Maintenance awarded after the ending of the marital union is an instrument of balance directed at preventing one of the parties from being left economically defenceless. The Turkish Civil Code No. 4721 has framed this payment as financial support provided to the party who falls into difficulty in providing for himself or herself because of the divorce. The obligation in question does not, however, create an inviolable status that continues unchanged for ever once it has been awarded. Where the parties’ income position changes, where the person in the position of creditor becomes able to stand on his or her own feet, or where certain specific facts provided for in the statute occur, the removal of the maintenance may come into question.
The most debated points in practice are gathered at precisely this juncture: at what moment does the obligation lapse automatically, in which cases is it necessary to apply to the court, and what kind of change must be proved for the claim to be allowed?
In this briefing note we assess, with a view to practice, the ways in which maintenance comes to an end, the cases in which its removal may be sought from the court, the fate of maintenance determined by an uncontested divorce protocol and the approach taken to the subject in the decisions of the Court of Cassation.
The Legal Nature and Function of Maintenance
The obligation to pay that is awarded by the court, during the divorce proceedings or after the decision, in order that the party left in a financially weak position should not suffer harm, is called maintenance. The function of the institution is to guarantee that the spouse or the child is able to preserve his or her existing standard of living, and the matter is regulated in detail in the Turkish Civil Code No. 4721.
Nor is this payment peculiar to the relationship between the spouses alone. Maintenance may also be awarded in respect of children and members of the family in need of care. The aim pursued by the legislature is to remedy the economic imbalance that emerges upon the breakdown of the union and to prevent the hardship that would otherwise arise from it. The obligation does not, by contrast, continue unchanged for life; where the conditions are met, it may be removed altogether or its amount may be redetermined.
Poverty Alimony and Its Statutory Basis
The type awarded in favour of the spouse who becomes unable to provide for himself or herself because of the ending of the marriage is called poverty alimony. Article 175 of the Turkish Civil Code No. 4721 provides that this maintenance may be awarded without being tied to any time limit. So long as it is not removed by the court, and so long as no fact producing the effect of automatic termination occurs, the obligation to pay subsists.
Turkish Civil Code No. 4721, Art. 175 — Poverty alimony
“The party who will fall into poverty because of the divorce may, provided that his or her fault is not the graver, claim maintenance from the other party for an indefinite period, in proportion to that party’s financial means, for his or her subsistence. No fault on the part of the person liable for the maintenance is required.”
Cases in Which Maintenance Comes to an End Automatically
The occurrence of certain facts either removes maintenance directly or opens the way to its removal by court decision. The continuation of the payment rests on two foundations: the persistence of the creditor’s need and the preservation of the paying capacity of the person liable. Some facts destroy that foundation entirely.
In the cases addressed below, within the scope of Article 176 of the Turkish Civil Code No. 4721, maintenance ends without any separate court decision being required.
Remarriage of the Creditor
Where the maintenance creditor enters into a new marriage, the obligation lapses automatically and the former spouse need not continue to pay. There is no need to obtain a decision from the court for that result to follow; the debtor may stop the payments, and the creditor cannot advance any claim on the ground that payment has not been made.
By contrast, remarriage by the person liable does not produce the same result. That fact does not remove the maintenance; it may only constitute a ground for reducing the amount. Article 176(4) of the Turkish Civil Code No. 4721 allows maintenance to be reduced in a manner consistent with equity where the parties’ financial position changes; that does not, however, mean that the obligation disappears altogether.
The Death of One of the Parties
Maintenance has the character of a debt strictly attached to the person. For that reason, upon the death of one of the parties, whether creditor or debtor, the obligation comes to an end automatically. Where the creditor dies, the right to maintenance does not pass to his or her heirs and the heirs cannot claim payment from the surviving spouse; where the debtor dies, the heirs are not treated as having assumed the obligation to pay.
There is one matter that falls outside this rule: instalments of maintenance that arose during the creditor’s lifetime but were not paid may be claimed by the heirs. By the same logic, the debtor’s heirs must likewise meet maintenance that fell due during their predecessor’s lifetime but was not paid.
Majority and Economic Independence in Child Support
Child support is a financial obligation assumed by the parent who is not granted custody after the divorce, in order to participate in the child’s care, education and subsistence expenses. This obligation, too, is not unlimited and may come to an end in certain circumstances.
For the purposes of the Turkish Civil Code No. 4721, a child is regarded as having attained majority upon completing the age of 18, and child support lapses automatically at that moment. The paying parent is therefore under no obligation to continue contributing once the child turns 18.
There are nevertheless exceptions to the rule:
- In respect of a child who continues his or her education and for that reason continues to receive financial support from the family, maintenance may continue throughout the period of that education.
- Where disability or a permanent need for care is in question, the duration of the maintenance may be extended so as to cover the period during which that need persists.
The courts are able to rule that the duration of the maintenance be extended, assessing the child’s educational situation and personal circumstances.
The point to be underlined is this: in cases where maintenance lapses automatically, there is no need to bring a separate action for removal; the obligation has already come to an end in law. In such situations the maintenance debtor may stop the payments without applying to the court.
Situations in Which the Removal of Maintenance May Be Sought from the Court
The Turkish Civil Code No. 4721 has not framed maintenance as a debt of unlimited duration. Where the conditions provided for in the statute are met, recourse may be had to the courts for the removal of the obligation. That claim can be allowed only where a significant transformation has occurred in the financial or social circumstances of one of the parties. Below we address the grounds most frequently encountered in practice.
Marriage-Like De Facto Cohabitation and Abuse of Right
In practice one encounters creditors who, in order not to lose their right to maintenance, continue to live with another person as husband and wife without contracting an official marriage. This form of conduct is characterised as an abuse of right and is accepted as a ground requiring the removal of the maintenance by court decision.
In accordance with the settled case law of the Court of Cassation, where it can be shown that the creditor is leading a long-term life resembling marriage with another person without having established an official tie, the removal of the maintenance may be ordered.
An element of continuity is required. For a removal decision to be given on this ground, the cohabitation must not be provisional in character but must display continuity. Indeed, short-lived relationships or occasional cohabitation are not regarded as capable of producing that result; the courts expect concrete evidence showing that the creditor is in fact living as though married to be submitted to the file.
Decision of the Court of Cassation: in its judgment of 29.02.2016 in case no. 2015/17419 E., 2016/2787 K., the 3rd Civil Chamber of the Court of Cassation held that a de facto relationship resembling marriage requires the removal of the maintenance.
Improvement in the Creditor’s Economic Position
The essential ground for awarding poverty alimony is that the creditor has become unable to provide for himself or herself because of the divorce. The parties’ economic conditions may nevertheless diverge over the years; the creditor may emerge from the state of poverty or may markedly increase his or her income. Where such a picture emerges, the removal or reduction of the maintenance may be sought.
Within the framework of Article 176 of the Turkish Civil Code No. 4721, the debtor may claim the removal of the obligation where the improvement in the creditor’s economic circumstances is of a lasting character.
By way of example:
- his or her obtaining a regular retirement pension by exercising the right to retire,
- his or her holding sources of passive income of a continuing nature, such as rental income,
- a creditor who did not previously work taking up full-time employment and beginning to earn a regular wage,
- his or her acquiring assets by way of inheritance or embarking on a highly profitable venture,
are among the developments capable of justifying such a claim.
On the other side of the coin is the debtor’s position. A weakening of the maintenance debtor’s financial means for reasons such as unemployment, retirement or health problems likewise provides a basis for a claim for reduction. Weighing the parties’ current income and expenditure position, the judge may remove the maintenance altogether or may reduce its amount.
Weakening of the Maintenance Debtor’s Financial Means
The scope of the maintenance obligation is directly connected with the debtor’s paying capacity and is shaped according to the parties’ financial circumstances. Article 176(4) of the Turkish Civil Code No. 4721 allows the amount of the maintenance to be reduced, or the maintenance to be removed altogether, where a significant change occurs in the financial circumstances or where equity so requires.
Since judgments concerning maintenance are shaped according to the economic and social picture prevailing when they are given, a serious deterioration in the debtor’s position may occur in later years. Developments such as losing one’s job, bankruptcy, illness or a marked fall in income may turn the payment into a burden the debtor cannot bear. At that point it is legally open to the debtor to apply to the court and seek the removal or reduction of the maintenance.
The principal developments capable of providing a basis for a claim for reduction or removal are as follows:
- Serious illness and loss of the capacity to work: the debtor becoming unable to work on account of health problems, contracting an illness requiring permanent care, and his or her income falling permanently because of the loss of working capacity.
- An increase in the number of dependants: the debtor entering into a new marriage and having children, assuming the care of an elderly parent or a disabled sibling, and a rise in the education and care expenses of children born of the second marriage.
- Loss of employment and income: the debtor being dismissed or becoming bankrupt, and his or her regular earnings ceasing altogether or declining to an appreciable extent.
- A marked decline in income on account of retirement: the debtor’s pension falling upon retirement and the standard of living he or she enjoyed at the time the maintenance was awarded changing.
Where the circumstances listed above exist, the debtor may have recourse to the courts and seek the reduction of the maintenance or its complete termination.
Decision of the Court of Cassation: a fall in the maintenance debtor’s income is a valid ground for the removal of the maintenance.
Judgment of the 3rd Civil Chamber of the Court of Cassation, case no. 2017/8654 E., 2018/1254 K.:
“The claimant is the person liable for the maintenance; following the divorce he lost his job, his opportunity to work has been restricted on account of health problems and his level of income has fallen significantly. The court should, having regard to the parties’ current economic circumstances, rule that the maintenance be reduced or removed as equity requires.”
The judgment cited sets out clearly that the removal of maintenance is legally possible where a serious decline occurs in the debtor’s earnings.
The Creditor’s Blameworthy Way of Life
Maintenance is a form of support serving to relieve the creditor’s poverty and to prevent economic hardship. Where, by contrast, the creditor leads a life incompatible with the rules of general morality and with the law, the debtor acquires the opportunity to have recourse to the courts for the removal of the obligation.
Leading a dishonourable life. Within the framework of the Turkish Civil Code No. 4721, where the maintenance creditor leads a dishonourable life, the debtor may seek the removal of the maintenance from the court. What is decisive here is that the scope of the concept be drawn correctly.
What does the concept denote? The maintaining of a way of life that conflicts with society’s general understanding of morality is assessed within this scope. Having regard to the case law of the Court of Cassation and to settled practice, the following situations may be characterised as leading a dishonourable life:
- making the use or trafficking of narcotic substances a way of life,
- engaging in occupations contrary to general morality; carrying on unlawful activities or activities not accepted in moral terms,
- making the commission of offences a constant, to the extent that the criminal record is filled with serious offences,
- being unable to establish an ordered life on account of the extent reached by an addiction to alcohol and gambling,
- adopting patterns of life regarded in society as contrary to morality.
The creditor’s private life cannot, on the other hand, be taken by itself as proof that he or she is leading a dishonourable life. The fact that a person lives in comfort or travels does not by itself justify that characterisation.
The Child Becoming Able to Provide for Himself or Herself in Child Support
Child support is a form of financial support enabling the parent who does not take on custody after the divorce to contribute to the child’s basic needs. This support, too, is not open-ended; it may come to an end where the child begins to stand on his or her own feet in economic terms.
The child attaining economic independence may appear in the following forms:
- Where the child obtains financial independence by setting up his or her own business, the debtor may apply to the court seeking the removal of the maintenance.
- His or her marrying, or coming into a substantial income by a route such as inheritance, may produce the result that the maintenance comes to an end.
- Where he or she begins to work in full-time employment and obtains a regular income, the maintenance may end.
Decision of the Court of Cassation: the child working in full-time employment is a valid ground for the removal of the maintenance.
Judgment of the 3rd Civil Chamber of the Court of Cassation of 15.10.2019, case no. 2018/3652 E., 2019/5689 K.:
“The court has established that the child has completed the age of 18 and, having taken up full-time employment, receives a regular salary. The child has now become economically independent and able to provide for himself. The court should therefore rule that the maintenance be removed.”
This case law shows that the child’s attainment of economic independence, irrespective of whether he or she has attained majority, constitutes a sufficient ground for terminating the maintenance.
The Fate of Maintenance Determined by an Uncontested Divorce Protocol
An uncontested divorce action is a process in which the spouses reach agreement on all the pecuniary and non-pecuniary consequences of the divorce. The amount and duration of the maintenance are likewise shaped in that process by the parties’ common will and pass through the approval of the court. The maintenance obligation contained in the protocol is nevertheless not absolute in character; where the conditions are met, it may be reduced or removed altogether.
May Maintenance Set in the Protocol Be Changed Later?
The case law of the Court of Cassation accepts that maintenance agreed by an uncontested divorce protocol is binding, since it is the product of the parties’ mutual wills. Where the parties’ financial and social circumstances change in the ordinary course of life, however, the removal or reduction of the maintenance may be sought.
By contrast, it is not possible to make a claim for removal where there is no just cause whatever; such a claim is assessed as an abuse of right.
Grounds Justifying a Change
Where a significant change occurs in the financial or social circumstances of one of the parties, maintenance determined by protocol may be removed or reduced on the following grounds:
- the creditor beginning to lead a dishonourable life,
- the creditor remarrying or being in a form of cohabitation resembling marriage,
- the debtor being placed in economic difficulty on account of bankruptcy, loss of employment or a loss of income connected with health problems,
- the creditor becoming economically stronger; taking up full-time employment, beginning to receive a retirement pension or acquiring assets,
- the balance between the parties’ performances being upset by unforeseeable extraordinary developments; circumstances such as an economic crisis, the debtor becoming heavily indebted or falling ill.
Judgment of the 3rd Civil Chamber of the Court of Cassation, case no. 2018/5234 E., 2019/2146 K.:
“The parties accepted of their own free will the maintenance obligation determined in the uncontested divorce action. The economic circumstances of the person liable for the maintenance have, however, deteriorated severely, and the maintenance creditor has become able to provide for herself. The court should therefore rule that the maintenance be reduced or removed.”
The conclusion to be drawn from the judgment is this: maintenance determined by protocol cannot be changed arbitrarily, but where extraordinary circumstances arise the way to its removal is open.
Independent Legal Assessment
What is decisive in disputes concerning the removal of maintenance is correctly identifying which of the grounds listed in the statute is being relied on, and proving that that ground is of a continuing character. The principal reason why claims are dismissed is that the change advanced turns out to be provisional or is not supported by evidence. Confusing the cases of automatic termination with those requiring a court decision is also a frequent error; stopping payment without justification may result in enforcement proceedings.
In setting a road map in a specific case, it is appropriate to address the following matters first:
- Clarifying at the outset whether the claim calls for automatic termination or for removal by court decision
- Gathering in advance the income, health and record documents showing that the change in financial circumstances is lasting
- Establishing the element of continuity, at the level of witnesses and documents, in an allegation of marriage-like cohabitation
- Assessing together, in child support, the child’s educational situation and record of income
- Reasoning, in the case of maintenance set in an uncontested divorce protocol, that the change is of an extraordinary character, given the binding force of the parties’ will
- Advancing a claim for reduction in the alternative in the petition, in case the claim for removal is not granted
Independent Legal provides advisory services and conducts litigation throughout the processes of determining, adapting and removing maintenance in disputes arising from family law.