Divorce reshapes not only the emotional world of the parties but also their economic balance, and the most hotly debated heading in that process is alimony. The common belief is that alimony is awarded only to a spouse with no earnings whatsoever; in practice, however, the position is not so clear-cut. A spouse who works in a regular job and draws a salary may also lawfully bring a claim for alimony.
The decisive question is this: does the income the spouse receives suffice to relieve them of financial hardship and to preserve the standard of living maintained throughout the marriage? When the courts examine a claim they look not at whether the person works but at the nature and adequacy of the income. Working for a wage is not, in itself, an obstacle that extinguishes the right to alimony.
In this briefing note we first set out the legal framework of alimony, then examine separately the position of a spouse with an income in respect of interim alimony, poverty alimony and child support; we then assess the developments that bring an awarded alimony to an end and the direction of the case law on the point.
The Concept of Alimony and Its Legal Framework
Alimony is an institution designed to remove the economic imbalance between the parties and to prevent hardship when separation or divorce arises. In Turkish law, alimony appears as a payment fixed by court decision in order to meet the basic needs of a spouse or a child who has difficulty making ends meet. The recipient of that payment is not always the party with no income at all; in certain circumstances a working spouse may also bring a claim.
The Legal Definition of the Concept
The provisions on alimony are spread across various rules of the Turkish Civil Code No. 4721, foremost among them Article 175. In general terms, alimony is defined as financial support awarded by the court in favour of a person in financial difficulty.
Conditions Required for an Award of Alimony
Before the judge can award alimony, a series of criteria must be weighed together. The principal conditions applied in practice are as follows:
- The specific conditions of the type of alimony claimed must have materialised; in poverty alimony, for instance, the condition is that the spouse falls into economic hardship following the divorce.
- The financial means of the party who is to pay must be adequate for the purpose; the economic position of the obligor also falls within the court’s field of examination.
- The claimant party must be in an economically weak position; this does not require having no income at all, it is enough that the party has difficulty making ends meet.
- For poverty alimony, the claimant spouse must not be at greater fault in the divorce than the other party.
Whether a working spouse is entitled to alimony is determined by assessing together the level of that spouse’s income, the standard of living within the marriage and the economic consequences of the divorce.
The Position of a Working Spouse in Respect of Interim Alimony
While the divorce action is pending, the court may award interim alimony so that the parties are not left economically exposed. Since the marriage subsists in law until the judgment becomes final, the spouses’ obligation to look after and support one another also continues. Interim alimony is precisely the alimony of a provisional character granted during that period to protect the party in the weaker financial position.
Whether a spouse who has an income may benefit from this alimony is a question that requires separate treatment. We examine the point within its legal framework below.
Temporary Financial Support During the Proceedings
Interim alimony is awarded provisionally in favour of one of the spouses or of the joint children while divorce or separation proceedings are pending. Even where no such request has come from the parties, the judge may award interim alimony of the court’s own motion for a spouse seen to be in economic difficulty.
A striking feature of this type of alimony is that no examination of fault is carried out. Because the parties’ respective degrees of fault have not yet been established while the proceedings are ongoing, it is not settled which spouse is at greater fault. For that reason there is no obstacle to a spouse who is in the more blameworthy position in the action seeking interim alimony.
Interim alimony continues to exist until the divorce judgment becomes final; with finality, the obligation falls away.
How a Salaried Spouse’s Claim Is Treated
The widespread view that only spouses without income can receive interim alimony is not correct in law. In fixing the amount of the alimony, the parties’ assets, monthly incomes and outgoings are examined as a whole.
The judge will of course investigate whether the claimant spouse works in a job or has any other earnings; the outcome of that investigation does not, however, require the claim to be rejected outright. The decisive criterion is the standard of living maintained within the marital union. A spouse who draws a salary may benefit from alimony if they are unable to preserve that standard during the divorce process.
In short, being in work does not of itself extinguish the right to alimony. The real question is whether the income obtained suffices to maintain the standard to which the spouse became accustomed throughout the marriage. If the income does not meet that criterion, a working spouse may also receive interim alimony.
Interim Alimony for a Working Spouse in Court of Cassation Practice
The decisions of the higher court likewise make it clear that a working spouse may become entitled to interim alimony:
Court of Cassation, 3rd Civil Chamber, Case No. 2018/2243, Decision No. 2018/12795, 13 December 2018
“…The fact that the claimant spouse is working does not relieve the respondent of the obligation to pay interim alimony. Since the marital union legally continues, the spouse who has unjustifiably caused the parties to live apart is obliged to pay alimony by way of interim measure. However, the claimant spouse’s employment must be taken into account in determining the amount of the alimony to be awarded. In this way alimony consistent with the principle of ‘equity’ may be fixed (Turkish Civil Code Art. 4)…”
As is apparent from the decision, the Court of Cassation does not regard being in work as an obstacle to interim alimony; it does, however, treat it as mandatory that this fact be taken into account when the amount is set. The aim pursued is that the standard of living to which the claimant spouse became accustomed during the marriage should be preserved throughout the proceedings as well.
The Position of a Working Spouse in Respect of Poverty Alimony
Poverty alimony is provided for in order to protect the spouse who will face economic difficulty after the divorce. Also referred to publicly as open-ended alimony, this type is financial support paid by one spouse to the other who will fall into poverty because of the divorce, on condition that the recipient is not at greater fault.
The Scope and Conditions of Poverty Alimony
Under Article 175 of the Turkish Civil Code No. 4721, a spouse who will fall into poverty as a result of the divorce may claim poverty alimony from the other spouse, either open-ended or limited to a fixed period, provided that their fault is not the greater.
It is an institution introduced so that the parties do not suffer economic ruin even though the family union comes to an end with the divorce. For alimony to be awarded, the following conditions are expected to be satisfied together:
- The alimony must have been expressly claimed from the court; the judge has no power to award it of their own motion.
- The fault of the claimant spouse must not be greater than that of the other party.
- That spouse must be about to fall into poverty by reason of the divorce.
The point to underline is that poverty alimony does not require the condition of having no income at all. Even a spouse with earnings may claim this alimony if they will suffer a serious economic loss after the divorce compared with their former standard of living.
Does Being in Employment Bar the Claim?
The notion that poverty alimony is available only to spouses who do not work is not sound as a matter of Turkish law. The criterion taken as the basis of the assessment is not whether the person works but whether the income they obtain is sufficient to lift them out of poverty.
On this point the courts weigh in particular the following matters:
- Whether there will be a marked decline in the standard of living after the divorce
- Whether the claimant spouse’s assets and economic strength may be regarded as sufficient
- Whether the existing income is capable of meeting that spouse’s subsistence
For example, although someone working for the minimum wage is legally regarded as a person with an income, the case law emphasises that the minimum wage alone does not suffice to remove poverty. The case law of the Court of Cassation likewise holds that working spouses may receive alimony.
Court of Cassation, 2nd Civil Chamber, Case No. 2017/5265, Decision No. 2018/3602, 20 March 2018
“…given that, according to the investigation into economic and financial circumstances, the wife works on the minimum wage but her income is not at a level that would lift her out of poverty, and that the reasoning of the judgment therefore states that it is appropriate to award poverty alimony in the wife’s favour, the award of poverty alimony in the wife’s favour is in accordance with procedure and with the law…”
Court of Cassation, Assembly of Civil Chambers, Case No. 2019/3-117, Decision No. 2019/1153, 7 November 2019
“…Earning an income at the level of the minimum wage is no bar to poverty alimony. However, this circumstance must be taken into account in determining the amount of the alimony.”
Both decisions show that a spouse with an income may benefit from poverty alimony, and that the income position plays a part only in fixing the amount.
The Factors the Judge Relies On When Assessing Poverty
In examining whether the claimant spouse will fall into poverty, the judge keeps the following headings in view:
- The picture of fault; the claimant spouse must not be at greater fault
- The economic consequences of the divorce, in particular the change in the standard of living
- Capacity to work and the prospect of finding employment, judged by level of education and professional qualifications
- The degree of economic independence, shaped by such factors as salary, rental income and assets
Having assessed these criteria, the judge fixes an amount consistent with the principle of equity. The fact that the spouse is working does not prevent alimony from being awarded; it affects only the sum. If it appears that a spouse working for the minimum wage will fall into poverty after the divorce, the court may take that picture into account and award appropriate alimony.
Child Support and the Working Parent
Although divorce brings the bond between the spouses to an end, it does not extinguish the mother’s and father’s obligation to care for and look after the child. Under the Turkish Civil Code No. 4721, parents are obliged to meet all of the child’s needs until the child attains majority. As a natural consequence of that obligation, the parent who is not granted custody must pay child support in order to contribute to the child’s expenses.
The belief that the parent who holds custody cannot claim child support if they are in work is misplaced. That is because the criterion in this type of alimony is not the economic position of the custodial parent but the needs of the child.
Accordingly, a working spouse may also claim child support so that the other parent contributes to the child’s expenses. The settled practice of the Court of Cassation is to the same effect.
Court of Cassation, 2nd Civil Chamber, Case No. 2019/4872, Decision No. 2019/12356, 16 December 2019
“…In the event of divorce or separation, the party to whom the child has not been entrusted is obliged to contribute, according to their means, to the child’s maintenance and education expenses (Turkish Civil Code Art. 182). However, the contribution of the spouse who has not been granted the exercise of custody to the child’s maintenance and education expenses arises only if that spouse has the financial means. It appears from the investigation into economic and social circumstances carried out by the court through the police that the claimant wife works and has a regular income. Whereas an appropriate amount of child support ought to have been assessed for the joint child whose custody was granted to the father, without regard being had to this matter…”
The decision makes it plain that the fact that the parent holding custody has an income is no obstacle to an award of child support.
Discontinuation and Termination of Alimony
Alimony awarded following a divorce continues to exist within a defined legal framework. Certain developments may nevertheless result in the alimony being removed or brought to an end. In what circumstances alimony awarded to a working spouse will be discontinued is among the questions that arise frequently in practice. Below we address both the grounds for removal and the procedural route.
Grounds Leading to the Removal of Alimony
Discontinuation of alimony is tied to specific conditions laid down in the Turkish Civil Code No. 4721. A change in the creditor’s income position, their remarriage or their attaining economic independence may produce that result.
Under Article 176 of the Turkish Civil Code No. 4721, the circumstances leading to the removal of alimony are as follows:
- The death of the alimony creditor,
- A significant deterioration in the financial means of the alimony obligor,
- The creditor having escaped poverty,
- The creditor maintaining a relationship outside marriage but resembling marriage,
- The remarriage of the creditor.
Where one of these circumstances arises, an application may be made to the court for the alimony to be brought to an end or removed.
The Moment of Termination According to the Type of Alimony
Termination follows a different course depending on the type of alimony:
- Interim alimony falls away automatically once the divorce judgment becomes final.
- Poverty alimony comes to an end if the creditor spouse remarries or escapes poverty.
- Child support ends when the child attains majority; if the child is continuing their education, it may continue until the age of 25.
If the alimony obligor can prove that a serious deterioration has occurred in their own economic circumstances, they may seek a reduction in the alimony or its removal altogether.
Termination Criteria in the Case Law
The case law of the Court of Cassation sets out certain criteria as regards the discontinuation of alimony. Two example decisions on the subject are as follows:
Court of Cassation, 3rd Civil Chamber, Case No. 2019/3745, Decision No. 2020/1123, 23 January 2020
“…since it is established that the claimant wife has taken up a highly paid job and that her economic position has improved, it ought to have been decided that the poverty alimony be removed…”
Court of Cassation, 2nd Civil Chamber, Case No. 2018/4912, Decision No. 2019/8761, 20 June 2019
“…the alimony creditor has in fact begun to live together with another person and has been found to have attained economic independence. In that case, it must be decided that the poverty alimony be discontinued.”
These decisions show that alimony will be discontinued where the creditor escapes poverty or enters into a relationship resembling marriage.
Bringing a Removal Claim Before the Court
An obligor who seeks the removal of alimony must prove that a change has occurred in the creditor’s financial position and that the alimony has become unnecessary. Under the Turkish Civil Code No. 4721, where the conditions requiring removal arise, the obligor may apply to the Family Court at the creditor’s place of residence and seek the removal or reduction of the alimony.
The Independent Legal Assessment
What determines the outcome in alimony disputes is not a crude finding as to whether the parties work, but documentary proof of the balance between income and outgoings and of the standard of living within the marriage. The mere fact that a payslip has entered the case file does not in itself produce an adverse result; the real question is whether it can be shown by concrete data that the income in question removes poverty.
In practice the fate of a case file is often determined by the content of the investigation into economic and social circumstances. It is therefore important that claims be framed in full in the statement of claim and that the list of evidence be drawn up correctly from the outset. In a given case, the following headings in particular should be reviewed as a priority:
- Correct characterisation of the type of alimony claimed, and the making of a separate claim for each type
- Substantiation of the standard of living maintained during the marriage through expenditure records and bank movements
- Evidencing allegations of fault, having regard to the weight they carry for poverty alimony
- Itemised presentation of the child’s education, health and care expenses in the child support claim
- Proof, in actions for the removal or reduction of alimony, that the change is of a lasting and serious nature
- Calculating time limits in advance for claims to be brought after the divorce has become final
Independent Legal provides advisory and litigation services across the whole of the process in disputes arising from family law, from the determination of alimony claims through to enforcement of the judgment and subsequent adjustment actions.