Types of Maintenance and Their Legal Framework: Interim, Poverty, Child and Assistance Maintenance

The ending of the marital union alters not only the parties’ personal relationships but also their economic positions, and does so fundamentally. Following a divorce or separation, one of the spouses or the common children may be left without the income needed to maintain their former way of life. In order to meet this eventuality the Turkish Civil Code No. 4721 has regulated the institution of maintenance; through this financial obligation, which arises from a court decision, it seeks to balance the economic effects of divorce and to protect those who fall into difficulty in providing for themselves.

Maintenance is not an institution that arises only between spouses. Maintenance may also be awarded in order to meet the care and education expenses of the common children; beyond that, an obligation may arise within the framework of family law between ascendants and descendants and as between siblings. The type, amount and duration of the maintenance are determined by the court, having regard to the parties’ financial circumstances, the allocation of fault in the divorce and the concrete needs at hand.

Which persons, then, may claim maintenance, how many types of maintenance are there, and on what conditions does each depend? These questions have gained further importance in recent years, in which the debate over open-ended maintenance has occupied the public agenda. Below we address the institution of maintenance under the headings of its types, its conditions, the determination of the amount, its adaptation, its termination and the litigation process.

The Concept of Maintenance and Its Legal Basis

Maintenance is a financial obligation arising from a court decision, the purpose of which is that one person should provide economic support to another on account of a divorce, a separation or certain family obligations. The essential function of the institution is to remedy the economic imbalance that emerges after a separation or divorce and to prevent hardship from arising. A maintenance claim may be advanced not only between spouses but also in respect of children and, in certain circumstances, other members of the family.

Maintenance, as regulated in the Turkish Civil Code No. 4721, is positioned in the field of family law as an obligation protecting the economic rights of individuals. The principal statutory bases of the institution are as follows:

• Turkish Civil Code No. 4721, Article 175: provides that a spouse who will fall into poverty on account of the divorce may claim maintenance from the other party in proportion to that party’s financial means.
• Article 176: contains provisions on the amount of the maintenance, the conditions of payment and the grounds of termination.
• Article 182: provides for the payment of child support by the party who has not been granted custody, in order to contribute to the child’s care and education expenses.
• Article 364: covers the obligation of economic support between ascendants and descendants and between siblings within the scope of assistance maintenance.

This legal framework was created in order to prevent the loss of rights and to secure social justice, having regard to the parties’ financial circumstances.

Types of Maintenance

Interim Maintenance

Interim maintenance is a type of maintenance awarded provisionally, while a divorce or separation action is pending, in order to secure the subsistence of the spouses and the children. Since the marital union does not end in law until the divorce decision becomes final, the spouses’ obligation of care towards one another subsists. The judge may therefore award interim maintenance in favour of the spouse of insufficient means or of the common children.

Definition:

Interim maintenance is maintenance of a provisional character, awarded by the court of its own motion or upon request, upon the bringing of a divorce or separation action and for so long as the proceedings continue, in order to provide for the subsistence of the spouse or the children in economic difficulty.

Conditions:

The conditions required for interim maintenance to be awarded are as follows:

• The existence of an official marriage: This type of maintenance arises only in respect of officially married spouses.
• The spouses living apart: The claim may be advanced while a divorce action is pending or where the parties are living apart for just cause.
• The existence of just cause: The spouse claiming maintenance is required to be justified in living apart.
• A need for financial support: It must be established that the spouse or child making the claim genuinely needs financial support.

Article 197 of the Turkish Civil Code No. 4721 provides that interim maintenance may be claimed even where no divorce action has been brought:

Turkish Civil Code No. 4721, Art. 197
“Where the suspension of living together is based on just cause, the judge shall, upon the request of one of the spouses, take the measures relating to the financial contribution to be made by one to the other, to the use of the dwelling and the household goods, and to the administration of the spouses’ property.”

Duration:

Interim maintenance takes effect from the moment it is awarded by the court and continues until the decision becomes final. Once the divorce decision has become final, where:

• poverty alimony is awarded in respect of the spouse, or
• child support is awarded in respect of the child,

those types of maintenance take the place of the interim maintenance.

Important Points:

In determining interim maintenance, it is not the spouse’s fault but his or her economic need that is taken as the basis. Where custody of the common children is provisionally granted to one spouse for the duration of the proceedings, interim maintenance may be awarded in favour of the child and against the other spouse, in order to meet the child’s care expenses.

The court may award interim maintenance of its own motion in favour of the spouse or child of insufficient means, even where no request has been advanced by the parties. For the details of the subject, our note entitled Interim Maintenance and Its Conditions may be consulted.

Poverty Alimony

Poverty alimony is a type of maintenance paid by one spouse, in proportion to that spouse’s financial means, to the spouse who will be placed in economic difficulty by the divorce. Where one of the spouses experiences a serious decline in living standards after the divorce and falls into poverty, an obligation to pay may be imposed on the other spouse in order to remedy that imbalance. This maintenance, regulated in Article 175 of the Turkish Civil Code No. 4721, may be awarded only upon request; the judge has no power to decide of his or her own motion.

Definition:

Poverty alimony is maintenance ordered to be paid by one spouse, in proportion to that spouse’s financial means, to the party who will fall into poverty because of the divorce, having regard to the position as to fault in the divorce. It takes effect after the divorce decision has become final and may continue for an indefinite period.

Conditions:

• The divorce must have become final: Poverty alimony cannot be awarded while the marriage subsists.
• The claimant must fall into poverty as a result of the divorce: The spouse claiming maintenance is required to have become unable to provide for himself or herself following the divorce.
• The claimant must not be at graver fault: Where the spouse claiming maintenance is at graver fault than the other spouse in the events leading to the divorce, the claim may be dismissed.
• The claim must have been submitted to the court: This maintenance may be awarded only upon the application of the spouse claiming it; the judge cannot decide of his or her own motion.

In addition, the claim of a spouse who refuses to work despite being in a position to do so, and who falls into poverty for that reason, may be dismissed by the court. A claim for maintenance by a person who does not work although he or she has a profession by which a livelihood could be earned is incompatible with the principle of good faith.

Duration:

Poverty alimony is a type of maintenance that may be awarded for an indefinite period. The obligation nevertheless comes to an end in certain circumstances:

• the remarriage of the maintenance creditor,
• the death of the maintenance creditor or of the person liable for the maintenance,
• the disappearance of the maintenance creditor’s state of poverty (for example, his or her obtaining a regular and sufficient income),
• in circumstances such as the maintenance creditor leading a dishonourable life, the removal of the maintenance may be ordered by court decision.

The practice of open-ended maintenance is intensively debated in the doctrine and in judicial practice. Differing views are advanced in favour of abolishing maintenance altogether or of limiting it to a fixed period. For the details of the subject, our notes entitled Open-Ended Maintenance, A Legal Assessment of Open-Ended Maintenance and Maintenance Abroad may be examined.

The Court with Subject-Matter and Territorial Jurisdiction:

• The court with subject-matter jurisdiction to hear an action for poverty alimony is the Family Court; in places where no Family Court has been established, the Civil Court of First Instance has jurisdiction.
• Where maintenance has been claimed while the divorce action is pending, the court with territorial jurisdiction is the court hearing the divorce action.
• Where an independent action is to be brought after the divorce has become final, the Family Court at the claimant’s place of residence has territorial jurisdiction.

An action claiming poverty alimony must be brought within 1 year at the latest of the divorce becoming final; otherwise the right to claim maintenance becomes time-barred. For the details of the subject, our note entitled Poverty Alimony and Its Conditions may be consulted.

Child Support

Child support is the type of maintenance which the parent not granted custody is obliged to pay, in proportion to his or her financial means, in order to secure a contribution to the child’s care and education expenses following the divorce. In awarding this maintenance, which falls within the scope of Article 182 of the Turkish Civil Code No. 4721, the best interests of the child are taken into account, and the court may decide independently of the parties’ requests.

Definition:

Child support is the financial support which, where custody of the child is granted to one parent, the parent not granted custody is obliged to pay in order to contribute to the child’s care, health, education and general living expenses.

Conditions:

The following conditions are required for child support to be awarded:

• Custody of the common child must have been granted to one party: Custody must have been granted to one of the spouses during or after the divorce process.
• The party not granted custody must contribute in proportion to his or her financial means: The amount is determined having regard to the economic circumstances and paying capacity of the person liable for the maintenance.
• The payment must be directed to the child’s basic needs: The court awards maintenance having regard to the expenditure required for the child’s education, health, housing and social development.

Child support may be claimed during the divorce action, and equally by an independent action brought after the divorce has become final. Where custody of the child has been provisionally granted to one party for the duration of the proceedings, the court may award interim maintenance; once the divorce becomes final, that maintenance may be converted into child support.

Since the court takes the best interests of the child as its basis, the fact that no child support was awarded at the time of the divorce does not preclude a claim from being made later. Where there is more than one child, the amount is determined by assessing the needs of each child separately.

Duration:

As a rule, child support continues until the child attains majority. The obligation may nevertheless be extended where the child continues his or her education.

• Where the child’s education is continuing: In Turkish law the parents’ obligation of care does not end simply upon the age of majority; for so long as the child’s education continues, the obligation may subsist under the name of assistance maintenance.
• Where the child begins to work: Where the child takes up employment by which he or she can provide for himself or herself, an application may be made to the court for the removal of the child support.

The Court with Subject-Matter and Territorial Jurisdiction:

• In actions for child support, the court with subject-matter jurisdiction is the Family Court; in places where there is no Family Court, the Civil Court of First Instance has jurisdiction.
• The court of the place of residence of the child who is the maintenance creditor, or of the parent who has custody, has territorial jurisdiction.
• Where the claim has been advanced within the divorce action, the Family Court hearing the divorce action has territorial jurisdiction.

For the details of the subject, our note entitled Child Support – Maintenance for the Child and Its Conditions may be examined.

Assistance Maintenance

Assistance maintenance is the type of maintenance that enables a person to receive financial support from his or her descendants, ascendants or siblings who are in better economic circumstances, in order to prevent that person from falling into poverty. This maintenance, regulated in Article 364 of the Turkish Civil Code No. 4721, seeks to give effect to solidarity between members of a family and to relieve the hardship of close relatives in economic difficulty.

Definition:

Assistance maintenance is the type of maintenance that allows a person of insufficient means who is unable to provide for himself or herself to receive financial assistance from his or her descendants (children), ascendants (parents, grandparents) or siblings.

Conditions:

The following conditions must be present together for assistance maintenance to be awarded:

• The claimant must be liable to fall into poverty: This maintenance is awarded only to persons who are genuinely in need. The person making the claim must not have income or assets at the minimum level enabling him or her to subsist.
• The person liable for the maintenance must have the financial means: The person who is to make the payment is required to have sufficient income, and the maintenance must not endanger his or her own subsistence.
• There must be a blood relationship: Assistance maintenance may be awarded only between descendants, ascendants and siblings. As regards siblings, and unlike other relatives, the obligation arises only where the sibling from whom maintenance is claimed is in comfortable circumstances.
• The requirement of a request: This maintenance may be awarded only upon an application made to the court; the judge cannot award it of his or her own motion.

Assistance maintenance is a type of maintenance of a secondary character; it cannot be claimed directly without recourse having been had to the primary types of maintenance. The person making the claim must first seek support from those under an obligation of care (for example, from his or her parents or spouse) and, where that application proves fruitless, then pursue the route of assistance maintenance.

Duration:

Assistance maintenance is paid for so long as the claimant’s state of poverty continues. It may nevertheless come to an end in the following circumstances:

• an improvement in the maintenance creditor’s economic circumstances,
• a deterioration in the financial circumstances of the person liable for the maintenance,
• the death of one of the parties.

The Court with Subject-Matter and Territorial Jurisdiction:

A person claiming assistance maintenance may bring an action before the Family Court at his or her place of residence. In places where there is no Family Court, jurisdiction to hear such an action lies with the Civil Court of First Instance. For the details of the subject, our note entitled Assistance Maintenance and Its Conditions may be consulted.

Determining the Amount of Maintenance

The amount of maintenance is assessed by the court within the framework of the principle of equity, having regard to the parties’ economic and social circumstances. In making that assessment, an attempt is made to strike a balance between the paying capacity of the person liable for the maintenance and the needs of the maintenance creditor. While examining the income level, assets and paying capacity of the person liable, the court also assesses the creditor’s subsistence conditions and standard of living. In the case of child support, the child’s education, health and basic care expenses come to the fore. Weighing all of this material together, the judge awards a sum appropriate to the economic conditions.

The Basic Criteria Taken into Account in Determining the Amount of Maintenance:

• The parties’ financial circumstances: Income level, assets, working conditions and standard of living are examined.
• The claimant’s needs: The claimant’s subsistence position, living conditions and opportunity to earn an income are assessed.
• Expenses relating to the child (child support): The child’s age, education costs, health needs and general care expenses are decisive.
• The position as to fault in the divorce (as regards poverty alimony): Maintenance is not awarded in favour of the spouse at graver fault.
• The cost of living and economic conditions: The amount may be updated having regard to inflation, purchasing power and changes in subsistence conditions.

Increasing or Reducing the Amount of Maintenance

The amount of maintenance is determined on the basis of the economic and social conditions prevailing at the date of the judgment. Over time, appreciable changes may occur in the parties’ financial circumstances or living conditions. Changes of this kind may make it necessary to apply to the court for the amount to be increased, reduced or removed altogether.

The Principal Circumstances That May Call for Adaptation:

• A change in the parties’ financial circumstances: An increase may be sought where there is a marked rise in the income of the person liable for the maintenance or where the creditor’s economic conditions deteriorate. In the converse situation, that is, where the person liable falls into financial difficulty, a reduction may be claimed.
• A change in the child’s needs: As regards child support, the amount may be raised where the child’s education, health or general care expenses increase. Where the child attains economic independence, the maintenance may be reduced or removed.
• The cost of living and economic conditions: The existing amount proving insufficient on account of inflation, a fall in purchasing power and general economic fluctuations may constitute a ground for an increase.
• An increase in the economic burden on the maintenance debtor: Circumstances such as the person liable starting a new family, having other children or losing his or her job may provide grounds for a claim for a reduction.
• The maintenance creditor attaining economic independence: Where the creditor takes up employment, obtains a regular income or comes into a new source such as an inheritance, the amount may be reduced or the maintenance removed altogether.

In order for the maintenance to be increased or reduced, the person liable or the creditor may apply to the Family Court with territorial jurisdiction and bring an action for the adaptation of the maintenance. The court examines the changes in the parties’ financial circumstances and delivers a fresh decision within the framework of equity.

Termination of Maintenance

Maintenance is a financial obligation awarded on condition that certain circumstances continue to exist. Where those circumstances disappear, the obligation to pay may likewise come to an end. The types of maintenance awarded by court decision may be removed as a result of changes in legal and social conditions.

The Principal Grounds Terminating Maintenance:

• Remarriage: Where the maintenance creditor enters into a new marriage, the right to poverty alimony lapses and payment comes to an end. By contrast, child support paid for the child continues.
• The death of one of the parties: Upon the death either of the person liable for the maintenance or of the creditor, the obligation comes to an end automatically; maintenance does not pass to the heirs.
• The disappearance of the state of poverty: Poverty alimony is awarded only to the party placed in economic difficulty by the divorce. Where the creditor begins to obtain a regular income or becomes able to provide for himself or herself, the person liable may apply to the court and seek the removal of the maintenance.
• The child attaining majority (as regards child support): As a rule, child support ends when the child reaches the age of 18. Where the child’s education is continuing, however, it may subsist by court decision under the name of assistance maintenance.
• Leading a dishonourable life: Where it is established that the maintenance creditor is leading a life contrary to morality or disruptive of public order, the person liable may bring an action and seek the removal of the maintenance. This ground is assessed above all in relation to poverty alimony.
• Loss of financial means by the payer of the maintenance: Where the person liable falls into serious economic difficulty and no longer has the capacity to pay, he or she may apply to the court and seek the removal or reduction of the maintenance.

The termination of maintenance does not occur automatically; an application must be made to the court and a decision obtained. The judge examines the parties’ economic and social conditions and decides, within the framework of equity, on the removal or the continuation of the maintenance.

Maintenance Actions and the Litigation Process

Maintenance actions are actions brought by the claiming party in order to relieve difficulty in providing for himself or herself, or to meet the care and education expenses of the children. Such actions may be heard together with the divorce proceedings, and equally may be brought independently after the divorce. The court decides after assessing the parties’ financial circumstances and the merits of the claim.

How Is a Maintenance Claim Advanced?

A person claiming maintenance may apply to the court within the divorce action or by bringing an independent action, according to the type of maintenance.

• A claim within the divorce action: The spouse bringing the divorce action may claim interim maintenance, poverty alimony or child support in the petition. The court examines the parties’ economic circumstances and decides on those claims.
• An independent maintenance action: Where maintenance was not claimed during the divorce proceedings, or where maintenance is sought after the divorce has become final, a separate action may be brought. An independent action must likewise be brought in respect of claims such as assistance maintenance.
• A claim for an increase or removal: In order for the amount to be increased, reduced or removed altogether, the person liable or the creditor may apply to the court and bring an action for the adaptation of the maintenance.

Courts with Subject-Matter and Territorial Jurisdiction

The court with subject-matter jurisdiction: Maintenance actions are heard by the Family Courts. In places where no Family Court has been established, jurisdiction to hear such actions lies with the Civil Court of First Instance.

The court with territorial jurisdiction: Where maintenance is claimed within the divorce action, the court hearing the divorce action has territorial jurisdiction. In independent maintenance actions, the court of the place of residence of the person claiming maintenance or of the person liable for it has territorial jurisdiction.

Legal Remedies Available Where Maintenance Is Not Paid

Where the person liable for the maintenance fails to make the payments notwithstanding the court decision, the creditor may pursue his or her rights by the following means:

• Enforcement proceedings: The creditor may apply to the enforcement office and commence enforcement proceedings against the debtor. The unpaid sum may be collected by placing an attachment on the debtor’s salary or assets.
• Coercive imprisonment: Coercive imprisonment may be applied under the Enforcement and Bankruptcy Act No. 2004 to a person who fails to pay a maintenance debt. That sanction comes to an end upon payment of the debt.
• An action for the increase or adaptation of the maintenance: Where the debtor’s economic circumstances improve or the creditor’s hardship increases, the amount may be updated by applying to the court.

Maintenance payments determined by court decision have the character of a legal obligation; where they are not performed, they may be collected by way of enforcement and by legal means.

Independent Legal Assessment

In maintenance disputes, the element determining the outcome is most often the legal characterisation. A claim founded on the same facts may be assessed as interim maintenance, poverty alimony, child support or assistance maintenance depending on the stage of the process at which it is advanced; the conditions, duration and grounds of termination of each type differ from one another. Mischaracterising the claim, or failing to advance it at all, can lead to losses of rights that are difficult to make good.

In a specific case it is appropriate to review the following matters in particular:

• Correctly identifying the type of maintenance to be claimed according to the stage the proceedings have reached
• Advancing the claim expressly and with a stated amount in the petition, bearing in mind that poverty alimony cannot be awarded of the court’s own motion
• Diarising the period of 1 year that runs from the divorce becoming final
• Submitting to the file, in full, the documents relating to the parties’ income, assets and expenditure structure
• Assessing in good time, where economic conditions change, the possibility of an action for adaptation
• Planning together the routes of enforcement proceedings and coercive imprisonment against the possibility of non-payment

Independent Legal provides advisory services and conducts litigation throughout the process in disputes arising from family law, from the identification of the maintenance claim to the enforcement of the decision.