Receiving Orphan’s Allowance Does Not Prevent A Woman From Receiving Alimony For Poverty
3rd Legal Department
Case Number: 2018/330
Decision Number: 2018/993
“Case Law Text”
COURT: FAMILY COURT
Following the court’s trial of the case between the parties regarding the termination of alimony for poverty, the defendant appealed the ruling in favor of the plaintiff within the prescribed time limit. After the appeal petition was accepted, the documents in the file were reviewed and the following decision was reached:
COURT OF APPEALS DECISION
The plaintiff and the defendant were divorced by the Family Court’s decision numbered 2009/2. Family Court’s decision numbered 2009/4 E. 2009/724 K., that the defendant was awarded monthly alimony of 150.00 TL in favor of the defendant in the aforementioned divorce case, that the defendant’s financial situation improved due to the pension he received after the divorce case and the real estate he inherited from his deceased father, that he had custody of the children and was responsible for all their care and expenses, and that the current alimony obligation put him in a difficult financial situation. He therefore requested and filed a lawsuit for the monthly alimony of 150.00 TL to be lifted.
The defendant requested that the claim be dismissed, stating that the plaintiff’s financial situation was good and that the pension she received after her father’s death was not sufficient for her livelihood.
The court decided to accept the claim, and the defendant appealed the decision.
The case concerns the request for the termination of poverty alimony.
According to Article 176/3 of the Turkish Civil Code, material compensation or alimony decided to be paid in the form of income shall automatically cease upon the remarriage of the creditor or the death of one of the parties; it shall be terminated by court order if the creditor lives as if married without actually marrying, if their poverty ceases, or if they lead a life of dishonor.
The plaintiff requests the termination of alimony, claiming that there has been an increase in the defendant’s assets and standard of living.
As accepted in the decision of the General Assembly of the Court of Cassation dated 07.10.1998 and numbered 1998/2–656–688, those who do not have sufficient income to cover expenses deemed necessary and essential for the development of an individual’s material existence, such as food, clothing, shelter, health, transportation, and culture (education), must be considered poor.
It should be noted that the established decisions of the General Assembly of the Court of Cassation do not consider “having an income at the minimum wage level” as a circumstance that makes it impossible to grant alimony for poverty, nor do they consider having an income above the minimum wage as a circumstance that makes it impossible to grant alimony for poverty. (HGK.07.10.1998, 1998/2–656 E, 1998/688 K. 26.12.2001, 2001/2–1158–1185 and 01.05.2002, 2002/2–397–339). In this case, it should only be taken into account as a factor in determining the amount of alimony.
In the present case, it is seen that the parties were divorced by the decision of the 2nd Family Court dated 2009/4 E. 2009/724 K. and that the defendant was awarded 150.00 TL in poverty alimony.
It is understood that the defendant has been receiving an orphan’s pension since May 1, 2010, due to the death of his father, and that as of September 2011, the amount paid 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 creditor woman’s income will cover the above-mentioned mandatory and necessary expenses. In other words, the total amount of income received by the defendant is not sufficient to lift her out of poverty.
Considering the social and economic circumstances, needs, and expenses of the parties, in accordance with legal regulations and Supreme Court Precedents, the defendant woman’s salary income does not require the removal of the poverty alimony ruled against her. This situation is a reason for the reduction of poverty alimony. Therefore, the removal of poverty alimony against the defendant woman was not found to be equitable.
Therefore, the court shall: the social and economic circumstances of the parties shall be taken into account, and the balance between the parties shall be considered when determining alimony. In accordance with the principle of fairness emphasized in Article 4 of the Turkish Civil Code, the amount of alimony shall be reduced by a reasonable amount. However, the removal of alimony due to the erroneous evaluation of the evidence is incorrect and requires reversal.
CONCLUSION: Accordingly, the written judgment is unfounded without considering the above-mentioned principles. For these reasons, the appeal objections are accepted, and the judgment is REVERSED pursuant to Article 428 of the Code of Civil Procedure (HUMK). The advance appeal fee shall be refunded to the appellant upon request. Pursuant to Transitional Article 3 of Law No. 6100 and Article 440 of the Code of Civil Procedure No. 1086, the decision is final and cannot be appealed. It was unanimously decided on February 13, 2018.