contribution from the relative whose means are ample. The sum to be paid is fixed by the judge, weighing together the income picture of the two parties and the genuine need of the claimant.
The Purpose of the Institution
The aim of the provision is to secure solidarity within the family in law and to provide a minimum means of subsistence to an individual who has fallen to the poverty line. The legislator has regarded the protection of family ties as a matter of public interest and has placed this obligation on a statutory footing. The protective function of the institution becomes particularly apparent in the following situations:
- A child who is continuing their education but whose child support has been discontinued upon attaining majority may benefit from this support where the conditions are met.
- If one of the siblings has become unable to meet their subsistence, they may seek a contribution from their other siblings whose financial position is favourable.
- Elderly parents who have no income or retirement pension of any kind may turn to their children and bring a claim.
The sum is determined having regard to the parties’ capacity to pay and the level of need, and it acquires binding force by the court’s judgment. Conversely, if the budget of the person from whom support is sought cannot bear such a burden, there is also the possibility that the judge will not award alimony.
What Are the Conditions for Assistance Alimony?
Not every individual experiencing economic difficulty may advance this claim; the institution is provided for a limited circle of persons. Within the framework of Article 364 of the Turkish Civil Code No. 4721, a number of elements must be present together for the claim to succeed, and the court examines them separately.
- A close bond of kinship must exist between the parties: The right of claim is recognised only as regards ascendants, descendants and siblings. No such obligation can be spoken of between more distant relatives such as uncles, aunts or cousins.
- The claimant must face the danger of falling into poverty: The person claiming alimony must be in a position of being unable to meet their basic needs by their own means. Persons with no income at all, those deprived of the opportunity to work, and those who work yet cannot balance their subsistence fall within this scope. The legal footing of the claim is markedly stronger in the case of students, elderly persons, disabled persons and individuals with an ongoing illness.
- The person from whom alimony is claimed must have the capacity to pay: The obligation arises only where there is an ability to pay. If the person from whom support is expected is themselves in economic difficulty, lacks the minimum income needed to maintain their own subsistence, or has other persons in their charge, this may result in the claim being dismissed.
- A balance consistent with equity must be struck: The court compares the financial picture of the two parties, passing it through the filter of the principle of equity. It is essential that the alimony obligor should not be placed under an obligation so heavy as to endanger the subsistence of themselves and of those in their charge.
How Is the Amount of Assistance Alimony Determined?
The sum to be paid and the manner of payment are assessed by the judge having regard to the parties’ economic circumstances and the extent of the need. In investigating whether the claimant is genuinely in need, the court also measures the obligor’s financial capacity and brings the two sets of data together along the line of equity. The criteria that come to the fore in that assessment are set out below.
The Claimant’s Need and Economic Position
In investigating whether the party claiming alimony is genuinely in need of assistance, the judge looks to the following data:
- Whether they have earnings of a continuing nature
- The level of their essential expenditure such as housing, food, medical treatment and education
- Whether they lack the capacity to work for reasons such as advanced age, disability or being a student
If the claimant can establish by concrete documents that they are unable to meet their own subsistence, it becomes possible for the court to award a sum it considers appropriate.
The Obligor’s Financial Capacity
Because the payment must be proportionate to the person’s economic strength, the court examines the following points:
- The overall size of salary, immovable property, bank accounts and other items of earnings
- Whether they already bear a duty of support towards their own family or towards other persons
- Whether the existing income is capable of meeting the payment sought
If the obligor’s budget is not suited to such a payment, the court will either fix a sum at a symbolic level or may dismiss the claim altogether.
The Social and Economic Position of the Parties
In making its assessment the court looks not only at income figures; the standard of living maintained by the parties is also brought into the picture. Where the obligor earns a high income and enjoys a markedly comfortable level of prosperity, the alimony may be adjusted upwards to match. In the case of an obligor who can barely meet their own essential outgoings, the judge is expected to settle on a lower sum.
Current Economic Conditions and the Minimum Subsistence Level
The court also takes into account the country’s economic course, rates of inflation and the conditions of minimum subsistence. An obligor whose income remains below the minimum wage cannot be expected to be burdened with a high payment. Increases in the cost of living may, for their part, lay the ground for a future claim for the alimony to be increased or reduced.
The Duration of Assistance Alimony
How long the payment will continue depends on the claimant’s economic position and on whether the need persists.
- Open-ended alimony: If the state of need is of a lasting character, or if there is a need for support extending over the long term, the judge may award alimony without providing for any end date.
- Alimony for a fixed period: If the need has a foreseeable moment of ending, the period is limited; alimony awarded to a sibling in education until the completion of their studies is the typical example.
The sum awarded is not, however, unalterable. Where the financial circumstances of the paying party deteriorate, or where the economic position of the person receiving support improves, the reduction of the alimony or its removal altogether may arise.
Termination of the Payment Obligation
Assistance alimony is not an obligation that lasts for ever. Where certain facts materialise, the obligation may fall away of its own accord, or it may be removed by court decision. The principal grounds of termination are as follows.
Improvement in the Economic Position of the Person Receiving Support
The basis of the alimony is that the creditor is in poverty. If that person takes up employment, begins to earn a regular income, or comes into a comfortable financial position, the reason for the obligation’s existence falls away.
By way of example, the alimony of a young person who has completed their education and entered working life, or of a person whose assets have expanded through a significant inheritance, may be brought to an end.
Deterioration in the Obligor’s Financial Position
When the paying party becomes economically weaker, they may apply to the court and seek a reduction in the sum or the removal of the alimony altogether. Developments such as loss of employment, bankruptcy and serious illness directly weaken the ability to pay, and the judge takes these facts into consideration. In reaching a decision, not only the obligor’s position but also that of the other party is weighed together, and an attempt is made to arrive at a balanced outcome.
The Creditor’s Marriage or Living a Life Equivalent to Marriage
If the person receiving alimony marries in a civil ceremony, the right falls away of its own accord. Even where there is no official marriage, if it is established that the person has been living with another for a long time or has in fact set up a family household, the court may decide to remove the alimony.
The Death of One of the Parties
With the death of the person receiving support, the obligation comes to an end automatically.
Where the person making the payment dies, this obligation does not pass to the heirs. If, however, the heirs consent to continue the payment, an obligation to pay may arise as regards them.
Removal by Court Decision
The party alleging that the circumstances have changed — whether that party is the obligor or the creditor — has the right to apply to the court. The judge re-examines the economic and social position of the two parties and rules on the continuation or termination of the alimony.
Wrongful Acts or Abuse of Right by the Creditor
If the person receiving alimony commits a serious offence against the relative making the payment, or displays conduct in bad faith, the court may remove the obligation. Likewise, if it is established that the money received is being used for purposes other than those intended — on luxury spending, for instance — the obligor may bring an action seeking the termination of the payment.
The Courts with Subject-Matter and Territorial Jurisdiction
A person seeking an award of alimony or the removal of existing alimony must bring the action before the correct court. Subject-matter and territorial jurisdiction are determined on the basis of the provisions of the Code of Civil Procedure No. 6100 and the Turkish Civil Code No. 4721.
The Court with Subject-Matter Jurisdiction
In disputes concerning assistance alimony, subject-matter jurisdiction lies with the Family Court; the basis for this is Article 366 of the Turkish Civil Code No. 4721. If no separate family court has been established in the place where the action is to be brought, the Civil Court of First Instance hears the case “in its capacity as a family court”.
The Court with Territorial Jurisdiction
The rule on territorial jurisdiction is laid down in Article 365 of the Turkish Civil Code No. 4721. The claimant is afforded a choice on this point; the action may be brought in one of the following places:
- The family court of the place of residence of the claimant seeking alimony
- The family court of the place of residence of the respondent from whom alimony is sought
Example: Where the person seeking alimony lives in Istanbul and the relative from whom payment is expected lives in Ankara, the action may be brought in either of those two places.
The Independent Legal Assessment
The element that determines the outcome in assistance alimony actions is for the most part the quality of the evidential exercise. The court’s conviction as to need and ability to pay rests on income documents, medical reports, student certificates and the investigation into social and economic circumstances. Claims supported only by abstract assertions are for the most part dismissed. Nor is the alimony awarded permanent; when circumstances change it may be revisited through actions for increase, reduction or removal.
In a given dispute we recommend that the following headings be reviewed in advance:
- Confirming whether the bond of kinship falls within the circle enumerated in the Act
- Substantiating the allegation of need with income, expenditure and medical documents
- Raising in the statement of claim the requests for investigation into the obligor’s capacity to pay
- Clarifying from the outset whether the alimony is sought open-ended or for a fixed period
- Planning for actions to vary the award against the possibility that circumstances change in future
Independent Legal provides advisory and litigation services across the whole of the process in disputes arising from family law, from the preparation of the alimony claim through to enforcement of the judgment and subsequent variation actions.