Law Office
Case Number: 2016/10871
Decision Number: 2017/227
“Text of Justice”
COURT: FAMILY COURT
As a result of the court hearing the case between the parties regarding the termination of alimony, and upon the defendant’s attorney’s appeal within the specified time limit against the decision partially accepting the case, after the decision to accept the appeal petition was made, the documents in the file were examined and the necessary evaluations were made:
COURT OF APPEALS
In the plaintiff’s attorney’s petition; it was stated that the parties divorced by mutual agreement with the numbered decision, that the client was ordered to pay the plaintiff monthly alimony of 300 TL in the divorce decision, that the decision became final on 10/05/2005, that the defendant did not need alimony, that the client had no income, that he was staying with his new spouse’s family, and that he was living with the help of his spouse’s family.
It was stated that the defendant’s request for alimony payments was entirely malicious, and a lawsuit was filed requesting, as a precautionary measure, the suspension of alimony debts, the alimony decision, and enforcement proceedings, the cancellation of poverty alimony, and the cancellation of the amounts of alimony currently committed and requested through enforcement.
The defendant’s lawyer, in his response, stated that his client had no regular and permanent income, movable or immovable property, that the plaintiff’s family was in a good financial position and had good means, and that they lived a very prosperous life with the financial support of both his own family and his wife’s family, and therefore requested that the proceedings be suspended as a precautionary measure. He requested that the claim be dismissed as contrary to law and procedure, that the claim for the removal of poverty alimony be dismissed, and that the plaintiff’s claim for the removal of accrued alimony be dismissed.
The court partially accepted the case and decided to remove the monthly alimony of 300.00 TL, and this decision resulted in the second decision in favor of the defendant, which was appealed by the defendant’s lawyer.
The case concerns the request to remove alimony.
Pursuant to Article 176/3 of the Turkish Civil Code (TMK), if the creditor remarries or one of the parties dies, the material compensation or alimony decided to be paid annually shall be automatically removed.
Pursuant to Article 176/3 of the Turkish Civil Code (TMK), if the creditor remarries or one of the parties dies, the material compensation or alimony decided to be paid annually automatically ends; if the creditor lives as if married without being married, their poverty ceases, or they lead a dishonorable life, it is terminated by court order.
The plaintiff, relying on the above provision of law, requests the termination of alimony on the grounds that the defendant’s poverty has ceased to exist. In this case, it is necessary to focus on the concept of poverty first.
As accepted in the decision of the General Assembly of the Court of Cassation dated 07.10.1998 and numbered 1998/2-656-688, poverty is the income sufficient to cover the necessary and mandatory expenses to increase the individual’s material well-being; including food, clothing, shelter, health, transportation, and culture (education).
Those who are not considered poor should also be considered poor.
It should be noted that in the established decisions of the General Assembly, “having the minimum wage income” is not considered an element that makes alimony payment impossible, and having an income above the minimum wage is also not considered an element that makes alimony payment impossible (… dated 07.10.1998, 1998/2-656 E, 1998/688 K. dated 26.12.2001, 2001/2-1158-1185 and dated 01.05.2002, 2002/2-397-339). In this case, it should only be considered as a factor in determining the amount of alimony.
Upon examination of the file; according to the social and economic status investigations of the parties; the plaintiff has not worked, has remarried, and lives on a rent of 500 TL; it has been understood that the defendant started working as an employee in September 2014 after the lawsuit was filed, receives a monthly salary of 1100 TL, and according to his records, has been receiving a monthly salary of 2300 TL since 2015.
In our specific case, the job the defendant started after the date of the lawsuit is not a job that can be terminated at any time and is not stable and secure. Working in temporary jobs does not require the removal of alimony. Given today’s economic conditions, it is not possible for the defendant to make ends meet with the alimony he receives; therefore, it is imperative that he find a job and work. Because
; the minimum wage does not eliminate poverty, the request to terminate alimony also includes a request for a reduction, and this situation will be considered as a factor in reducing the amount of alimony.
Therefore, the decision to accept the case as a whole was not found to be correct and had to be overturned.
In this case, the court must, taking into account the social and economic conditions of the parties and the balance between them, pay alimony in an appropriate amount in accordance with the principle of fairness emphasized in Article 4 of the Turkish Civil Code.
A decision to reduce it should be made.
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CONCLUSION:
The written judgment is erroneous as it does not take into account the principles explained above. For these reasons, the objections are valid, and the judgment has been overturned in favor of the defendant pursuant to Article 428 of the Code of Civil Procedure. The decision was made unanimously on January 18, 2017, and the avenue for appeal has been closed.