Measurement alimony

Precautionary alimony is one of the 4 different types of alimony regulated in the Turkish Civil Code No. 4271. The types of alimony regulated in the TMK are as follows;

1. Precautionary Alimony: It is a type of alimony that spouses can request from each other for the maintenance of themselves and their children under the age of 18, before or during the divorce case.

2. POVERTY ALMOST: Poverty alimony is the type of alimony that the spouse who will fall into poverty due to divorce requests from the other spouse for his/her livelihood.

3. PARTICIPATION ALMOST: It is a type of alimony awarded to the spouse who does not have custody of the child after the divorce case, as a result of his/her obligation to contribute to the child's needs and livelihood.

4. ALMOST:This type of alimony is different from others. With TMK 364, everyone is obliged to pay alimony to their descendants, superiors and siblings who will fall into poverty if they do not help. In addition, in accordance with TMK 382/2, if the adult child's education continues, the mother and father are obliged to take care of the adult child, depending on their situation and conditions. The maintenance provided pursuant to this article is also considered as alimony.

REQUEST FOR PRECAUTIONARY ALIMONY BEFORE OPENING A DIVORCE CASE

It is not necessary to have a divorce case already filed in order to request alimony. The request for temporary alimony can be submitted in a separate lawsuit other than divorce and separation cases. If a divorce case is filed later, the two files will continue to be heard by combining them.

One of the requirements of the marriage union is common and living together. In the ordinary course of life, such situations occur that spouses live separately from each other, they are forced to live, and a spouse needs to receive alimony from the other spouse to support himself and his minor children, if any.

Such situations can be caused by one of the spouses changing the lock of the shared residence, preventing the other spouse from entering the residence, one of the spouses being addicted to alcohol or drugs, one of the spouses committing violence, the woman being left at her father's house by her husband with the intention of abandoning her and not letting her into the shared residence, etc. can be given as an example.

In such a case, the spouse requesting preventive alimony can file a lawsuit for preventive alimony in the Family Court where one of the spouses resides, or in the Civil Court of First Instance in places where a Family Court has not been established, provided that the spouse proves the justification of living separately. The request for preventive alimony of the separated spouse based on his own fault is rejected.

Since the acceptance of a precautionary alimony case depends on the requesting spouse proving the justification of living separately, alimony is not ordered as a precautionary measure before the decision. However, alimony may be ordered as a precautionary measure on behalf of minor children, in accordance with the parents' duty of care.

It is wrong for a mother or father to request alimony for their adult child just because they live in the same household. Since this request will be null and void, the judge will decide that there is no need to make a decision for the adult child. An adult child may file a lawsuit himself or through his attorney, if any.

The legal basis of the preventive alimony that can be requested before the divorce case,

Article 197 – "One of the spouses has the right to live separately as long as his personality, economic security or the peace of the family is seriously endangered due to shared life. One of the spouses may also make the above requests if the other avoids living together without a justifiable reason or when shared life becomes impossible for another reason. If the spouses have minor children, the judge takes the necessary measures in accordance with the provisions regulating the relations between parents and children." It is in the form.

REQUEST FOR PRECAUTIONARY ALIMONY AFTER OPENING A DIVORCE CASE

After the divorce case is filed, it becomes a legal right for the spouses to live separately from each other. Therefore, precautionary alimony is ordered for the spouse (regardless of man or woman) who will fall into poverty due to the divorce case, and for the children in cases where the judge gives custody of the children as a precaution during the divorce case.

Article 169- "When a divorce or separation case is filed, the judge ex officio takes the temporary measures that are necessary during the continuation of the case, especially regarding the accommodation and livelihood of the spouses, the management of the spouses' property and the care and protection of the children."

As can be understood from the article of the law, the judge must decide on the interim alimony ex officio, that is, on his own, even if it is not requested by the parties.

DEFECT IN MEASUREMENT ALMOST

While the article of the law regulates the situation of fault for the interim alimony requested before the divorce and for the poverty alimony, art. He did not mention the situation of fault in terms of precautionary alimony regulated in Article 169. Therefore, in this respect, no regulation has been made stating that perfection is required for provisional alimony to be awarded. Likewise, there are decisions of the General Assembly of Law in this direction. In some exceptional cases, temporary alimony is not awarded, considering that it would not comply with the rule of honesty and equity. For example, in the decision of the Supreme Court No. 2. HD 2002/16729 E. 2002/18114 K., "precautionary alimony cannot be given to a woman living with another man." It is stated as follows.

MEASURANCE ALIMONY FOR WORKING SPOUSE

When awarding interim alimony, the judge first investigates the economic and social situations of the parties, their wages, premiums and alleged assets. Accordingly, the fact that both spouses are working and have income is not a condition that prevents alimony from being awarded to one of the spouses. If there is a serious difference between the income levels of both parties working, precautionary alimony may be awarded. However, if both spouses have the same income level, they cannot be obliged to pay alimony to each other. This does not apply to children. Precautionary alimony obligation for children will continue.

ALMOST REQUESTED FROM THE ARRESTED, CONVICTIVE, MILITARY SPOUSE

There is no situation that constitutes a definite obstacle to awarding preventive alimony against people in this situation. Even though they are restricted in terms of legal action and movement due to their situation, they may be obliged to pay alimony if they have other income or assets.

STARTING, CHANGE AND TERMINATION OF MEASUREMENT ALMOST OBLIGATION

The obligation to provide alimony lasts from the date the divorce case is filed until the case is finalized. Precautionary alimony decisions are given by the judge as an interim decision, so they are not decisions that cannot be changed or revoked. When the changing circumstances and conditions are proven with evidence in the file, the provisional alimony obligation may end or the provisional alimony obligor and the provisional alimony amount may change.

Situations that terminate the alimony obligation; These can be listed as follows: the death of one of the spouses, a decision of absence, one of the spouses starting to live regularly with someone else, the waiver of the divorce case or the request for temporary alimony.

FAILURE TO PAY THE PRESENTATIONAL ALIMONY

The provisional alimony will be received based on the court's legally enforceable interim decision. Therefore, in case of non-payment by the obligor, enforcement proceedings may be initiated with this interim decision. Failure to pay alimony debt also has a criminal dimension. If the alimony creditor spouse has not paid his debt despite enforcement proceedings and 1 month has passed since the notification of the payment order, a complaint can be made to the Enforcement Criminal Court, and the alimony debtor can be punished with imprisonment of up to 3 months for violating his alimony obligation. In this case, as soon as he pays his debt, his sentence is reduced and he is released.