Receiving Orphan’s Pension Does Not Prevent A Woman From Receiving Poverty Alimony
3rd Civil Chamber
Principal Number: 2018/330
Decision Number: 2018/993
“Case Law Text”
COURT: FAMILY COURT
As a result of the trial of the lawsuit for the abolition of the poverty alimony between the parties, the judgment given for the acceptance of the lawsuit was appealed by the defendant within the time limit; after it was decided to accept the appeal petition, the papers in the file were read and considered accordingly:
DECISION
The plaintiff stated that he and the defendant were divorced with the decision of … 2nd Family Court numbered 2009/4 E. 2009/724 K. No. 2009/4 E. 2009/724 K., with the divorce case in question, a monthly poverty alimony of 150,00 TL was ruled in favor of the defendant, the defendant received a salary due to his father who died after the divorce case, and his economic situation improved due to the immovable properties left to him due to inheritance, the custody of the joint children, all kinds of care and expenses are on him, and the current alimony obligation has put him in a financially difficult situation, and requested and sued for a decision to remove the monthly poverty alimony of 150,00 TL.
The defendant stated that the financial situation of the plaintiff was good, and that the pension granted to him after the death of his father was not sufficient for his subsistence, and requested a decision to dismiss the lawsuit.
The court decided to accept the lawsuit and the judgment was appealed by the defendant.
The lawsuit is related to the request for the removal of poverty alimony.
According to Article 176/3 of the Turkish Civil Code, the material compensation or alimony decided to be paid in the form of income shall be lifted automatically in the event of the remarriage of the creditor party or the death of one of the parties; it shall be lifted by a court decision in the event that the creditor party lives as if he/she is actually married without marriage, his/her poverty disappears or he/she leads a life without dignity.
The plaintiff requests the removal of the alimony claiming that the defendant’s assets and living standards have increased.
As it is accepted in the decision of the General Assembly of Civil Chambers of the Court of Cassation dated 07.10.1998 and numbered 1998/2-656-688, those who do not have enough income to meet the expenses deemed necessary and obligatory for the development of the individual’s material existence such as food, clothing, shelter, health, transportation, culture (education) should be considered poor.
It should be noted immediately that; in the established decisions of the General Assembly of Civil Chambers, “having an income at the level of minimum wage” is not accepted as a fact that makes it impossible to grant poverty alimony, and having an income above the minimum wage is not accepted as a fact that makes it impossible to grant poverty alimony. (HGK.07 .10.1998, 1998/2-656 E, 1998/688 K. 26.12.2001, 2001/2-1158-1185 numbered and 01.05.2002, 2002/2-397-339 numbered decisions).
In the concrete case; it is seen that the parties divorced with the decision of the … 2nd Family Court numbered 2009/4 E. 2009/724 K. and 150,00 TL poverty alimony was ruled in favor of the defendant.
It is understood that the defendant has been receiving an orphan pension since 01/05/2010 due to her deceased father and the amount of payment made to the defendant as of September 2011 consists of a salary of 239,86 TL and an additional payment of 11,99 TL.
It cannot be expected that the income earned by the alimony creditor woman will cover the mandatory and necessary expenses mentioned above. In other words, the total amount of income received by the defendant is not sufficient to save her from poverty.
Considering the social and economic status, needs and expenditures of the parties, in line with the legal regulations and the case law of the Court of Cassation, the fact that the defendant woman has a salary income does not require the removal of the poverty alimony awarded to her. This is a reason for the reduction of the alimony. For this reason, the removal of the poverty alimony for the defendant woman was not found to be in accordance with equity.
In that case, the court should consider the social and economic situation of the parties and the alimony should be reduced at a reasonable rate in accordance with the principle of equity emphasized in Article 4 of the TMK, taking into account the balance situation between the parties while evaluating the alimony, but it is erroneous to remove the poverty alimony as a result of the misevaluation of the evidence, and this issue required a reversal.
CONCLUSION:
In this respect, it is inappropriate to establish a written judgment without taking into account the principles explained above, and for these reasons, it was unanimously decided on 13.02.2018, with the acceptance of the appellate objections that are appropriate for these reasons, that the judgment be DISMISSED in accordance with Article 428 of the Code of Civil Procedure and that the prepaid appeal fee be returned to the appellant upon request, with the way of decision correction closed in accordance with Article 440 of the Code of Civil Procedure No. 1086 with reference to the provisional article 3 of the Code of Civil Procedure No. 6100.
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