Where maintenance awarded by a court decision is not performed by the debtor, the course open to the creditor is to collect the claim by force through the power of the State. The concept of the collection of maintenance claims by way of enforcement describes precisely this process. Since maintenance is a continuing type of claim protected within the framework of the social-state principle, Turkish law subjects it to a special and priority collection regime by comparison with other monetary debts.
Where payments are disrupted or stopped altogether, a series of questions arises for the creditor: how is a maintenance debt collected, by what procedure are enforcement proceedings commenced, and what sanctions await the debtor where the debt goes unpaid?
In this briefing note we address the legal nature of a maintenance claim, the enforcement route to be followed according to the type of maintenance, the assets that may be attached on account of unpaid maintenance and the civil and criminal consequences facing a debtor who fails to pay, within the framework of the legislation and of practice.
The Legal Nature of a Maintenance Claim
Maintenance denotes the payment that must be made at regular intervals, pursuant to a court decision, to a person who is economically dependent. In Turkish law the institution is regulated under the heading of Family Law, and it is most often awarded as the outcome of disputes arising from divorce, separation or family maintenance obligations.
A maintenance claim, for its part, is a legal claim that the creditor may collect by enforcement proceedings where the debt determined by the court is not paid in full and on time. What distinguishes it from other types of claim is that it involves an obligation to be paid regularly and without interruption over a given period. Because of this quality, a maintenance debt is regarded, within the framework of the social-state understanding, as a debt that is personal in nature and closely connected with public order.
Types of Maintenance under Turkish Law
The Turkish Civil Code No. 4721 addresses maintenance claims under four principal headings, according to their basis and purpose:
- Interim maintenance: maintenance awarded provisionally, while a divorce or separation action is pending, in favour of the spouse or children who may experience economic hardship until the proceedings are concluded.
- Child support: the type of maintenance paid, following the divorce, by the spouse who does not have custody, in order to contribute to the child’s care, education and health expenses.
- Poverty alimony: maintenance that a spouse who will fall into poverty as a result of the end of the marriage may claim from the other spouse, to the extent necessary to meet his or her subsistence, provided that his or her fault is not the graver.
- Assistance maintenance: the type awarded between relatives up to the third degree, in order to provide support to a person in need of care.
Methods of Collecting a Maintenance Claim
The collection of maintenance proceeds by two basic methods, depending on the debtor’s payment conduct. Where the debtor performs the obligation of his or her own accord and on a regular basis, voluntary collection is in question; where payment is not made at all or is disrupted, it becomes necessary to have recourse to the means of enforced collection.
In this framework, the methods available in respect of a maintenance claim fall under two headings: voluntary payment made by the debtor of his or her own will, and enforced collection carried out through the power of the State. The two methods differ from one another in the manner of their application, in the consequences they produce and in their legal effects on the parties. Both are examined in detail below.
Collection through Voluntary Payment
Voluntary payment is the payment by the debtor of the maintenance sum determined by the court, of his or her own accord and on a regular basis, without any need for enforcement proceedings. So long as there is no dispute between the parties, this method is regarded as the fastest and most practical solution for the collection of a maintenance claim.
In practice, voluntary payment may be effected in different ways. The use of a bank transfer or an electronic funds transfer is the most common route. It is also possible to place the payments on a regular footing by means of a standing payment order given to the bank. Where payment in cash is preferred, it is advisable to issue a receipt or a written document in order to avoid problems of proof at a later stage.
Where the debtor disrupts or wholly ceases the payments made on this basis, the creditor acquires the right to have recourse to the means of enforced collection.
Means of Enforced Collection
Where the debtor fails to perform the obligation of voluntary payment, the creditor may collect the claim by applying to the enforcement office and commencing proceedings. Enforced collection is a process conducted through the enforcement organs of the State, the purpose of which is to obtain the claim by force, independently of the will of the debtor. The principal means available in this framework are explained below.
Collection through Enforcement Proceedings
The creditor commences the proceedings by applying to the competent enforcement office at the debtor’s place of residence. The enforcement office serves a payment order on the debtor. Where the debtor neither objects within seven days of service nor makes payment, the proceedings become final, and the matter thereby moves to the enforced execution stage.
Where the proceedings have become final and the debt is still not paid, attachment may be applied. In respect of maintenance claims, attachment of salary is among the methods most frequently resorted to in practice and most likely to yield results.
Complaint on Account of Non-Payment of Maintenance
Coercive imprisonment may be sought under Article 344 of the Enforcement and Bankruptcy Act No. 2004 against a debtor who fails to pay the debt notwithstanding the proceedings. Under this route, coercive imprisonment of up to three months may be ordered against the debtor.
The debtor is released immediately upon payment of the debt. The execution of coercive imprisonment does not, however, extinguish the debt; the claim subsists so long as payment is not made.
The Enforcement Route to Be Followed According to the Type of Maintenance
In the collection of maintenance by way of enforcement, the type of claim is the basic criterion determining the enforcement route to be applied. The types of maintenance regulated in the Turkish Civil Code No. 4721 are subject to different procedures within the framework of the distinction, in enforcement law, between proceedings based on a judgment and proceedings not based on a judgment. Correctly identifying the legal nature of the maintenance to be made the subject of the proceedings is therefore essential if the process is to be conducted lawfully and effectively.
The enforcement route to be followed for each type of maintenance is explained below.
Interim Maintenance: Enforcement Proceedings without a Judgment
Interim maintenance is the type of maintenance awarded provisionally by the court while a divorce or separation action is pending, in order to prevent economic harm to one of the parties or to the common child. Three points stand out with regard to the enforcement of this maintenance: the basis of the proceedings is the interlocutory decision given by the court; that decision is not required to have become final; and the claim may be collected through the enforcement office by way of enforcement proceedings not based on a judgment.
Since interim maintenance is accordingly not based on a final judgment, it is conducted under the provisions of enforcement law governing proceedings not based on a judgment.
Poverty Alimony: Enforcement Proceedings Based on a Judgment
Poverty alimony is the type awarded in favour of the spouse who will fall into poverty as a result of the divorce, and against the other spouse, provided that the former’s fault is not the graver. The collection of this maintenance by way of enforcement is subject to two conditions: the divorce decision must have become final, and enforcement proceedings based on a judgment must be commenced.
Poverty alimony based on a divorce decision that has not become final cannot be made the subject of enforcement proceedings.
Child Support: Enforcement Proceedings Based on a Judgment
Child support is the maintenance awarded, following the divorce, in order to secure the participation of the parent who has not been granted custody in the care, education and health expenses of the common child. Similar conditions apply to this maintenance: where child support has been awarded within the divorce action, the divorce decision is required to have become final, and enforcement proceedings based on a judgment must be brought in order to collect it.
In this respect, child support is subject to the same enforcement procedure as poverty alimony.
Attachment Measures Available on Account of Unpaid Maintenance
Where maintenance is not paid on time and regularly, the creditor may apply to the enforcement office and request that attachment be applied to the debtor’s assets. Since maintenance claims are by their nature treated as priority claims, they enjoy stronger protection in collection by way of attachment than other types of claim.
Attachment may be applied to the debtor’s movable and immovable property, bank accounts, wages and income, and claims held against third parties.
Attachment of Movable and Immovable Property
Movable and immovable property registered in the debtor’s name may be attached for the purpose of collecting a maintenance claim. In this context, attachment may be placed on immovable property registered in the debtor’s name, such as a house, a plot of land or business premises, and a sale may be pursued. Motor vehicles registered in the debtor’s name may be attached and sold. Valuable movable items such as gold, jewellery and electronic goods may likewise be brought within the scope of the attachment and put up for sale.
Attachment of Bank Accounts
Attachment may be placed on the debtor’s deposit accounts held with banks. Upon the attachment notices sent by the enforcement office to the banks concerned, the sums in the accounts are blocked and the existing balance is set off against the maintenance claim. Where there are insufficient funds in the account, the attachment may continue until the claim is collected in full.
Attachment of Salaries and Regular Income
The debtor’s salary and regular income may also be made the subject of attachment for unpaid maintenance. The enforcement office sends a salary attachment writ to the institution where the debtor works; the employer is obliged to make deductions at the rates notified. Two different regimes apply as regards the rate of deduction:
- In respect of current (monthly) maintenance debts, the deduction may be made even where the sum awarded exceeds one quarter of the salary.
- In respect of accrued maintenance debts, the general rule applies and at most one quarter of the salary may be attached.
Subject to the statutory exceptions, it is also possible for deductions to be made for a maintenance claim from income such as retirement pensions and unemployment benefit.
Attachment of Claims Held against Third Parties
The debtor’s claims against third parties may also be attached. By sending an attachment notice to those persons, the enforcement office may require that the payment due to the debtor be directed straight to the maintenance creditor. Rental income, commercial claims and similar regular income are assessed within this scope.
Attachment of Company Shareholdings and Dividends
Where the debtor holds an interest in a company, the income to be obtained from the company and the shareholdings themselves may also form the subject of attachment. In this context, it is possible for the enforcement office to seize the dividends the debtor receives from the company. Where the debtor is a shareholder in a joint stock or limited liability company, attachment may be applied to the share certificates or the shareholding. In addition, the payments the debtor regularly receives from the company may be attached for the purpose of collecting the maintenance claim.
Attachment of Inheritance and Insurance Claims
Income deriving from inheritance or insurance that belongs to a debtor who fails to pay the debt also falls within the scope of attachment. Where the debtor has a share in an estate, the enforcement office may effect an attachment in order to secure payment of that share to the maintenance creditor. Where insurance compensation or a social security payment has been made to the debtor, those sums may likewise be attached against the maintenance debt.
Attachment of Rental Income
Where the debtor obtains rental income from immovable property he or she owns, that sum may be attached for the maintenance claim. The rent regularly received from the tenant may be collected by being directed straight to the maintenance creditor. The enforcement office may send an attachment notice to the tenant and require that the rent be paid into the enforcement file.
The Competent Enforcement Office in Maintenance Proceedings
In the collection of maintenance by way of enforcement, correctly identifying the competent enforcement office is important if the proceedings are to be conducted properly and effectively. Competence varies according to whether the proceedings are based on a judgment or not and according to the legal nature of the maintenance.
Competence in Proceedings Based on a Judgment
Claims awarded by a court decision that has become final, such as poverty alimony, child support and assistance maintenance, are made the subject of enforcement proceedings based on a judgment. In respect of such claims the proceedings may be commenced before any enforcement office in Türkiye; no connection of competence is required between the place of residence of the creditor or the debtor and the enforcement office chosen.
The purpose of this arrangement is to protect the creditor, given the nature of maintenance claims, and to ensure that collection takes place more quickly.
Competence in Proceedings Not Based on a Judgment
Claims awarded by an interlocutory decision that do not yet have the character of a final judgment, such as interim maintenance, are made the subject of proceedings not based on a judgment. The general rule here is that the enforcement office at the maintenance debtor’s place of residence has competence.
That said, having regard to the provisional and protective character of interim maintenance, it is accepted both in practice and in the decisions of the Court of Cassation that, depending on the features of the specific case, proceedings may also be brought before enforcement offices other than that of the debtor’s place of residence. When competence is assessed, the type of maintenance and the enforcement route must therefore be considered together.
Failure to Pay Maintenance and Coercive Imprisonment
Where the debtor fails, without just cause, to perform the maintenance obligation awarded by the court, the creditor may seek the application of a criminal sanction by way of complaint. In Turkish law, non-payment of maintenance is regulated in Article 344 of the Enforcement and Bankruptcy Act No. 2004, and where the conditions required by the statute are met together, coercive imprisonment may be ordered against the debtor.
Coercive imprisonment is a compulsory sanction directed at securing collection of the debt rather than at punishment. The close relationship of a maintenance debt with public order gives this sanction a special position within the legal system.
Conditions for the Complaint
For coercive imprisonment to be sought on account of non-payment of maintenance, the following conditions must be present together:
- There must be an enforceable maintenance debt. The debt must be based on a court decision and must be capable of being made the subject of enforcement proceedings. In the case of interim maintenance, the condition that the decision has become final is not required.
- The debtor must have failed to perform the payment obligation. Partial or complete non-payment of the debt gives rise to the right of complaint.
- The creditor must lodge a complaint. The act of non-payment of maintenance is not investigated of the authorities’ own motion; the creditor is obliged to apply to the enforcement criminal court.
- The complaint must be lodged in time. Each unpaid month counts as a separate breach, and the complaint must be lodged within three months of the date of each breach. Where the period is missed, the right of complaint in respect of the month concerned lapses.
The Application and Consequences of Coercive Imprisonment
Under Article 344 of the Enforcement and Bankruptcy Act No. 2004, coercive imprisonment of up to three months may be applied to a debtor who fails to pay a maintenance debt. The essential features of this sanction may be summarised as follows:
- The purpose is to compel the debtor to pay the maintenance debt; the sanction is coercive rather than punitive in character.
- Where the debtor makes payment during the term of imprisonment, he or she is released immediately.
- Where payment is not made, the debtor is released once the term expires; the maintenance debt is not extinguished, however.
- Coercive imprisonment is not entered on the criminal record and cannot be made the subject of suspension, conversion into a judicial fine or alternative sanctions.
Independent Legal Assessment
Success in collecting maintenance claims often depends on the proceedings being commenced by the correct route. Proceedings based on a judgment brought in reliance on a divorce decision that has not become final, or the wrong procedure chosen for an interlocutory decision that does not have the character of a judgment, vitiate the process from the outset and cause the creditor to lose months. In the same way, the fact that current maintenance and accrued maintenance are subject to different rates in the attachment of salary requires the request to be notified to the enforcement office with that distinction in mind.
On the criminal side, the complaint period is decisive. Because each unpaid month counts as a separate breach and the three-month period runs separately for each breach, the right in respect of past months is lost where matters are not monitored regularly.
In a specific case it is appropriate to give priority to the following matters:
- Identifying the type and basis of the maintenance and choosing between proceedings based on a judgment and proceedings not based on a judgment
- Making use of the freedom as to competence in proceedings based on a judgment in order to select the enforcement office that will accelerate collection
- Investigating the debtor’s sources of income and assets before the proceedings are commenced
- Setting out clearly, in the attachment request, the distinction between current and accrued maintenance
- Diarising the complaint period for each month so that the three-month period is not missed
- Continuing collection efforts without interruption, bearing in mind that coercive imprisonment does not extinguish the debt
Independent Legal provides advisory and enforcement services in relation to the collection of maintenance claims by way of enforcement and to complaint proceedings under the Enforcement and Bankruptcy Act No. 2004.