The Turkish Civil Code No. 4721 addresses interim alimony in more than one article; the great majority of the examples encountered in practice, however, are awards made within the framework of Art. 169 of the Turkish Civil Code No. 4721. Under that provision, interim alimony is a temporary form of alimony that the judge may order of the court’s own motion, for as long as divorce or separation proceedings continue, in order to secure the subsistence of the spouses and the care of the children. The faulty conduct displayed by the parties during the marriage is not taken as a criterion in making the order; alimony may be awarded in favour of the economically weaker spouse or of a child even where no request has been made.
Since the union of marriage remains legally standing for as long as the divorce judgment has not become final, the mutual duties of maintenance between the spouses also continue. For that reason interim alimony is characterised as a temporary instrument of protection that prevents the spouses and the children from suffering financial hardship while the proceedings are pending. The court may likewise order a separate interim alimony directed at the care of the child in favour of the spouse to whom custody of the common child has provisionally been left.
Who may claim this alimony, by what criteria is the amount fixed, and in what circumstances does it cease? Below we assess the principal questions concerning interim alimony under headings and from a practical perspective.
The Concept of Interim Alimony
For as long as the union of marriage continues, spouses are under a duty of maintenance both towards one another and towards their children. Where the divorce process begins, however, or an action is brought seeking separation, one of the parties may fall into economic difficulty. It is precisely at this stage that interim alimony comes into play, becoming a temporary court order that secures the protection of the financially weaker spouse and of the children.
That alimony is in the nature of a provisional measure taken so that the subsistence of the spouses and the care of the children are not disrupted during the divorce or separation action, and it aims to protect the party left weak in the face of economic imbalance. The judge may assess this matter of the court’s own motion; the position as to fault, by contrast, is not decisive in the assessment.
A claim for alimony is not a request that can be advanced only within a pending divorce action. Where the conditions are met, alimony may be claimed by applying to the court even before a divorce action is brought. Turkish law moreover provides for a separate type of separation action, distinct from the divorce action; throughout the hearing of that action too, the court may award interim alimony in favour of the party who would otherwise fall into economic difficulty.
Legal Basis and the Interest Protected
The source of interim alimony is Article 169 of the Turkish Civil Code No. 4721. The provision reads as follows:
Turkish Civil Code No. 4721, Art. 169
"Once a divorce or separation action has been brought, the judge shall of his own motion take the provisional measures relating to the subsistence of the spouses and to the care and protection of the children for the duration of the action."
Foremost among the provisional measures referred to in the article is interim alimony. The court may award alimony in favour of a spouse or a child facing economic difficulty even where no such request has come from the parties.
The interests that the institution safeguards may be gathered under the following headings:
- The re-establishment, throughout the proceedings, of the economic balance disturbed between the parties
- The provision of financial security of a temporary nature while the union of marriage has not yet come to an end
- The protection of the minimum standard of living of the spouses and the children
- The prevention of hardship to the spouse who becomes economically weaker in the course of the process
In short, interim alimony is a provisional measure preventing the parties from falling into financial difficulty during the divorce or separation process. Payment continues until the divorce or separation decision becomes final; in line with the court’s decision, the amount may be increased, reduced or the alimony removed altogether.
How It Differs from Other Types of Alimony
Interim alimony is temporary alimony covering the period before the divorce judgment becomes final. It is ordered by the court so that the spouse and the children who may face economic difficulty while the proceedings are pending do not suffer hardship; the payment obligation likewise continues until the decision given at the end of the action becomes final.
The essential feature distinguishing this alimony from the others is that it may be claimed not only within a divorce or separation action but also without any such action being brought. Indeed, the Turkish Civil Code No. 4721 addresses interim alimony in different provisions. One of these concerns cases in which the spouses have suspended living together.
Turkish Civil Code No. 4721, Art. 197
"Where the suspension of living together rests on a justified ground, the judge may, upon the request of one of the spouses, determine the monetary contribution to be made by the other spouse."
The distinction between the two provisions becomes clear in the requirement of a request. Whereas in alimony under Art. 197 of the Turkish Civil Code No. 4721 the court may act only upon the request of one of the spouses, within a divorce or separation action the judge may assess interim alimony of the court’s own motion.
That provision accepts that spouses may need economic support without embarking on divorce, and confers on the court the power to award alimony in favour of a spouse living apart on a justified ground.
Who May Claim Interim Alimony?
Under Art. 169 of the Turkish Civil Code No. 4721 the judge has the power to order interim alimony of the court’s own motion. Even so, the parties may also advance a request to that effect at any stage of the proceedings.
The Right of the Spouses to Claim
Both spouses, as parties to divorce or separation proceedings, may request interim alimony from the court. Contrary to a mistaken belief settled in society, this alimony is not peculiar to women; a request by the husband is equally possible.
- A husband who establishes by conclusive evidence that he has no income and is not working may, where the other conditions are also met, claim interim alimony from a wife who has an income.
- Being in employment does not extinguish the right to claim. Since the spouses are entitled to maintain, while the action is pending, the standard of living to which they were accustomed during the marriage, a spouse who has an income may also make a claim for alimony.
- The obligation to contribute to family expenses applies to the wife as well; upon the request of the husband the court may determine the monetary contribution the wife is to make to those expenses.
Alimony in Favour of the Common Child
Interim alimony may also be awarded for the common child during the divorce or separation process. It is not necessary for the party provisionally assuming custody to make an express request; having regard to the best interests of the child, the court may order alimony even where neither party has requested it.
The Claim of a Spouse Living Apart Under Article 197
One of the spouses may claim interim alimony even where no divorce or separation action has been brought. Whether such a claim, founded on Article 197 of the Turkish Civil Code No. 4721, can be met depends, however, on the following conditions:
- The existence of a formal marital bond between the parties
- The spouses actually living apart
- The living apart resting on a justified ground
- An application having been made to the court claiming alimony
Under that provision, where one of the spouses is living apart on a justified ground, the judge may fix the amount of the monetary contribution to be made by the other spouse. The point to be noted here is that the alimony is assessed not of the court’s own motion but only upon request.
The Position of the Spouse at Fault
In ordering interim alimony, the position of the parties as to fault in the divorce process is not taken as a criterion. Accordingly, the party who appears to be at greater fault in the divorce or separation action may also make a claim for alimony; to whom the fault belongs will emerge only once the proceedings have been completed.
In practice there is a mistaken perception that a spouse thought to be at fault cannot claim this alimony. Since the assessment of fault is made together with the judgment, however, both spouses have the right to claim while the action is pending.
Determining the Amount of Alimony
The amount of interim alimony is assessed by the judge in a manner suitable to meet the subsistence of the claiming party and consistent with the financial means of the debtor. In making that assessment, the social and economic circumstances of the parties, the assets they hold and their monthly income and expenditure are examined in detail. The judge is expected to fix the fairest amount consistent with the law and with equity.
Criteria Taken as a Basis in the Assessment
The principal factors taken into account in fixing the amount are as follows:
- The capacity to pay and the financial means of the alimony debtor
- The income and the subsistence needs of the claiming spouse
- The standards of living and the assets of the parties
- The balance between monthly income and expenditure
- Where an order is to be made in favour of a child, the child’s education, health and other basic needs
Alimony Awarded in Favour of the Child
Where the alimony is to be fixed for the common child, the judge determines an amount having regard to the most favourable conditions in terms of the child’s health, education and moral development. The contribution to be made by the spouse who is not with the child to the costs of care and education is likewise determined provisionally on that basis.
The judge is not obliged to make the assessment solely by reference to the parties’ present income position; changes likely to occur in the future may also be taken into account. For that reason the amount of alimony may be increased or reduced where the circumstances so require.
The Increase, Reduction and Removal of Alimony
This temporary alimony, fixed by the court for the duration of the proceedings, may be increased, reduced or removed altogether according to changes in circumstances. Such changes come onto the agenda upon an application to the court by the alimony creditor or by the debtor.
Request for an Increase
Where the creditor’s economic circumstances have deteriorated after alimony has been awarded, or their needs have increased, an increase in the amount may be requested. The factors taken into consideration in a request for an increase may be listed as follows:
- A significant rise occurring in the income of the alimony debtor
- An adverse change in the economic circumstances of the party receiving alimony
- Inflation, the cost of living and the general economic conditions of the country
- Where payment is made in favour of a child, the rise in education, health and similar costs as the child grows
In situations of this kind the party receiving alimony may apply to the court and request an increase; the court, in turn, examines current economic data and the financial position of the parties and gives the appropriate decision.
Request for a Reduction
The debtor may request a reduction in the amount where a serious decline occurs in their own economic situation. Among the factors taken into account in a request for a reduction are the following:
- A marked fall in the debtor’s income for reasons such as loss of employment, bankruptcy or serious health problems
- An improvement in the financial situation of the party receiving alimony for reasons such as starting work or obtaining additional income
- The establishment of a lawful ground showing that the amount fixed remains higher than necessary
In these cases the debtor may apply to the court and request a reduction in the amount; the court may vary the alimony after assessing the current economic circumstances of the parties.
Complete Removal of Alimony
The complete removal of interim alimony is also possible; certain legal conditions must, however, be met for that. The principal situations that may lead to the alimony coming to an end are as follows:
- The conclusion of the divorce or separation action; alimony ends when the divorce judgment becomes final
- The alimony debtor suffering a permanent and serious loss of income
- The creditor becoming able to stand on their own feet economically
- In alimony paid for a child, a change in custody or the child attaining economic independence
Where one of these conditions is met, the debtor may apply to the court and request the complete removal of the alimony. For the details of the subject, the explanations addressed under the heading The Removal of Alimony may also be consulted.
The Termination of Interim Alimony
This alimony, being temporary in nature, ceases of itself once certain legal stages have been completed. The amount awarded by the court is paid throughout the divorce or separation action and comes to an end when those actions become final.
In Terms of the Divorce Action
Interim alimony awarded while divorce proceedings are pending ends of itself when the divorce decision becomes final. Where the need for alimony continues after the divorce, however, interim alimony is in most cases transformed into the following types:
- Poverty alimony: May be awarded by the court in favour of a spouse who is not deemed to be at greater fault in the divorce and who falls into an economically weak position.
- Child support: Fixed upon the request of the spouse assuming custody, in order to meet the care and expenses of the common children.
The ending of interim alimony does not mean that the need of the spouse or the child has disappeared. For that reason, once the divorce judgment has become final, the party wishing to claim alimony must apply to the court and make a claim for child support or poverty alimony.
In Terms of the Separation Action
Interim alimony awarded while a separation action is being heard subsists throughout the period covered by the separation decision given by the court.
- Under the Turkish Civil Code No. 4721 the court may order separation for a period of not less than 1 year and not more than 3 years.
- Alimony continues to be paid for as long as the separation period fixed continues.
- Where, once that period has expired, the spouses come together again or a divorce action is brought, the alimony likewise comes to an end.
Where uncertainty or a dispute arises as to the ending of alimony, the parties may apply to the court to have their doubts resolved as to whether payment will continue or will be transformed into another type of alimony.
The Courts with Subject-Matter and Territorial Jurisdiction
Interim alimony may be claimed together with a divorce or separation action, or independently of those actions. Which court will have subject-matter and territorial jurisdiction varies according to which of these two routes the claim is advanced by.
Claimed Together with a Divorce or Separation Action
Where the claim is advanced together with a divorce or separation action, the court with subject-matter and territorial jurisdiction is the family court hearing that action.
Under Article 168 of the Turkish Civil Code No. 4721, territorial jurisdiction in divorce and separation actions is determined by one of the following two options:
- The court of the place where the spouses last resided together for six months
- The court of the place of residence of one of the spouses
In that case the claim for alimony is examined by the court hearing the action, and the judge may award interim alimony of the court’s own motion.
Claimed Independently
Where the claim is advanced separately from a divorce or separation action, subject-matter and territorial jurisdiction are determined as follows:
- Court with subject-matter jurisdiction: The family court has subject-matter jurisdiction. In places where no family court has been established, the civil court of first instance acting in that capacity determines the claim.
- Court with territorial jurisdiction: The family court at the place of residence of one of the spouses has territorial jurisdiction.
In this scenario, where one of the spouses has suspended living together on a justified ground, that spouse may make a claim for interim alimony under Art. 197 of the Turkish Civil Code No. 4721 in order to meet their subsistence during the period of living apart.
The Independent Legal Assessment
Although interim alimony may appear to be an ordinary interlocutory decision in divorce proceedings, it directly determines the financial burden the parties will bear throughout the proceedings and is therefore one of the most critical headings of litigation strategy in practice. Fixing the alimony at an early stage and on the basis of the true income position forestalls both unnecessary requests for increase and reduction and long-running disputes over payment.
In files of this kind the debate most often centres not on the existence of the alimony but on the accuracy of the data taken as a basis in fixing the amount. For that reason, establishing the evidential framework at the outset of the process carries an importance that will affect all the subsequent stages.
In a concrete dispute it is appropriate to have regard in particular to the following matters:
- Establishing the income, expenditure and asset position of the parties on a documentary basis
- Clarifying whether the claim is advanced under Art. 169 or under Art. 197 of the Turkish Civil Code No. 4721
- Where alimony is claimed in favour of a child, particularising the education and health costs separately
- Advancing a request for increase or reduction in good time when economic circumstances change
- Raising a claim for child support or poverty alimony without delay once the divorce judgment becomes final
- Assessing objections as to subject-matter and territorial jurisdiction from the outset, particularly in independently brought claims
Independent Legal provides advisory services and conducts litigation throughout the process in disputes arising from family law, from the preparation of claims for interim alimony to the adaptation of alimony.