FINANCIAL CONSEQUENCES OF DIVORCE
In the event of divorce, spouses may have financial demands from each other under the Turkish Civil Code No. 4721. The possible financial claims that one spouse may be able to make against the other spouse are, requesting temporary alimony during the divorce case, requesting spousal support after the divorce order, pecuniary and non-pecuniary damages and division of matrimonial property.
According to the Art. 169 of Turkish Civil Code; “When the action for judicial separation or divorce is filed, the Judge shall take the interim measures on its own motion which are necessary during the case especially for accommodation, living costs, administration of estates of spouses and care and protection of children”
Judge shall decide one spouse to pay other a temporary alimony from the date of the divorce case until the finalization of the verdict given upon the divorce case.
The fault which causes the divorce is not important while deciding temporary alimony to be paid during the divorce case. Even the spouse who requests temporary alimony if faulty and causes the divorce, the judge may decide the temporary alimony on behalf of faulty spouse.
The judge will not take into consideration the defective fraction of the spouses but he/she will consider the economic situation and living conditions of spouses while deciding temporary alimony. If one of the spouses will encounter a decline in his/her living standards as a result of the divorce case, the Judge will decide the temporary alimony to be paid by the other spouse.
Under Article 175, both spouses are liable to pay maintenance within their means. This can be by way of a lump sum or periodical payments. Periodical payments would terminate automatically should one of the parties remarry or die. Maintenance payment can be terminated by the court if the receiving party cohabits, experiences a change in financial circumstances or behaves disreputably (Article 176). Art. 175 of Turkish Civil Law aims to protect one of the spouses to be in need after divorce. According to the Art. 175 of Turkish Civil Code, “The spouse who will be in need as a result of divorce may ask other spouse a spousal support indefinitely for living costs in proportion to financial power of the other spouse on the condition that the fault of spouse who will be in need after divorce shall not be heavier than other spouse’s fault.”
The court can decide the spousal support (maintenance) to be paid as lump sum or as periodical payments pursuant to the Art. 176 of Turkish Civil Code.
Conditions For Demanding Spousal Support:
– Demand of the one of the spouses: In order to the Court decide spousal support on behalf of one spouse, there must be a demand of that spouse on spousal support. The Court cannot decide a spousal support to be paid on its own motion. The demand on spousal support is not necessarily to be asserted during the divorce case. Spouses can file a case to request spousal support after the divorce case. According to the Art. 178 of Turkish Civil Code, “Rights of action arising from a marriage which is ended as a result of divorce are prescribed at the end of 1 year after the finalization of the divorce verdict.” Pursuant to this article spouses can make claim on spousal support within one year after the finalization of divorce verdict.
– The spouse who asks spousal support from other shall be non-negligent or less negligent. Spousal support is indefinite, it will continue till death.
Spousal support is the secondary consequence of the divorce. The court cannot decide spousal support by itself, request of the spouse is required. The spouse who asks for support shall not have fault in divorce or shall have less fault than other spouse.
If a spouse who asks for support has more fault than other spouse, the court will reject the demand of spousal support even if the spouse asking for support will be in need after the divorce. With the new Turkish Civil Code,
the provision in the second sentence of the first paragraph in the former article of Art. 175, which reads as “However, for the husband to apply for alimony from the wife, the wife must have adequate financial means” has been removed. The women and men are equal in means of spousal support. Therefore with the new Turkish Civil Code, the men who will be in need after divorce can demand spousal support from wife.
-The spouse who asks spousal support from other shall be in need after the divorce. If the spouse will lost the life standard that he/she has during the marriage and will be in poverty can ask spousal support. In reality, losing the life standards that a person has during the marriage is not poverty. However in the court practice, losing the high standards is considered as poverty and the court decide other spouse to pay spouse support. For example, a spouse is not in poverty and works as a modestly-paid secretary but she is married to a rich guy, in case of divorce she can get spousal support according to the court’s practice.
-The amount of demanded spousal support shall be proportionate to other spouse’s financial ability. The spousal support determined by the court in proportion with the ability to pay of the other spouse. The upper limit of the amount of spousal support is the financial condition of other spouse. If the other spouse does not have an ability to pay and he/she is also in poverty the court does not decide spousal support.
Pecuniary and Non-Pecuniary Damages:
According to the Art. 174 of Turkish Civil Code, “The spouse who is not faulty or have less fault and whose current or expected benefits are damaged as a result of divorce may seek an appropriate financial compensation from faulty spouse.
The spouse whose personal rights are violated because of the events that led to divorce, may request the payment of an appropriate amount of money as non pecuniary damages.”
In order to request the pecuniary damages, 1- The current or expected benefits of the spouse who requests pecuniary damages shall be damaged because of the divorce, 2-The spouse who asks for pecuniary damage shall not be faulty or shall have less fault, 3-The other spouse shall be faulty.
If other spouse is not faulty the court cannot decide pecuniary damages. In case of equal fault, the court shall reject the request of pecuniary damages. The court cannot decide pecuniary damages to be paid by itself, request of the spouse is required. The pecuniary damages is secondary consequence of divorce, therefore the final divorce verdict is necessary for deciding pecuniary damages.
In case of one of the spouse requests pecuniary damages, the court will decide by determining the financial conditions and defect rate of the spouses.
In order to the court to decide non-pecuniary damages, 1-The personal rights of a spouse who asks for non-pecuniary damages shall be violated because of the events that led to divorce. 2- The spouse who requests non-pecuniary damages shall not be faulty of shall have less fault. With the new Turkish Civil Code it is not necessary the spouse seeking for non pecuniary damages to be completely faultless. It is enough that the spouse seeking for non pecuniary damages has less fault than other spouse. Insult, violence, infidelity, not to have sexual relations are considered as causes of non pecuniary damages by Supreme Court but the causes are not limited to these written causes.
Legal Department No.2 of the Supreme Court stated in its decision dated 28.01.2009, docket no 2008/19753 and decision no 2009/944 that, “This spouse at least has lost the other spouse’s financial support as a result of the divorce. Therefore the court shall decide an appropriate amount of pecuniary damages on behalf of the wife by determining the social and economical conditions of the parties, the defect rates of the parties and the rule of fairness.” Supreme Court accepts losing a financial support of the other spouse as a cause of pecuniary damages with this decision.
Division of Matrimonial Property:
According to the Art.179 of Turkish Civil Code in case of divorce, “Provisions related to the matrimonial property that the spouses is bound is applied in the division of matrimonial property.”
The rules of matrimonial property between spouses are regulated between Art. 202 and Art. 281 of Turkish Civil Code. If these rules are examined without considering the decisions of Supreme Court, it can be concluded that it is obligatory to divide the matrimonial property in case of divorce. In fact, the decisions of Supreme Court states that the matrimonial property between spouses ends with the decision of divorce, but the Court cannot decide the division of matrimonial property if there is not a case or counter case which is filed with the request of division of matrimonial property.
Legal Department No.8 of the Supreme Court stated in its decision that “In order to the court to decide division of matrimonial property, there must be a lawsuit which is filed by parties and of which costs are deposited.”
The spouse who wants the court to decide the division of matrimonial property, may assert this request with the divorce case but, since the request of division of matrimonial property is not one of secondary consequences of divorce, it may be asserted with an independent case.
If the division of matrimonial property is requested, the Court will apply the division the provisions related the matrimonial property that the spouses is bound with.