While a marriage subsists, spouses discharge the responsibility of providing for one another and for their children most of the time without thinking of it as a legal obligation. This relationship of support, regarded as ordinary within the family union, changes in character once divorce proceedings are entered upon. The ending of the marriage may cause at least one of the spouses to come under economic strain or to suffer a serious decline in his or her standard of living.
Poverty alimony comes into play at precisely this point. Upon the application of the party who is expected to fall into financial difficulty because of the divorce, the other spouse may be ordered to pay a certain sum. Under Article 175 of the Turkish Civil Code, the spouse who will fall into poverty by reason of the divorce may claim maintenance provided that his or her fault is not graver than that of the other party. This claim may be advanced during the divorce proceedings, or raised by way of an independent action brought after the divorce. The amount is determined by the court, having regard to the economic position of the parties.
Poverty alimony is an arrangement intended to preserve the financial balance after a divorce. We examine below which persons may benefit from this right, the conditions required, how the amount is established, how it may subsequently be adjusted and in which cases it comes to an end.
The Nature and Legal Basis of Poverty Alimony
Divorce may bring about fundamental changes in the lives of the spouses not only emotionally but also economically. One of the spouses may fall into financial difficulty after the divorce and experience a marked decline in his or her standard of living. Poverty alimony is a safeguard mechanism provided by the legal order in order to remedy the detriment suffered by the economically weaker spouse.
That said, the institution is entirely need-based and is shaped by the economic position of the parties. The sum awarded varies according to whether the claimant spouse is in such difficulty as to be unable to provide for himself or herself, and according to the paying capacity of the other spouse.
Legal Basis
Poverty alimony is regulated in Article 175 of the Turkish Civil Code:
Turkish Civil Code Art. 175
“The party who will fall into poverty by reason of the divorce may, provided that his or her fault is not the graver, claim maintenance from the other party for his or her subsistence, in proportion to that party’s financial means, for an indefinite period or for a specified period. This payment, to be determined in proportion to the financial means of the party liable for maintenance, is ordered by a decision of the court.”
Under the provision, the party who will fall into poverty by reason of the divorce may claim maintenance from the other party, for an indefinite or a specified period, in order to provide for his or her subsistence, on condition that his or her fault is not graver than that of the other spouse. The court may, however, only so decide upon a claim; the judge has no power to award poverty alimony of his or her own motion.
The Conditions for Poverty Alimony
Poverty alimony is a form of support which, where certain conditions are met cumulatively, the court orders one spouse to pay to the spouse who has fallen into economic difficulty by reason of the divorce. For the court to be able to award this maintenance, the following conditions must be satisfied together.
A Claim Advanced by One of the Parties
For the court to be able to decide, the spouse seeking maintenance must state that claim expressly. If the party who will fall into poverty advances no claim at all, the court cannot award maintenance of its own motion.
It also matters that an amount is specified in the claim. Since the court is bound by the amount claimed, it cannot award maintenance higher than the sum sought. The claimant must therefore determine a reasonable amount by assessing his or her own need together with the financial means of the other party.
The Claimant Spouse Must Not Bear the Graver Fault
In order to become entitled to poverty alimony, the spouse seeking maintenance must not bear a graver fault in the divorce than the other spouse. Where the claimant spouse bears the graver fault in the events giving rise to the divorce, the court cannot award maintenance.
If, for example, one of the spouses has brought about the divorce through conduct contrary to the duty of fidelity, physical violence or serious insult, and his or her fault exceeds that of the other, the claim is dismissed. Where, by contrast, the spouses are equally at fault, or the spouse seeking maintenance is found to be less at fault, the claim may be taken into consideration.
The Claimant Spouse Must Fall Into Poverty
The court investigates whether the spouse seeking maintenance will genuinely fall into poverty. The poverty need not be severe; the claimant spouse must, however,
- have no regular and sufficient income,
- have no permanent employment,
- be unable to provide for his or her own subsistence.
In making this assessment the courts have regard to the claimant spouse’s assets, level of education, capacity to find work and the change in his or her standard of living. Falling far below the standard of living enjoyed during the marital union may be accepted as a valid ground for a maintenance claim.
Proportionality to the Financial Means of the Paying Spouse
In determining the amount, the court is bound to take into account the financial position of the spouse who is to make the payment. The income, expenditure, fitness for work and general paying capacity of the party liable for maintenance are examined in detail.
If the economic position of the paying spouse is extremely poor and there is no possibility of obtaining a regular income, the court may dismiss the claim or award a very modest amount. Where, by contrast, a spouse has the means to pay, maintenance may be ordered at a level that meets the needs of the other party.
Who May Claim Poverty Alimony?
Poverty alimony is a form of maintenance that may be sought by the spouse who will fall into economic difficulty by reason of the divorce. The purpose of the institution is to support the subsistence of the spouse who will fall into poverty after the divorce. Maintenance is therefore not a means of enrichment but an arrangement directed at remedying economic detriment.
A person who is in a position to sustain himself or herself after the divorce with his or her own assets or income cannot, for example, claim poverty alimony. On the other hand, the claimant spouse’s falling into poverty is not sufficient on its own; the court examines whether the remaining conditions are also met.
The Right of Divorced Spouses to Claim
Poverty alimony may be sought by either of the divorced spouses. For the claim to be allowed, the following conditions must be present together:
- the claimant spouse must be about to fall into poverty by reason of the divorce,
- the claimant spouse must not bear a graver fault in the divorce than the other spouse,
- the spouse who is to pay maintenance must have the financial means.
The court decides by assessing together the claimant spouse’s employment position, regular sources of income, assets and standard of living. The maintenance claim of a party who is in a position to provide for himself or herself comfortably may be dismissed.
Can a Husband Receive Poverty Alimony?
Although there is a widespread belief in society that poverty alimony is awarded only to women, the Turkish Civil Code draws no distinction on the basis of sex; both spouses have the right to seek maintenance. What is decisive is whether the spouse seeking maintenance will fall into poverty after the divorce and whether he or she bears a graver fault than the other spouse.
The Court of Cassation likewise makes its assessment without regard to any distinction between women and men. Indeed, in its decision of 20.12.2016 the 2nd Civil Chamber of the Court of Cassation held that a wife whose economic position was sufficient should pay poverty alimony to a husband who was not found to bear the graver fault and who would fall into poverty as a result of the divorce.
Accordingly, men whose economic position deteriorates after a divorce may also claim poverty alimony, provided that they satisfy the statutory conditions. The courts give their decisions not according to sex but according to the economic and legal position of the parties.
Can an Employed Spouse Claim Poverty Alimony?
The widespread belief that an employed spouse cannot receive maintenance is not accurate. When the salary of the spouse seeking maintenance and any additional income such as rental income or a retirement pension are assessed, the essential question is whether that income is sufficient to lift the person out of poverty.
The income of a spouse working for the minimum wage may, for example, prove insufficient for him or her to sustain a livelihood after the divorce. In such a case, in assessing the claim the court examines
- whether the level of income is sufficient to meet basic needs,
- whether there has been an appreciable decline in the standard of living after the divorce,
- whether the person has any financial security.
An employed spouse may therefore also claim maintenance if he or she is at risk of falling into poverty and satisfies the remaining conditions. For details on the subject, our note entitled “Can an Employed Spouse Claim Maintenance?” may be consulted.
The Amount of Poverty Alimony and the Criteria for Determining It
The amount of poverty alimony is appraised by the judge, having regard to the balance between the sum required for the subsistence of the spouse seeking maintenance and the economic means of the party who is to pay. The court awards an amount consistent with equity by assessing the economic and social position of the parties, the balance between their income and expenditure and their standard of living.
The Economic Position of the Parties
The most important criterion in determining the amount is the economic position of both parties. The court investigates whether the spouse seeking maintenance is genuinely in poverty by examining his or her income position, assets, earning capacity and general living conditions.
The purpose of poverty alimony is not to enable the claimant spouse to live in comfort but to provide him or her with a minimum level of economic security that will lift him or her out of poverty. Care is therefore taken, in setting the amount, not to give rise to enrichment.
The financial position of the paying spouse is likewise examined separately. Where the party liable for maintenance
- has no regular and sufficient income,
- has debts and high expenditure,
- has established a new family and is obliged to provide financial support to persons dependent on him or her (children, a spouse and so on),
the court may reduce the amount having regard to that picture, or may decline to award any maintenance at all. The paying capacity of the party liable constitutes the upper limit of poverty alimony.
The Judge’s Power of Appraisal
The court has a wide power of appraisal in determining the amount of poverty alimony. The judge decides by assessing together the official documents concerning the economic position of the parties, witness statements and expert reports. The following points stand out in particular in that assessment:
- whether the party seeking maintenance is fit for work
- the standard of living of the spouses before the divorce
- whether the claimant has assets and regular income such as rent, a salary or a retirement pension
- the monthly income of the party liable for maintenance and the number of persons dependent on him or her
The court determines an amount consistent with equity by weighing these elements together.
Standard of Living and Basic Needs
It is a fundamental principle that a spouse who enjoyed a high standard of living before the divorce should not be condemned to a very low level after it. That principle does not, however, mean that the maintenance creditor will continue to enjoy exactly the same level of comfort as before the divorce.
The judge has regard to the food, housing, health, education and other basic needs of the spouse seeking maintenance. Maintenance is awarded not so that the pre-divorce life may be continued exactly as it was, but in order to meet basic needs.
Factors such as whether the maintenance creditor is of working age, his or her level of education and his or her potential to find work are also brought into the assessment. If the claimant is in a position to work and to provide for his or her own subsistence, the court may keep the amount low or decline to award any maintenance at all.
The Amount of Maintenance in Divorce by Agreement
The parties may agree freely on poverty alimony in an action for divorce by agreement. The amount of the maintenance and the manner of payment must be regulated clearly in the divorce settlement protocol.
Increasing and Reducing Poverty Alimony
Poverty alimony is a payment awarded in order to secure economic balance after a divorce; its amount may be altered over time, or the maintenance may be abolished altogether. Where significant changes occur in the economic and social position of the paying party or of the party receiving maintenance, an application may be made to the court for an increase, a reduction or termination.
Increasing the Maintenance
If the living conditions of the maintenance creditor have changed and the existing amount is no longer sufficient to meet his or her subsistence, an action for an increase may be brought. Economic crisis, inflation, the high cost of living and rising living expenses are among the principal grounds for such a claim.
The conditions required for an increase in maintenance:
- an adverse change in the economic circumstances of the maintenance creditor (for example, becoming unfit for work because of health problems)
- a rise in the cost of living such that the existing maintenance cannot meet the creditor’s needs
- an improvement in the financial position of the party liable for maintenance (for example, a marked rise in his or her salary or an increase in his or her assets)
In an action for an increase, the judge decides in a manner consistent with equity by reassessing the economic position of both parties.
Reducing the Maintenance
Where the economic position of the paying spouse deteriorates, or the financial position of the creditor improves, an application may be made to the court for the maintenance to be abolished or reduced.
The principal grounds on which a claim for reduction may be based:
- the paying spouse becoming unemployed or his or her income falling markedly
- the paying spouse marrying and becoming obliged to provide for his or her new family
- an improvement in the economic position of the spouse receiving maintenance (for example, taking up a well-paid post or acquiring a substantial inheritance)
- the maintenance creditor no longer being in a state of poverty
Where such developments occur, the party liable for maintenance may apply to the court for the payment to be reorganised in a manner consistent with equity. The court may award a new amount after assessing the economic position of both parties.
Termination of Poverty Alimony
Poverty alimony comes to an end upon the occurrence of certain conditions. Under the Turkish Civil Code, the maintenance obligation is extinguished in the following cases:
- The maintenance creditor remarrying: where the spouse receiving maintenance marries officially, poverty alimony terminates automatically. In cases of de facto cohabitation (a religious marriage ceremony, living together and so on), an action may be brought for the maintenance to be discontinued.
- The death of the maintenance creditor: since maintenance is a right strictly attached to the person, it comes to an end upon the death of the creditor. The maintenance does not pass to the heirs; the debtor is not obliged to make payments to the family of the deceased.
- The death of the maintenance debtor: where the party liable dies, the maintenance debt does not pass to the heirs and comes to an end. An application may, however, be made to the court for a share of support out of the estate for the maintenance creditor.
- An improvement in the economic position of the maintenance creditor: where the person receiving maintenance comes to have a regular and sufficient income, the paying party may apply to the court for the maintenance to be abolished. Where the creditor takes up a well-paid post, acquires assets or comes into a substantial fortune by way of inheritance, the maintenance may be abolished on the ground that he or she is no longer in poverty.
- The maintenance creditor leading a dishonourable life: if it is established that the spouse receiving maintenance is living in a manner contrary to the general moral rules of society, that he or she is not working despite being fit for work, or that he or she is using the maintenance for purposes other than those intended because of bad habits, the party liable may bring an action for the maintenance to be abolished. If it is proved, for example, that the maintenance is being directed towards luxury spending or arbitrary purposes, the payment may be terminated.
Is Poverty Alimony of Indefinite Duration?
Under Article 175 of the Turkish Civil Code, poverty alimony is of indefinite duration. That is why the institution is referred to in public debate as “indefinite maintenance”. Indefinite maintenance denotes the payment made for an indefinite period by one party to the party who will fall into poverty by reason of the divorce, on condition that the latter’s fault in the divorce is not the graver.
The Development of the Practice of Indefinite Maintenance
In Turkish law the practice of indefinite maintenance has been subject to different arrangements in the past and has changed over time.
- Under Article 144 of the earlier legislation, Civil Code No. 743, maintenance could be paid only where the spouse without fault fell into severe poverty, and for a maximum period of one year. That structure positioned maintenance as a support mechanism of a temporary character.
- By the statutory amendment made on 04.05.1988 this limitation was removed, and the practice of indefinite maintenance entered into force as from 12.05.1988. Since that date maintenance may be awarded without being confined to any particular period of time.
Current Debates
Indefinite maintenance has in recent years become a subject frequently debated on both the legal and the social plane. Some jurists and a section of the public argue that maintenance of indefinite duration is not fair and should be limited to a specified period. The criticism focuses in particular on an obligation capable of lasting a lifetime arising after short marriages.
In line with these debates, some decisions of the Court of Cassation and some academic works assess indefinite maintenance as capable of being limited to a specified period according to the particular features of each case.
Poverty Alimony Proceedings
How Is Maintenance Claimed?
Poverty alimony is a form of maintenance that can be awarded only if the claimant applies to the court. The judge cannot decide of his or her own motion; the claim must without fail be advanced. The claim may be raised during the divorce proceedings, or by bringing an independent action after the divorce has become final.
- A claim during the divorce proceedings: poverty alimony may be sought when the divorce action is brought or while the proceedings are pending. The claim must be stated expressly in the divorce petition and the sum sought must be set out. If maintenance has not been claimed during the proceedings, the court cannot award it when giving the divorce judgment.
- A claim after the divorce has become final: if maintenance was not sought during the divorce proceedings, poverty alimony may be claimed by bringing an independent action after the judgment has become final.
- Maintenance in divorce by agreement: in divorces by agreement the parties settle the question of maintenance between themselves and sign a protocol. The amount, the duration and the manner of payment of the maintenance must be regulated expressly in that protocol. If the claim to maintenance has been waived in the protocol, maintenance cannot be sought again after the divorce has become final.
Statute of Limitations
Article 178 of the Turkish Civil Code regulates the period applicable to the matter:
Turkish Civil Code Art. 178
“Rights of action arising from the ending of the marriage by reason of divorce become time-barred upon the expiry of one year from the date on which the divorce judgment became final.”
Under this provision, if poverty alimony was not sought during the divorce proceedings, an independent maintenance action must be brought within one year at the latest from the date on which the divorce judgment became final. If no action is brought within that period, the right to claim maintenance becomes time-barred and no action may be brought thereafter.
Courts with Subject-Matter and Territorial Jurisdiction
- Court with subject-matter jurisdiction: the courts with subject-matter jurisdiction to hear claims relating to poverty alimony are the Family Courts.
- Court with territorial jurisdiction: the court of the place of residence of either spouse, or the court of the place where the spouses last resided together for six months before the action was brought, has territorial jurisdiction.
Legal Remedies Where Maintenance Is Not Paid
Where the party liable for maintenance fails to pay despite the court’s decision, the creditor may pursue his or her right by the following means:
- Enforcement proceedings: the creditor may apply to the Enforcement Office and commence enforcement proceedings against the maintenance debtor in respect of the unpaid maintenance. The unpaid sum may be collected by attaching the debtor’s salary or assets.
- Coercive imprisonment: coercive imprisonment may be applied under the Enforcement and Bankruptcy Act No. 2004 against a person who fails to pay a maintenance debt. That sanction comes to an end once the debt is paid.
Independent Legal Assessment
Two axes determine the outcome in poverty alimony disputes: the distribution of fault and the quality of the documentation of the economic picture. Since the assessment of fault is made in the divorce proceedings, the fate of the maintenance claim is most often shaped by how the assertions and defences in the principal action are constructed. Setting out the economic position not through abstract assertions but through income documents and official records directly affects the amount that will be appraised.
In a particular file it is appropriate to address the following points in advance:
- advancing the claim expressly in the petition and stating a specific amount, bearing in mind that the court cannot award more than is claimed
- planning the evidence as to the distribution of fault from the outset, having regard to the fact that it directly affects the maintenance outcome
- monitoring the one-year limitation period which runs from the date on which the divorce became final
- assessing the fact that waiving maintenance in a divorce settlement protocol produces an irreversible consequence
- documenting the data concerning the parties’ income, expenditure and dependants
- planning actions for an increase, a reduction and an abolition as a whole, against the possibility that circumstances subsequently change
Independent Legal provides advisory services and conducts litigation throughout the whole process in divorce and maintenance disputes, from the construction of the claim to the enforcement of the judgment.