Maintenance awarded together with a decree of divorce or separation may in time cease to meet the recipient’s needs. A rise in the price level, a shift in economic balances or an increase in the expenses of the person receiving maintenance may render an amount once considered sufficient ineffective. In such a situation, the person concerned may apply to the court asserting that the existing amount no longer meets their requirements. The action brought by such an application is known in practice as an action for the increase of maintenance.
Which conditions must have materialised for the claim to be allowed, in which circumstances recourse to the courts is available, and how the process unfolds are among the questions most frequently raised in practice.
In this briefing note we examine, step by step, the legal basis of a claim for the increase of maintenance, the conditions required, who may raise such a claim and how the proceedings operate.
The Function of the Maintenance Increase Action
The amount of maintenance determined following a divorce is assessed on the basis of the economic and social circumstances of the parties as at that date. Yet economic conditions may change over the intervening period, the burden of subsistence may become heavier, or the needs of the maintenance creditor may broaden. Developments of this kind may make it necessary for the amount awarded to be updated.
The maintenance increase action is the legal avenue to which the maintenance creditor resorts in order to have an amount that has become inadequate in the face of changed circumstances raised. The court may order an increase after examining the balance between the claimant’s income and expenditure, but it may equally decide to leave the existing amount as it stands.
This action is intended to make it easier for the maintenance creditor to adapt to changing economic conditions and is regulated within the Turkish Civil Code No. 4721.
Legal Basis
Turkish Civil Code No. 4721 Art. 176(4) – Poverty Alimony
“Where the financial circumstances of the parties change or where equity so requires, an increase or reduction of the periodic payment may be ordered.”
Turkish Civil Code No. 4721 Art. 331 – Child Support
“Where circumstances change, the judge shall, upon application, redetermine the amount of maintenance or discontinue it.”
Under the provisions cited, an increase is possible even where the amount of maintenance has previously been determined by judgment, provided that a change has occurred in the financial position of the parties or that equity so requires.
Conditions for a Claim for an Increase
The maintenance increase action depends on the materialisation of certain legal conditions. The occurrence of an appreciable change in the financial circumstances of the parties, or the emergence of a situation in which equity requires intervention, are the two principal axes on which the claim rests. For the purposes of the Turkish Civil Code No. 4721, the following conditions must be met for the action to be brought.
Change in the Financial Circumstances of the Parties
In order for a claim for an increase to be raised, a change that may be regarded as significant must have occurred in the financial position of the person paying or receiving maintenance.
A decline in the income of the maintenance creditor may present itself in the following forms: the amount in hand becoming insufficient by reason of loss of employment, health problems, or a rise in rent and essential expenses; or the absence of any other source from which to meet their subsistence, or a reduction in their existing income.
A rise in the income of the maintenance debtor, on the other hand, arises in the following situations: an increase in their economic capacity by reason of a change of employment, promotion or investment returns; or an improvement in their position over time where a low amount had been awarded because they were in financial difficulty in the past.
For example, maintenance of TRY 3,000 may have been awarded against a debtor whose monthly income was TRY 10,000 at the time of the divorce. If that person’s income has reached TRY 50,000 in the intervening years, the maintenance creditor may bring an action seeking an increase in the amount.
Cases in Which Equity So Requires
While the courts examine the economic position of the parties by objective criteria, they do not lose sight of the principle of equity. Two typical situations stand out in this context. The first is the inability of the existing amount to meet basic requirements; where maintenance loses its function by reason of price increases, a heavier burden of subsistence and rising expenditure on education and health, the court may order an increase. The second is the growth of expenses as children grow older; where the costs of schooling, expenditure relating to social life and health expenses increase over time, an increase in child support may be in issue.
For example, child support assessed for a child aged 5 may fail to meet that child’s needs once they reach the age of 15. At this stage, when private schooling, courses and health expenses come into play, the court may raise the amount as equity requires.
Who Holds the Right to Claim?
The maintenance increase action is brought by the maintenance creditor where the conditions are met. The persons who may raise a claim for an increase where the amount awarded has become inadequate or where significant changes have occurred in the financial circumstances of the parties are examined below.
The Former Spouse Receiving Poverty Alimony
A former spouse who becomes entitled to poverty alimony following the divorce may, relying on Article 176 of the Code, seek an increase in the amount by reason of a change in economic conditions.
For example, poverty alimony of TRY 3,000 may have been awarded in favour of one of the spouses at the time of the divorce. If economic conditions have changed over the intervening years and rent and essential expenses have risen, the spouse receiving maintenance may bring an action for an increase asserting that this amount no longer meets their subsistence.
The Child Receiving Child Support and Their Legal Representative
Within the framework of Article 331 of the Turkish Civil Code No. 4721, child support is paid in order to meet the care and schooling expenses of the children of the marriage. Where the child’s basic needs can no longer be met as a result of a heavier burden of subsistence, the parent holding custody may request an increase in the amount.
For example, child support of TRY 1,500 per month may have been awarded in respect of a child who was still 2 years old at the time of the divorce. If, once the child has reached the age of 10 in the intervening years, that amount proves inadequate in the face of private schooling, tutoring and additional educational expenses, the parent holding custody may bring an action for an increase seeking to have the maintenance adapted to current conditions.
The Adult Child Receiving Support Maintenance
Child support comes to an end when the child of the marriage attains the age of 18 and is replaced by support maintenance. From that stage onwards, the right to claim passes to the adult child themselves.
For example, a 22-year-old person pursuing university studies may apply to the court seeking an increase in support maintenance by reason of a rise in the costs of their studies.
Guardian or Legal Representative
Where the maintenance creditor is not in a position to bring an action in their own name (for instance, where they are under legal incapacity or have a disability), the action for an increase may be brought on their behalf by their guardian or legal representative.
For example, the guardian appointed to a maintenance creditor who is unable to exercise capacity to sue by reason of an intellectual disability may raise the claim for an increase on their behalf.
Determining the Rate of Increase for Future Years
Since maintenance varies according to economic conditions, the rate at which it is to be raised in future years may be determined at the outset. Both in divorce proceedings and in an action for an increase brought subsequently, the court may, upon the application of one of the parties, determine by judgment the extent to which the maintenance is to be increased in future years.
This method removes the need for the parties to bring a fresh action every year and thus offers convenience in terms of both time and expense.
Turkish Civil Code No. 4721 Art. 176 and Art. 330
“The judge may, upon application, determine by judgment the amount in which maintenance ordered to be paid in the form of a periodic payment is to be paid in future years according to the social and economic circumstances of the parties.”
The purpose of the provision is to afford the maintenance creditor a measure of economic security and to prevent successive actions being brought on the same matter.
The point that must not be overlooked here is this: the rate of increase is not determined by the court of its own motion but depends on an express application. Unless one of the parties makes an application to that effect, the judge cannot fix a rate of increase of their own motion.
How Is the Rate of Increase Determined?
Increase according to TurkStat data. In the case law of the Court of Cassation, the increase is generally made on the basis of TurkStat’s PPI (Producer Price Index) or CPI (Consumer Price Index) data. The court may order the maintenance to be raised each year in line with these indices. Whether these rates are compatible with the income level of the maintenance debtor is also discussed separately.
Increase according to economic circumstances and equity. The court may assess a different rate having regard to the economic position of the parties and the principle of equity. Where there has been an extraordinary leap in the income of the maintenance debtor, a higher rate may be ordered. Conversely, where the debtor is in economic difficulty, a lower rate may be fixed.
Fixed-rate increase. The court may decide that the maintenance is to be increased each year at a definite and unchanging rate (for example, 20 per cent). This rate is most often established having regard to the income level of the parties and price increase data.
The Approach of the Court of Cassation
Court of Cassation, 3rd Civil Chamber, Case No. 2016/3185, Decision No. 2016/6459, 25.04.2016
“As is also clear from the wording of the provision, an ‘application’ is required in order for the court to be able to order an increase in future years in the maintenance to be awarded in favour of a party. Otherwise, no such judgment may be given by the court. In the present case, it is apparent that the claimant made no application whatsoever for the maintenance sought to be increased in future years as well, and that the court nevertheless gave judgment to that effect.”
In this framework, the manner in which an increase for future years is to be secured may be summarised in the following three points. First, one of the parties must expressly ask the court, when the amount of maintenance is being determined, that the rate of increase for future years also be determined by judgment; unless there is an application, the judge cannot fix a rate of their own motion. Secondly, the court may assess a rate according to the social and economic position of the parties. Thirdly, the method most frequently resorted to in practice is an increase in line with TurkStat’s PPI or CPI data.
In this way the parties may secure the updating of the amount of maintenance without having to bring a fresh action every year.
The Proceedings
The maintenance increase action is subject to certain procedural rules. The commencement of the action, the procedure to be applied, the court with subject-matter jurisdiction and the legal avenues available where maintenance is not paid are examined under this heading.
The Procedure to Be Applied
These actions are heard within the framework of the provisions of the Turkish Civil Code No. 4721 and the Code of Civil Procedure No. 6100 and are subject to the simplified procedure. The simplified procedure is provided for with a view to concluding disputes more quickly and in a more practical manner. Under this procedure the hearing stages are reduced and the process is conducted largely on the basis of written pleadings. Once the parties have filed their statement of claim and defence, the court carries out the necessary examination, holds a hearing and gives judgment. A more swiftly concluded process is thus aimed at in place of lengthy and complex proceedings.
Courts with Subject-Matter and Territorial Jurisdiction
In terms of subject-matter jurisdiction, the courts responsible for hearing maintenance increase actions are the Family Courts. In places where no Family Court has been established, these actions are heard by the Civil Courts of First Instance.
In terms of territorial jurisdiction, the court of the maintenance creditor’s place of domicile has jurisdiction. In other words, the action must be brought before the Family Court in the province or district where the person receiving maintenance resides. It is also possible for the action to be brought before the court of the maintenance debtor’s place of domicile.
Time Limits and the Statute of Limitations
No time limit or statute of limitations is provided for in the legislation in respect of a claim for the increase of maintenance. The maintenance creditor may apply to the court at any time at which they consider the amount to have become inadequate. The courts do not, however, as a rule give weight to actions brought immediately after maintenance has been awarded.
In particular, actions for an increase brought in the immediate aftermath of a maintenance judgment becoming final may be dismissed on the ground that no sufficient change has occurred in financial conditions. For this reason it is generally advisable to wait for at least one to two years to elapse before resorting to litigation. The emergence during this period of factors such as price increases, a heavier burden of subsistence and changes in the economic circumstances of the parties strengthens the grounds to be put before the court.
Independent Legal Assessment
In maintenance increase actions the factor that determines the outcome is not the size of the claim but the manner in which the change is documented. Since the court reaches its conclusion by comparing the position as at the date on which maintenance was awarded with the position as at the date of the action, the difference between the two periods must be established by concrete evidence. Reliance on the cost of living in the abstract does not produce the expected result in most files.
Another shortcoming frequently encountered in practice is the failure to seek a rate of increase for future years. Where this claim does not appear in the pleading, the judge cannot fix a rate of their own motion and the party is compelled to bring a fresh action a few years later. In a given file we recommend that the following points be observed:
- Documenting the period elapsed since the date on which the maintenance was determined and the economic change over that period
- Establishing the increase in the creditor’s expenditure by concrete records such as the lease agreement and educational and health expenses
- Including in the pleading the requests for letters of enquiry needed to investigate the rise in the debtor’s income
- Expressly seeking the determination of the rate of increase for future years
- Correctly characterising whether the claim concerns child support, poverty alimony or support maintenance
- Assessing in advance the risk of dismissal arising from bringing an action immediately after the judgment has become final
Independent Legal provides advisory services and conducts litigation in disputes concerning the determination, increase and collection of maintenance.