What is Child Support in Turkish Law and What Are Its Conditions?

CHILD SUPPORT (PARTICIPATION ALIMONY)

Child support, also known as participation alimony, is the contribution made by the parent who does not have custody to the parent who has custody for the expenses related to the child’s care and education according to their financial capacity. In addition to child support, other types of alimony mentioned in the Turkish Civil Code are maintenance, poverty, and assistance alimony.

Among the other types of alimony; maintenance alimony is the type of alimony awarded during the divorce proceedings. Poverty alimony is the alimony paid once the divorce is finalized. Assistance alimony is the alimony paid by a family member who has the economic means to support a family member in need to maintain their life. Child support is the contribution made by the parent who does not have custody to the parent who has custody for the expenses related to the child’s care and education according to their financial capacity.

Article 182/II of the Turkish Civil Code states:

The parent who is not given custody is obliged to contribute to the expenses of the child’s care and education according to their capacity.

Article 327 of the Turkish Civil Code also states that the expenses necessary for the child’s care, education, and protection are covered by both parents. Child support is based on these two articles.

HOW IS CHILD SUPPORT DETERMINED?

According to Article 330 of the Turkish Civil Code, the amount of alimony is determined by taking into account the needs of the child and the living conditions and payment capacities of the parents. The child’s income is also taken into consideration when determining the amount of alimony.

The law does not specify how child support should be calculated. However, it mentions the principles to be considered in determining the alimony, as well as the factors that may affect its reduction.

Article 330/III of the Turkish Civil Code states that the judge, upon request, can decide the amount of alimony to be paid in the future according to the social and economic conditions of the parties in the coming years.

Additionally, according to Article 331 of the Turkish Civil Code, in case of a change in circumstances, the judge may, upon request, re-determine the amount of alimony or terminate it.

The question of whether child support is determined at the request of the parties or by the judge ex officio should be evaluated in terms of the best interests of the child. In some decisions of the Supreme Court and in the doctrine, it is stated that child support is not dependent on the requests of the parties. The judge can rule on alimony ex officio. Accordingly, the judge determines the amount of alimony. When determining the amount of alimony, the judge takes into account the economic and social conditions of the alimony obligor as specified in the law.

Even if the parties specify an amount for child support, the judge will determine the amount using their discretion. Since child support is aimed at the protection of children and is related to public order, the judge must decide on child support even if there is no request from the parties.

HOW IS THE INCREASE IN CHILD SUPPORT DETERMINED?

The amount of alimony awarded during or separately from the divorce case does not constitute a final judgment. It is possible to increase the amount of alimony according to the changing conditions of the alimony obligor.

The judge can specify in the decision that the alimony will be increased annually according to the TEFE/TÜFE, DİE, Foreign Exchange Rate, and Gold Prices indices, thereby determining the amount of alimony to be paid in subsequent years. If the judge has not determined the amount of alimony to be paid in the future or if the conditions have changed, the alimony creditor or the alimony debtor can file an alimony adjustment case.

For an alimony increase case to be filed, there must be previously awarded alimony. Subsequently, the person requesting the alimony increase must provide justified reasons for this request. The judge will consider the increase in the needs of the alimony creditor, the inability of the current alimony to cover expenses, and the significant increase in the economic power of the alimony debtor. These reasons vary from person to person and situation to situation, and the judge has discretion in evaluating the validity of these reasons. The judge will evaluate the presented reasons according to the material and social conditions of the parties, the economic conditions of the time, and the purchasing power of money.

CONDITIONS OF CHILD SUPPORT

For child support to exist, a divorce decree must be present. Child support starts on the date the divorce decree becomes final. If child support is requested with a separate case after the divorce decree becomes final, it will be awarded retroactively from the date of the lawsuit.

The existence of child support depends on the child being a minor. According to Article 328 of the Turkish Civil Code, child support continues until the child reaches the age of 18, gets married, or is declared an adult by a court decision according to Article 12 of the Turkish Civil Code. However, if the child can support themselves with the profession or trade they have acquired or if it is possible for them to support themselves with the acquired profession or trade, child support can be terminated upon the request of the obligor before the child reaches adulthood.

If the child is still continuing their education after reaching adulthood, as a rule, the parents are obliged to support the child until the end of their education according to their circumstances and conditions. Since child support can only be awarded for a minor child, the child who is no longer a minor will not be able to receive child support. In this case, child support for an adult child turns into maintenance alimony.

THE COMPETENT COURT FOR CHILD SUPPORT

According to Article 329 of the Turkish Civil Code, a child support case can be filed by the parent who is actually taking care of the child, the guardian appointed for the child, the trustee, and the child who has the capacity to distinguish (the power of discernment).

Child support can be requested either during the divorce case or after the divorce case is finalized. In both cases, the Family Court established by Law No. 4787 is competent to hear child support cases. In the absence of a Family Court, these cases will be heard and decided by the Civil Court of First Instance acting as a Family Court.

According to Article 168 of the Turkish Civil Code, the competent court for divorce cases is the court of the place of residence of one of the spouses or the court of the place where they last lived together for at least six months before the lawsuit.

If child support is requested separately from the divorce case, the competent court is the court of the place of residence of one of the parties according to Article 365 of the Turkish Civil Code.

WHAT HAPPENS IF CHILD SUPPORT IS NOT PAID?

In cases where child support is not paid, it can be collected through compulsory enforcement. Some measures have been introduced to ensure collection.

Alimony claims are listed among the first-order claims in the order of priority of receivables according to the Enforcement and Bankruptcy Law. Therefore, in case of the sale of the movable or immovable property of the alimony debtor through enforcement, the alimony claim is paid first from the sale proceeds.

The retirement pension of the alimony debtor can be garnished for the collection of alimony claims, and the entire amount of monthly alimony can be deducted from the pension. Even if there are previous garnishments on the pension, the amount of monthly alimony is deducted from the pension independently of the previous garnishments.

Apart from compulsory enforcement, the alimony debtor can be sentenced to coercive imprisonment for up to 3 months according to Article 344 of the Enforcement and Bankruptcy Law if other conditions are also met, upon the complaint of the alimony creditor.

STATUTE OF LIMITATIONS FOR CHILD SUPPORT

Although there is no specific statute of limitations for child support in the law, according to Article 156/2 of the Code of Obligations No. 6098, if the debt has been acknowledged by a document or has been determined by a court or arbitration decision, the new period is always ten years.

Many people believe that the statute of limitations will apply to alimony if no follow-up has been initiated based on this article. However, the Supreme Court decision states that alimony decisions are not like decisions that establish the existence of a debt or a right, but that alimony claims will accrue in the debtor’s assets over time. Accordingly, it is accepted that alimony claims that accrued more than ten years before the follow-up date are barred by the statute of limitations.

In this case, it is understood that ten years’ worth of alimony can be claimed retrospectively from the follow-up date until the children reach the age of majority. If the follow-up of the divorce case and child support finalized on 01.02.2013 is initiated on or before 01.02.2023, all past alimony claims can be claimed retroactively, taking into account that the children have reached the age of majority.

For more help or consultation on this topic, please contact us.

 

 
“`