THE CONSTITUTIONAL COURT HAS DECIDED THAT MAKING A DECISION ON THE ALIMONY AMOUNT WHICH IS HIGHER THAN THE APPLICANT’S CLAIMED INCOME WITHOUT AN ADEQUATE RESEARCH WAS A VIOLATION OF A PERSON’S RIGHT TO PROTECT AND IMPROVE THEIR MATERIAL AND SPIRITUAL EXISTENCE !

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The Decision of the Constitutional Court Application Numbered 2016/3140 Dated 7/11/2019, published in the Official Gazette Numbered 30981 dated 17/12/2019.

In the case subject to the decision; The applicant’s divorced spouse has filed a lawsuit before the Family Court by claiming an increase on the amount of the alimony that has been paid for herself and her four children. The Court which has decided to partially accept the case has increased the amount of alimony that the applicant has been paying for his ex-spouse and his four children. The applicant, who has stated that he was working as a company employee in a hospital with minimum wage and that it was unfair to decide on an amount which was higher than his salary has made an appeal. The decision has been approved by the Supreme Court.

The applicant has stated that he was working as a company employee in a medical faculty hospital with a minimum wage and although he was getting 950 TRY as his monthly salary, the Court has decided for him to pay 1,000 TRY of a total alimony, and in this case, he was not having any money left for his livelihood and he was not able to survive in such case and he has claimed that the principle of equality, the right to life and to protect one’s material and moral existence were violated. In addition, the applicant has claimed that he had another child from his second marriage and that his right to respect for his family life was also violated since the Court has decided without considering this situation.

Since the claim that the amount of alimony decided is higher than his monthly income has a significant effect on the economic future of the applicant, the application made has been evaluated within the scope of the right to protect and improve one’s material and moral existence which was regulated in the Article 17 of the Constitution. Since the other claims of the applicant have not been put forward in the proceedings before the courts of instances, they have not been included in the subject of the individual application examination.

It is important to fully reveal the economic situations of the parties in order to understand whether an excessive and extraordinary burden has been individually put on one of the parties. In case that the applicant’s monthly income is indeed 950 TRY, it cannot be said that 1.000 TRY of total monthly alimony which is decided in disfavour of the applicant is fair.

In the decision of the Constitutional Court, it is seen that although the instance court should have contacted with the institution where the applicant was working and should have enlightened the subject by researching what the applicant’s duty was, how much the applicant was getting paid with the additional payments per month when the applicant has claimed that his monthly income was 950 TRY, the court has not conducted any research and evaluation on this matter and only the information  provided by the law enforcement officers is taken as basis for this decision. It has been also stated that there was no investigation by the Supreme Court during the appeal phase. Accordingly, it has been determined that the decisions of the instance courts has not contained the sufficient grounds which respond to the applicant’s claims and objections that could have an impact on the result.

As a result, the Constitutional Court that was convinced that the positive obligations within the scope of the right to protect and improve one’s material and moral existence are not fulfilled by the public authorities in the case subject to the application has unanimously decided that the right to protect and improve one’s material and moral existence guaranteed under the Article 17 of the Constitution has been violated and that a copy of the decision has been sent to the Court of First Instance for retrial to eliminate the consequences of the violation.

With this decision, the Constitutional Court shows the way that the Courts should follow in case of alimony requests. The Constitutional Court requires that the judges should investigate the income status of the parties and “fully reveal the income status” and that the decisions on the alimony should be made “as measured” and “by not putting an excessive and unusual burden on one of the parties”. The violation decision is a precedent for the ones that the increase on alimony cases are filed against to similarly.

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Mert-Yalcin

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