INTERNATIONAL CONGRESS ON AFRO - EURASIAN RESEARCH IV, 27 - 29 April 2018
In this paper, the conditions of post marital spousal support (post marital maintenance or alimony) will be examined in Turkish law doctrine and judicial practice. Considering the fact that the main source of inspiration for the Turkish Civil Law is the Swiss Civil Law, we will refer to the provisions on spousal support and to the recent amendments on the Swiss Civil Code (SCC) to the extent it is relevant.
Spousal support is based on social and ethical considerations. These considerations aim at ensuring the survival of the spouse falling into poverty due to the ending of marriage by divorce. According to Article 175 of the Turkish Civil Code (TCC), "the party falling to poverty due to divorce may demand from the other side indefinite spousal support for living costs, in proportion to his/her financial power and on the condition that the fault of recipient shall not be heavier than the obligor’s fault. It is not necessary for the obligor to be faulty". In this case, according to the Turkish Law, the conditions for claiming spousal support are as follows: 1- Spousal support should be demanded. 2- The spouse who needs spousal support must have fallen to poverty. 3. The party who claims spousal support must be faultless or less faulty than the spousal support obligor. In addition, the Turkish Court of Cassation rules that spousal support may be claimed if both of the divorced spouses who are receiving party and the paying party are equally at fault in divorce. 4- Spousal support to be ordered by court must be proportional to the financial power of the spousal support obligor.
The Turkish Court of Cassation emphasizes the necessity of establishing a balance between the needs of the receiving party and the financial status of the paying party. A spousal support to the receiving party during her/his lifetime without a time limit is a matter of current debate in Turkish Law. The Constitutional Court ruled that the indefinite contribution of spousal support is not contrary to the Turkish Constitution.
On the other hand, according to the Swiss Civil Code, “If a spouse cannot reasonably be expected to provide for his or her own maintenance, including an appropriate level of retirement provision, the other spouse must pay a suitable contribution” (Art.125/I of SCC). So unlike the Turkish Civil Code, Swiss Civil Code doesn’t include the condition that the party who claims spousal support must be faultless or less faulty than the spousal support obligor.
Pursuant to Art.125/II of SCC, “In deciding whether such a contribution is to be made and, if so, in what amount and for how long, the following factors in particular must be considered: 1. the division of duties during the marriage; 2. the duration of the marriage; 3. the standard of living during the marriage; 4. the age and health of the spouses; 5. the income and assets of the spouses; 6. the extent and duration of child care still required of the spouses; 7. the vocational training and career prospects of the spouses and the likely cost of reintegration into working life, 8. expectancy of federal old age and survivor’s insurance benefits and of occupational or other private or state pensions, including the expected proceeds of any division of withdrawal benefits”. Unlike Art.125/II of SCC, the Turkish Civil Code does not include such detailed criteria for being in poverty. These criteria are shaped by the jurisprudence of Turkish Court of Cassation.