Law Office
Case Number: 2018/330
Decision Number: 2018/993
“Text of Justice”
COURT: FAMILY COURT
Following the court’s decision in the case between the parties regarding the termination of alimony, and upon the defendant’s objection within the period granted for acceptance of the case, after the decision to accept the objection petition was made, the documents in the file were examined and the necessary evaluations were made:
COURT OF APPEALS
The plaintiff and defendant… were divorced by the Family Court decision numbered 2. 2009/4 E. 2009/724 K., and in the aforementioned divorce case, monthly alimony of 150.00 TL was awarded to the defendant. The defendant continued to receive his deceased father’s pension after the divorce case. The plaintiff claimed that his financial situation had improved thanks to the real estate he acquired through inheritance, that he was responsible for the custody, care, and expenses of the children, and that the current alimony obligation put him in a difficult financial situation.
He requested that the monthly alimony of 150.00 TL be lifted and filed a lawsuit.
The defendant requested that the case be dismissed, stating that the plaintiff’s financial situation was good and that the salary given to her due to her father’s death was not sufficient to support her. T he court
accepted the case, and the defendant appealed the decision.
>The case concerns the request for the termination of alimony.
According to Article 176/3 of the Turkish Civil Code, alimony or monetary compensation automatically ends if the creditor remarries or one of the parties dies; it is terminated by court order if the creditor lives as if married, their poverty ceases, or they lead a dishonorable life. The plaintiff is requesting the termination of alimony, claiming that the defendant’s assets and standard of living have increased.
As accepted in the decision of the General Assembly of the Court of Cassation dated 07.10.1998 and numbered 1998/2-656-688, an income sufficient to cover the necessary and essential expenses (food, clothing, shelter, health, transportation, culture (education)) to improve an individual’s material well-being is considered poverty.
Those who do not have this income are considered poor.
Firstly, it should be noted that in the established decisions of the General Assembly, “having an income at the minimum wage level” is not considered an element that makes alimony payment impossible, nor is having an income above the minimum wage considered an element that makes alimony payment impossible (HGK. 07.10.1998, 1998/2-656 M, 1998/688 K. 26.12.2001, 2001/2-1158-1185 and 01.05.2002, 2002/2-397-339). However, it should be considered as a factor in determining the amount of alimony.
In the specific example; As seen, the parties were divorced by the decision of the 2nd Family Court numbered 2009/4 E. 2009/724 K., and alimony of 150,000 TL was awarded in favor of the defendant.
It was understood that the defendant woman received an orphan’s pension due to the death of her father as of May 1, 2010, and that as of September 2011, the payment made to the defendant consisted of a salary of 239.86 TL and an additional payment of 11.99 TL.
It cannot be expected that the alimony recipient’s income will cover the above-mentioned mandatory and necessary expenses. In other words, the defendant’s total income is not sufficient to lift her out of poverty.
Considering the social and economic conditions, needs, and expenses of the parties, the fact that the defendant woman’s wage income is in accordance with legal regulations and Supreme Court precedents does not require the removal of the poverty alimony awarded to her. This situation is the reason for the reduction of poverty alimony. Therefore, it was not considered fair to remove alimony for the defendant woman.
In this case, the court will decide; taking into account the social and economic conditions of the parties and considering the balance between the parties when evaluating alimony, the amount of alimony should be reduced to a reasonable extent in accordance with the principle of fairness emphasized in Article 4 of the Turkish Civil Code, and it is wrong to completely remove alimony as a result of the incorrect evaluation of the evidence.
CONCLUSION:
In this context, it is incorrect to issue a written decision without considering the principles explained above, and for these reasons, the appeals were accepted and a decision was made by the Court of Appeals. On February 13, 2018, by unanimous vote, pursuant to Article 440 of Law No. 1086 and with reference to Article 3 of the CPC, it was decided that the appeal fee would be refunded to the plaintiff upon request.