The ending of a marriage does not merely part the ways of the spouses; it also directly reshapes the daily life of the common child. Whether or not the bond between them continues, the mother and the father are obliged to contribute to the child’s care and educational expenses. The legal instrument that ensures this obligation is in fact discharged by both parents is child support.
This maintenance is sought, once the divorce judgment has become final, from the parent who has not assumed custody, for the child’s basic needs. It should be emphasised in particular that it is not the same institution as the interim maintenance awarded while proceedings are pending in order to secure the child’s subsistence.
In this briefing note we address, in practical terms, the conditions in which child support arises, to whom the right of claim is afforded, how the amount is established and in the face of which developments it may be reorganised.
The Concept of Child Support
Where a divorce or separation is decreed, the parent to whom custody is not granted becomes obliged to contribute financially to the common child’s care, education, health and similar basic expenses. The form of maintenance that answers to this duty of contribution is termed child support.
Under Article 182 of the Turkish Civil Code, where custody is granted to one of the spouses, the other parent is required to provide financial support for the child’s needs. This maintenance continues until the child attains majority; the amount is established by weighing together the economic position of the parents and the needs of the child.
Under Article 327 of the same Code, the mother and the father are obliged to provide for the child’s care, education and protection, and this responsibility continues until the child comes of age. The nature of the legal bond between the parents does not alter this result: the marriage may be subsisting, a divorce may have taken place, or the marriage may have been declared void; in every case the mother and the father are responsible for the child’s basic needs.
As to the purpose of the institution, child support is provided for in order to secure the child’s essential needs and future development and, as a rule, comes to an end upon majority. Particular reasons such as the child’s educational position or state of health may nonetheless permit a claim to be made after majority as well.
To Whom Is the Right of Claim Afforded?
Since child support serves to meet the child’s care, education, health and other essential expenses, the power to advance the claim belongs directly to the person who in fact undertakes the care of the child and holds the right of custody.
The right of claim may be exercised by the following persons:
- the mother or the father who holds custody
- the child himself or herself, where he or she has capacity of discernment
- the guardian or the trustee of a minor lacking capacity of discernment
This maintenance may also arise in respect of children born outside marriage. Since custody of a child born outside marriage lies with the mother, the mother may require the other parent to contribute to the child’s expenses.
Children born after the divorce proceedings have concluded and the judgment has become final also fall within this scope. In such a case the parent who has assumed custody may advance a claim for child support by bringing an independent action for the child’s expenses to be met.
Establishing the Amount of Maintenance
In determining the amount, the economic and social position of both the party liable to pay and the party in the position of creditor is taken into assessment. In addition, an amount consistent with equity is arrived at having regard to the basic needs of the child, who is the maintenance creditor.
The principal data that bear on the judge’s appraisal are the following:
- the expenses relating to the child’s education, health, housing, transport and general care
- the earnings and paying capacity of the parent liable for maintenance
- whether the child has an income of his or her own
- the financial means of the parent who holds custody
Under Article 330 of the Turkish Civil Code, child support is paid monthly in advance.
Parties who choose the route of divorce by agreement may reach a mutual understanding on matters such as the amount of the maintenance, the manner of payment and the currency in which it is to be paid. That understanding does not, however, produce effect on its own; it must pass the judge’s approval and be embodied in the judgment. If the judge, having regard to the best interests of the child, does not find the parties’ agreement appropriate, he or she may determine the amount personally.
Increasing and Reducing the Maintenance
Child support is determined on the basis of the economic and social conditions prevailing at the moment the judgment is given. Over time the financial position of both the party liable and the creditor may change, just as the child’s educational and health needs may differ according to his or her age. In the face of such developments, an increase, a reduction or the complete abolition of the maintenance may be sought.
Turkish Civil Code Art. 331
“Where circumstances change, the judge shall, upon a request, redetermine the amount of the maintenance or abolish the maintenance.”
Under the provision, for the amount to be reappraised the party concerned must apply to the court and prove the change in circumstances. Among the grounds brought before the courts in practice are an appreciable rise or fall in the income of the parent liable, an increase in the child’s education, health or housing expenses, and the child beginning to obtain earnings of his or her own.
An important distinction should be drawn at this point: whereas the judge may award child support of his or her own motion without any claim, an existing maintenance award can be altered or abolished only upon a request from one of the parties. For details on the subject, our notes entitled “Action for an Increase in Maintenance” and “Can Maintenance Be Abolished?” may be consulted.
Termination of the Maintenance
Child support as a rule falls away automatically when the child attains majority. Majority may be acquired in three ways: by the completion of the eighteenth year, by marriage, or by being declared of full age by a court decision.
On the other hand, where the child becomes able to provide for his or her own subsistence by taking up a profession or trade before completing the age of eighteen, the party liable for maintenance may apply to the court for the payment to be terminated. Where, by contrast, the child has completed the age of eighteen but is continuing his or her education, the care obligation of the mother and the father may continue under the head of support maintenance. In that case the child may claim support maintenance from his or her mother or father for the education expenses to be met. It should not be overlooked that this payment, to be awarded in favour of a child who has attained majority, is not child support but support maintenance.
It should also be noted that the poverty alimony paid by one spouse to the other is an institution entirely distinct from child support; detailed explanations on that subject may be found in our note entitled “Poverty Alimony and Its Conditions”.
Courts with Subject-Matter and Territorial Jurisdiction
As regards subject-matter jurisdiction, the family courts have jurisdiction over all claims such as the determination, increase, reduction or termination of maintenance. In places where no family court has been established, these actions are heard by the civil court of first instance sitting as a family court.
As regards territorial jurisdiction, the rule is the general jurisdiction provision laid down in the Code of Civil Procedure No. 6100; accordingly, the court of the respondent’s place of residence has jurisdiction. Rules of territorial jurisdiction specific to child support actions have nonetheless also been provided for:
- in claims relating to children born outside marriage, the court of the place where the child resides has jurisdiction.
- in child support actions brought after a divorce, jurisdiction is afforded to the court of the maintenance creditor’s place of residence.
The purpose of these special arrangements is to protect the child, who is in the position of creditor, and to facilitate the judicial process.
The Position as to the Statute of Limitations
Since child support serves to meet the child’s care, education and essential expenses, it may be sought at any stage until the child comes of age. No fixed limitation period can therefore be spoken of in respect of this claim.
Limitation may, by contrast, arise in respect of retrospective claims. Under the general limitation provisions of the Turkish Code of Obligations, a period of five years applies to retrospective maintenance claims; that is to say, the claimant may seek at most the maintenance falling due within the preceding five years. Claims for the increase, reduction or abolition of maintenance are not subject to any time limit. When economic and social conditions change, either party may apply to the court at any time and request that the amount be reorganised.
Independent Legal Assessment
In child support disputes the argument most often concentrates not on the existence of the obligation but on the point of whether the amount meets the child’s current needs. Since maintenance, once embodied in a judgment, does not automatically reflect changes in economic conditions, actions for an increase and for a reduction constitute in practice the working side of this institution. The sound conduct of the process depends on the child’s expenses being set out with concrete documents and on the other party’s paying capacity being established realistically.
In a particular file it is appropriate to have regard first of all to the following points:
- documenting the child’s education, health and housing expenses with invoices and records
- correctly identifying, according to the stage of the proceedings, whether the claim is one for interim maintenance or for child support
- where the judgment provides for a rate of increase, checking before bringing an action for an increase whether that clause can be operated instead
- not losing sight of the five-year limitation period in retrospective claims
- reconstructing the claim as one for support maintenance where the child attains majority
- drafting the maintenance clauses in divorce settlement protocols in a form amenable to the judge’s scrutiny
Independent Legal provides advisory services and conducts litigation in processes relating to the determination, increase, reduction and termination of child support.