Article 169 of the Turkish Civil Code stipulates that “When a divorce or separation lawsuit is filed, the judge shall ex officio take temporary measures necessary during the continuation of the lawsuit, especially regarding the housing and subsistence of the spouses, the management of the property of the spouses and the care and protection of the children.” Pursuant to the aforementioned provision, the judge may rule temporary maintenance for the child and the spouse who will fall into poverty during the divorce case. In this study, we will evaluate the conditions of the aforementioned temporary maintenance. Thus, in this study, we will also evaluate the conditions of the spousal maintenance to be ruled in favor of the spouse at the end of the case and the conditions of the child maintenance to be awarded for the child. This is because the temporary maintenance awarded for the child during the lawsuit is called subsidiary maintenance at the end of the lawsuit, and the temporary maintenance awarded for the spouse during the lawsuit is called spousal maintenance at the end of the lawsuit, if it is ruled.

 1. Conditions of Temporary Maintenance Spousal Maintenance for the Spouse

 While awarding temporary maintenance and spousal maintenance for the spouse, it is important whether the spouse will fall into poverty due to divorce. While determining whether the spouse will fall into poverty, the assets and income status of the spouse should be carefully examined. If the assets and income of the spouse are at a sufficient level – in other words, if these assets and income do not cause the spouse to fall into poverty due to divorce – then temporary maintenance and spousal maintenance will not be awarded for the spouse themselves.

1.1 First of all, it should be evaluated whether the spouse owns any immovables while awarding temporary maintenance and spousal maintenance in favor of the spouse.

First of all, it should be examined whether the spouse has any immovables registered in their name. The fact that the spouse resides in the immovable property registered in their own name and that this spouse has other immovable properties is accepted as an important factor for the denial of maintenance.

Decision of the 2. Civil Chamber of the Court of Appeal dated 02.03.2009, numbered 1527/3614 provides that;

“It is understood that the defendant has a 5-storey building, lives in his own house, has a rental income and receives a salary. In this case, it cannot be accepted that the defendant will fall into poverty due to divorce. While the request for spousal maintenance should be rejected, it was not correct to make a written judgment.”

Decision of the 2. Civil Chamber of the Court of Appeal numbered 2018/3688 E., 2018/13941 K. and dated 03.12.2018 provides that;

“In the inspection made at the shop of the claimant woman in the … district of … and in the expert report, it is understood that the total value of the immovable property is 280.000,00 TL as of the date of inspection, that she earns a total monthly rental income of 800,00 TL from this immovable property, and that she has a common immovable property with the defendant man. According to this situation, it cannot be said that the plaintiff woman will fall into poverty with divorce. The conditions of Article 175 of the Turkish Civil Code have not been met in favor of the woman. While the claimant woman’s request for spousal maintenance should be rejected, its acceptance as written is contrary to the procedure and law and requires reversal.”

 Decision of the 2. Civil Chamber of the Court of Appeal, numbered 2019/1441 E., 2019/3563 K. and dated 27.03.2019 provides that;

“It is understood that the defendant-counterclaimant woman owns one immovable property in …, two immovable properties in Develi/…, and a motor vehicle worth 40.000,00 TL, according to the statements of the witnesses, during the period when the parties were actually living separately, she provided for herself and the common children living with her with the rental income from the immovable property in …, she had the opportunity to earn income from other immovable properties, and according to her assets, she would not fall into poverty due to divorce. The conditions of Article 175 of the Turkish Civil Code have not been met. While the defendant-counterclaimant woman’s request for spousal maintenance should be rejected, it was not deemed correct to make a decision as written.”

 Decision of the 2. Civil Chamber of the Court of Appeal, numbered 2020/4082 E., 2020/9840 K. and dated 23.12.2020 provides that;

“It is understood that the defendant-counterclaimant woman has a regular income sufficient to meet the minimum living expenses and owns three independent immovable properties. As such, it cannot be said that the conditions of Article 175 of the Turkish Civil Code have been met. Therefore, while the defendant-counterclaimant woman’s request for spousal maintenance should be rejected, it was not deemed correct to rule spousal maintenance as written.”

Decision of the 11th Civil Chamber of the Istanbul Regional Court of Appeals numbered 2018/1859 E., 2020/501 K. and dated 11.05.2020 provides that;

“In the investigation obtained from the UYAP environment, it was seen that there are five immovable properties registered in the name of the woman, two of the immovable properties are duplex villas, they have 1/2 share with the defendant man in these villas, as proved during the trial phase, she obtain 4,500 TL rental income, according to the rental agreements submitted during the appeal phase, 12,500 TL rent from the same immovable properties.”

On Page 483 of the book titled Alimony Law by Ömer Uğur Gençcan, President of the 2nd Civil Chamber of the Court of Appeal indicates that;

“If the person seeking spousal maintenance has sufficient immovables, they should not be granted spousal maintenance.”

Decision of the 2nd Civil Chamber of the Court of Appeal dated 25.06.2002 and numbered 7538/8506 provides that;

“The inherited assets are capable of saving the woman from poverty. In the face of this situation, while the request for spousal maintenance should be rejected, it is against the procedure and the law to make a written judgment.”

1.2 Whether the spouse earns rental income from other immovable properties registered in their name other than the immovable property they live in is also accepted as an important factor in the rejection of the maintenance claim.

Decision of the 2nd Civil Chamber of the Court of Appeal numbered 2017/2391 E., 2018/13125 K. and dated 20.11.2018 provides that;

“In order to rule spousal maintenance in favor of the divorced spouse, the spouse requesting alimony must fall into poverty due to divorce (Art. 175 of the Civil Code). From the collected evidence; it is understood that the woman has a monthly rental income of 1.550,00 TL from the immovable property in the form of a two-story shop and apartment in … registered in the name of the defendant-counterclaimant woman, … and that the woman will not fall into poverty due to divorce. “

Decision of the 2nd Civil Chamber of the Court of Appeal numbered 2014/9854 E., 2015/1313 K. and dated 10.02.2015 provides that;

“It is understood that the defendant woman is a retired lawyer, has a pension and rental income, owns immovable properties in Istanbul and Silivri, and will not fall into poverty due to divorce. In the face of this situation, the conditions of Article 175 of the Turkish Civil Code for the benefit of the woman have not been met. While the respondent woman’s spousal maintenance request should be rejected, its acceptance has been inappropriate.”

Decision of the 2nd Civil Chamber of the Court of Appeal numbered 2016/5647 E., 2016/6276 K. and dated 30.03.2016 provides that;

“It is understood that the value of the villa belonging to the defendant woman is 750.000TL and that she has rental income from the other immovable property that has residential quality. In order for the defendant woman’s request for spousal maintenance to be accepted, it must be determined that she has fallen into poverty due to divorce. According to the existing assets, it cannot be accepted that the plaintiff will fall into poverty due to divorce. The conditions of Article 175 of the Turkish Civil Code are not met in favor of the woman. Therefore, while the request for spousal maintenance should be rejected, it was not correct to establish a written judgment.”

Decision of the 2nd Civil Chamber of the Court of Appeal numbered 2018/112 E., 2018/2075 K. and dated 19.02.2018 provides that;

“It has been determined that the plaintiff-defendant woman has a monthly rental income of 1.500,00 TL from the above-mentioned immovables and the land in …. According to this social and economic situation of the plaintiff-defendant woman, the conditions of Article 175 of the Turkish Civil Code are not occur in favor of the woman. Therefore; while the woman’s request for spousal maintenance should be rejected, it was not correct to make a decision in the written manner and it required a reversal.“

1.3 The fact that the spouse has a regular and fixed income every month is also considered as a reason for rejection of maintenance.

Decision of the 2nd Civil Chamber of the Court of Appeal dated 13.06.2005 and numbered 6653/8998 provides that;

“It is understood that the defendant woman has a continuous and regular income, and that she also has rental income. While the defendant’s request for temporary maintenance should be rejected, it was not correct to make a decision as written.”

Decision of the General Assembly of Civil Chambers of the Court of Appeal numbered 2005/305 E., 2005/338 K. and dated 11.05.2005 provides that;

“Since the court has ruled for an temporary maintenance for the joint child living with the plaintiff woman and the plaintiff has a regular income, the rule of temporary maintenance in favor of the plaintiff is contrary to the clear provision of the law.”

Decision of the 2nd Civil Chamber of the Court of Appeal numbered 2019/436 E., 2019/8409 K. and dated 09.09.2019 provides that;

“It is understood that the defendant-plaintiff woman has a pension and rental income, two apartments registered in her name, a summer house in Kilyos and a 1/5 share workplace. According to this situation, it cannot be said that the defendant-plaintiff woman will fall into poverty with the divorce. The conditions of Article 175 of the Turkish Civil Code have not been met in favor of the woman. While the defendant-plaintiff woman’s request for spousal maintenance should be rejected, its acceptance as written is contrary to the procedure and the law and requires reversal.”

Decision of the 2nd Civil Chamber of the Court of Appeal numbered 2012/8257 E., 2012/27659 K. and dated 20.11.2012 provides that;

“It is understood that the plaintiff woman started to receive a pension as a Social Security Institution (Bağkur) insured during the trial. Considering the fact that the plaintiff has no dependents and that her pension is continuous and regular, it cannot be said that she will fall into poverty upon divorce.“

Decision of the 2nd Civil Chamber of the Court of Appeal numbered 2007/14329 E., 2008/14302 K. and dated 30.10.2008 provides that;

“It is understood that the plaintiff woman receives a pension from the Pension Fund (Emekli Sandığı) and has a regular and continuous income. Although the conditions of Article 175 of the Turkish Civil Code have not been met, it has not been deemed correct to rule spousal maintenance in favor of the plaintiff woman without showing the justification.”

Decision of the 2nd Civil Chamber of the Court of Appeal numbered. 2007/11121 E., 2007/10813 K. and dated 09.07.2007 is that;

“From the collected evidence, it is understood that the defendant woman has existing assets and assets income and a continuous and regular pension income from the social welfare organization. These incomes of the defendant woman are sufficient to save her from poverty and the conditions of Article 175 of the Turkish Civil Code have not been met. While the respondent woman’s request for spousal maintenance should be rejected, it was not deemed correct to make a decision as written.”

1.4 Movables registered in the name of the spouse are also an important factor in this evaluation. According to the decisions of the Court of Appeal, the existence of a car in the name of the spouse -among other assets- is a reason for the denial of maintenance.

Decision of the 2nd Civil Chamber of the Court of Appeal dated 04.07.2006, numbered. 2077/10737 K provides that;

“It is understood that the defendant is retired from the Social Insurance Institution (Sosyal Sigortalar Kurumu), has rental income, owns a car and lives in her own house. It cannot be accepted that the woman with these assets and income would fall into poverty.”

Decision of the 2nd Civil Chamber of the Court of Appeal numbered 2009/4689 E., 2010/6898 K. and dated 08.04.2010 provides that;

“It is understood that the plaintiff has a pension and rental income, shared real estates and a private car. According to this situation, it cannot be accepted that the plaintiff will fall into poverty due to divorce. For this reason, the conditions of Article 175 of the Turkish Civil Code have not been met. Therefore, the claimant’s request for spousal maintenance must be rejected. “

Decision of the 2nd Civil Chamber of the Court of Appeal numbered 2006/9770 E., 2007/3926 K. and dated 13.03.2007 provides that;

“It is understood that the defendant woman owns a house in Bursa and a car and has a regular and continuous pension income. It is certain that the woman will not fall into poverty upon divorce. Although the conditions of Article 175 of the Turkish Civil Code were not met, it was not correct to assess spousal maintenance in favor of the woman.”

Decision of the 2nd Civil Chamber of the Court of Appeal numbered 2015/5043 E., 2015/18704 K. and dated 19.10.2015 provides that;

“It is understood from the investigation and the collected evidence that the plaintiff woman is retired and has … an apartment, … a rented shop and a car. Therefore, it cannot be accepted that the plaintiff woman has fallen into poverty. While it should be decided to reject the request for spousal maintenance, it is not correct to award spousal maintenance in favor of the plaintiff woman with the written justification, and it required a reversal.”

2. Evaluation of the legal conditions for the provision of temporary maintenance to be awarded for the child during the lawsuit and the child maintenance to be ruled at the end of the lawsuit

2.1 All expenses of the child should not be imposed on the spouse who is not granted temporary custody. Temporary maintenance should be determined by considering that the other spouse should also contribute.

 It should be accepted that the parents should participate to the extent of their power in the determination of the child’s temporary maintenance – and, at the end of the case, the child maintenance. This is clearly understood from Article 187/II of the Civil Code. This means that all care and education expenses of the child cannot be imposed on the non-custodial spouse, and it should not be ignored that the custodial party should also contribute.

On page 1218 of “Divorce, Compensation and Maintenance Law” by Ömer Uğur Gençcan, President of the 2nd Civil Chamber of the Court of Cassation indicates that;

“It should not be overlooked that in the event that custody of a child is awarded to one party, not only the party who is obliged to pay maintenance, but also the party to whom custody is awarded must contribute.”

Decision of the 3rd Civil Chamber of the Court of Appeal dated 27.01.2004 and numbered 33-415 provides that;

“Considering that the plaintiff mother will also contribute to these needs, the amount of maintenance ruled is excessive and is not in accordance with the principle of “equity” emphasized in Article 4 of the Turkish Civil Code.”

Decision of the 3rd Civil Chamber of the Court of Appeal numbered 2016/21938 E., 2017/10234 K. and dated 15.06.2017 provides that;

“care should be taken to ensure that the expenses that should be taken as a basis for determining the amount of maintenance remain within reasonable limits and that the party who is not granted custody is not subjected to heavy obligations.“

Decision of the 3rd Civil Chamber of the Court of Appeal numbered 2014/5195 E., 2014/13005 K. and dated 13.10.2004 provides that;

“While it is necessary to decide on an increase in the child maintenance in an amount that will provide a balance by considering the contribution of the mother according to the principle of equity in Article 4 of the Turkish Civil Code, in a way that will not force the father to pay and will not put him in need, it has not been deemed correct to decide to reject the request for an increase in the child maintenance with incomplete examination and erroneous evaluation.”

 Decision of the 3rd Civil Chamber of the Court of Appeal numbered 2014/21083 E., 2015/10213 K. and dated 03.06.2015 provides that;

“While it is necessary to rule an appropriate maintenance in proportion to the income of the defendant and in a way that will not force the defendant father to pay and will not put him in need, according to the principle of equity in Article 4 of the Turkish Civil Code, it was not deemed correct to rule a high rate of child maintenance in writing with incomplete examination and research, and it required a reversal.”

2.2 As stated above, in order to determine the contribution of the spouse who has been granted custody to the education and care expenses of the child, the income of the spouse who has been granted custody should also be investigated. In this context, it is necessary to write a letter to the relevant institutions and organizations to determine the immovables, rental income, salary, car and other movables of the spouse in question.

 As stated above, taking into account the contribution of the spouse who has been granted custody to the care and education expenses of the child, the temporary maintenance of the spouse – child maintenance at the end of the case – who has not been granted custody should be determined, and all care and education expenses of the child should not be imposed on the spouse who has not been granted custody.

In this context, it is necessary to write a letter to the relevant institutions and organizations to determine the immovables, rental income, salary, car and other movables of the spouse who is not granted custody.

As a matter of fact, on page 1216 of Ömer Uğur Gençcan’s “Divorce, Compensation and Maintenance Law”, it is provided that;

“Since the spouse who is not granted custody is obliged to participate in the child’s care and education expenses to the extent of his/her ability, the economic and social situation of the parents should be seriously investigated.”

2.3 The amount to be contributed by the non-custodial spouse should be determined based on the amount remaining after deducting all expenses from the monthly income of the non-custodial spouse.

While determining the temporary maintenance – child maintenance at the end of the case – this alimony should be found and determined in proportion to the power of the custodial spouses. What should be understood from the power is that the amount of maintenance is never the entire amount of the spouse’s wage from the workplace. What is meant by the spouse’s ability is the amount remaining after all expenses of the spouse are deducted.

Ömer Uğur Gençcan’s “Divorce, Compensation and Maintenance Law” clearly exemplifies the income to be taken into consideration on page 1219. According to this example, the spouse’s contribution should be calculated over the figure to be found after deducting all compulsory payments and compulsory living expenses from the monthly income of the spouse.

Decision of the 3rd Civil Chamber of the Court of Appeal numbered 2012/16799 E., 2012/21821 K. and dated 17.10.2012 provides that;

“The court has ruled a high maintenance disproportionate to the income and expenses of the defendant. The work to be done by the court consists of the actual social and economic situation of the parties, the nature of the maintenance and especially the change in economic indicators, and to rule an amount in accordance with the principle of equity emphasized in Article 4 of the Turkish Civil Code.”

Decision of the 3rd Civil Chamber of the Court of Appeal numbered 2012/16772 E., 2012/21824 K. and dated 17.10.2012 provides that;

“In the case; it is understood that the plaintiff is a single police officer with an average monthly income of 2.385 TL and lives in rented accommodation, the joint child was born in 2004 and is a first grade student in primary education, and the defendant is a married police officer with an average monthly income of 2.319 TL and lives in rented accommodation. It was not deemed correct by the court to rule a high maintenance disproportionate to the income and expenses of the defendant, and it required a reversal.”

Serkan Kolay
Partner | [email protected]