The ending of the marital union reconstitutes not only the parties’ private lives but also their financial balance over many years. Maintenance awarded following a separation serves as a rule to preserve that balance; where, however, the amount determined exceeds the paying party’s capacity to bear it, the institution drifts away from its own purpose. Payment burdens approaching the whole of a person’s income, and maintenance orders for which no end date is envisaged, have long been among the most widely discussed subjects in public debate.
Significant steps have been taken in the recent period towards making the criterion of equity more visible in the assessment of maintenance and towards limiting disproportionate obligations. The judgments delivered by the Constitutional Court upon individual applications have established that maintenance determined in a disproportionate manner may give rise to a violation of fundamental rights. This approach has reopened for discussion the balance between the ability of the paying party to sustain their economic existence and the securing of a spouse left in need of support after separation.
In this briefing note we examine the basic principles on which the institution of maintenance rests, the criteria the judge observes when determining the amount, the Constitutional Court’s assessment of disproportionate maintenance, and the legal mechanisms that may be invoked in order to be relieved of a disproportionate burden.
The Concept and Function of Maintenance
Maintenance is the obligation of one of two persons connected by a particular bond recognised by law to provide the other with financial support at regular intervals. In Turkish law this obligation most often arises in the context of divorce, separation or a relationship of care between family members. The reason for the institution’s existence is to remedy the hardship of a person who falls into economic difficulty and to enable them to sustain their life.
The obligation to pay does not arise only between divorcing spouses; children and, in certain circumstances, relatives may also be maintenance creditors. Factors such as the financial capacity of the person making the claim, on whom the greater fault lies and to which parent custody has been granted directly alter the type and scope of the maintenance in issue.
By What Criteria Is the Amount of Maintenance Determined?
When awarding maintenance the courts have regard to the economic balance between spouses and children after separation; the data on which the amount is arrived at is one of the questions most frequently raised in practice. In exercising their discretion the judge weighs together a number of criteria of an economic and social character:
- The manner of life the spouses have maintained and the conditions in which they provide for their subsistence
- The distribution of fault between the parties in the events that led to the divorce
- Where there is a child of the marriage, the interests of that child (in respect of child support)
- The personal position of the parties and the social environment in which they find themselves
- Their level of earnings and their general economic circumstances
Our legislation requires that, when the amount of maintenance is awarded, the economic conditions of the day, the social and economic circumstances of the parties and their manner of life be assessed as a whole and that the judgment be founded on the principle of equity. In addition, where the conditions sought by the legislation and by the case law are met, maintenance may, upon the application of the paying party, be discontinued altogether. For further detail on this subject our note entitled Can Maintenance Be Discontinued? may be consulted.
Individual and Social Consequences of Disproportionate Maintenance Orders
Although maintenance is an institution envisaged in order to establish financial balance after divorce, the determination of the amount in a manner irreconcilable with equity may produce adverse consequences at both the personal and the social level. Maintenance orders that are not limited in time and are disproportionate to income in particular generate severe economic and psychological pressure for the paying party.
- Difficulty in making ends meet and financial collapse: Payments determined disproportionately to a person’s earnings may drive the paying party into serious straits; in some situations that person becomes unable even to meet their own basic needs.
- Weakening of economic independence: A person with a capacity for work living on maintenance for many years may lose the will to take part in working life, and a pattern of life may emerge in which the person leans on maintenance income rather than standing on their own feet.
- Debate in the context of equality between women and men: Practices of open-ended or disproportionate maintenance may feed criticism to the effect that a distinction based on sex is being created as regards the paying party. Although the judgments of the Court of Cassation and the Constitutional Court emphasise that equity must be taken as the basis, unbalanced obligations may nonetheless arise in practice.
- Damage to the sense of justice: Disproportionate amounts may reinforce an impression of injustice within society and thereby erode confidence in the judiciary. An individual placed under a burden they cannot carry may begin to question the impartiality of decisions and to doubt whether the avenues of challenge are effective.
The Constitutional Court’s Approach to Disproportionate Maintenance
One of the most contested aspects of maintenance law is whether the amounts awarded accord with equity and to what extent an obligation unlimited in time narrows an individual’s economic freedom. In examining individual applications concerning disproportionate maintenance, the Constitutional Court has concluded that a violation of rights may arise where the obligation to pay turns into a burden exceeding the ordinary limits for the paying party. Below we examine the Court’s legal reasoning, the interpretation it advances in terms of fundamental rights, and the reflection of this approach in subsequent proceedings.
The Reasoning on Which the Judgment Rests
In settled practice the courts are obliged to investigate the financial capacity of the parties when determining maintenance. In many files, however, the need of the claiming party is brought to the fore while the paying spouse’s capacity to pay may be treated as secondary data. The resulting picture amounts to a financial burden that is disproportionate and excessive for the paying party.
In a dispute of this nature, the person who lodged an individual application with the Constitutional Court submitted that the total maintenance he was required to pay for his former spouse and four children exceeded his monthly earnings, that it had accordingly become impossible for him to sustain his life, and that his fundamental rights had been impaired.
The allegations of violation advanced by the applicant were concentrated on the following points: impairment of the right to protect his material and moral existence (Article 17 of the Constitution); action contrary to the principle of equality (Article 10 of the Constitution); and the failure to carry out the necessary examination as to his income position when the maintenance was determined.
In examining the application, the Constitutional Court found that the local court which awarded the maintenance had not investigated the applicant’s economic circumstances in depth and had confined itself to police reports in establishing his income. Without scrutinising the submissions advanced, the local court determined the amount by taking the average salary of civil servants as its basis. The applicant, however, emphasised that he had stated during the proceedings that he was working for the minimum wage.
The conclusions reached by the Court may be summarised as follows: awarding maintenance without completing the investigation into income gave rise to a violation of rights; confining the assessment to the findings in the police reports was not regarded as sufficient for a fair decision; a disproportionate amount was determined without the applicant’s financial circumstances being established in accordance with the truth; and this picture amounts to a violation of the right to protect one’s material and moral existence. On this assessment the Constitutional Court held that the right in question had been violated.
Principles to Be Observed in Terms of Fundamental Rights
The Constitutional Court draws attention to the requirement that the maintenance awarded must not impair the individual’s fundamental rights. Article 17 of the Constitution expressly provides that everyone has the right to protect and develop their material and moral existence.
In this framework, the principles the judicial authorities are expected to observe are as follows:
- Equity: The amount must be determined not only according to the creditor’s need but in a manner appropriate to the economic circumstances of both parties.
- Protection of material and moral existence: The paying party’s ability to provide for their own subsistence must not be extinguished.
- Fair trial: Maintenance judgments given without the necessary examination of the parties’ financial circumstances may impair the right to a fair trial.
- Realistic investigation of financial capacity: The establishment of income must not be confined to police notifications; it must be conducted by obtaining information directly from the employer and from tax records.
Legal Avenues Available Against Disproportionate Maintenance
Maintenance orders of an unbearable weight give rise to lasting economic problems for the paying party. Where the amount exceeds income, markedly lowers the standard of living, or the obligation continues without limit of time, mechanisms exist that may be invoked in order to have the maintenance discontinued, reduced or limited in time.
- Action for the discontinuance of maintenance: Where a change occurs in the paying party’s financial circumstances or a loss is suffered in their income, the setting aside of a maintenance order that is contrary to equity and disproportionate may be sought.
- Action for the reduction of maintenance: The amount may be reduced so as to become proportionate to the paying party’s economic capacity. In proceedings of this kind, an improvement in the creditor’s financial circumstances or a serious decline in the paying party’s income is assessed in particular.
- Individual application to the Constitutional Court: Where disproportionate maintenance has been awarded by the courts of instance, the right of individual application may be exercised once the ordinary remedies have been exhausted.
Independent Legal Assessment
At the centre of debates over disproportionate maintenance lies, more often than not, not the amount itself but the inadequacy of the investigation carried out in arriving at that amount. The Constitutional Court’s approach confirms this: the violation stems not from a high amount having been awarded but from the failure to establish the capacity to pay in a realistic manner. What is truly decisive in the management of the dispute is that the picture of income and expenditure be reflected in the file in full as early as the first-instance proceedings.
In processes of this nature the following points should be given priority:
- Not leaving the establishment of income confined to a police investigation, and bringing employer and tax records into the file
- Setting out in aggregate the other maintenance obligations borne by the paying party
- Determining the choice between a claim for discontinuance and one for reduction according to the nature of the change
- Documenting that the change in circumstances occurred before the date of the action
- Ensuring that the ordinary remedies have been duly exhausted before an individual application
Independent Legal provides advisory services and conducts litigation in disputes concerning the determination, reduction and discontinuance of maintenance, from proceedings before the courts of instance through to the individual application stage.