Rejection Of A Spousal Support Claim By A Common-Law Spouse
Republic of Turkey
COURT OF CASSATION 3rd Civil Chamber Case No. :2016/12465
Decision No. :2017/2439
Date of Decision : March 2, 2017
SUPREME COURT DECISION
COURT: FAMILY COURT
Following the trial conducted by the court regarding the case for provisional alimony between the parties, the judgment
granting the claim in part was appealed by the defendant within the prescribed time limit;
after the appeal petition was accepted, the documents in the file were reviewed
and the necessary considerations were made:
SUPREME COURT DECISION
The plaintiff, in the complaint, summarized that she has been legally married to the defendant for 15 years, that the defendant
has physically abused her, that there are criminal cases against the defendant, that the defendant is currently living with another woman,
that he has failed to provide for her and the household’s needs, and for these reasons, she has filed a claim and requested
.
In his statement during the hearing, the defendant argued that he has been living separately from the plaintiff for approximately one year with a woman named Zeynep,
that there is no legal marriage between him and the plaintiff, that they lived as husband and wife
from 2004 to 2014, and that he is not in a position to pay alimony; he requested that the case be dismissed.
The court, partially granting the claim, ruled that considering the parties had lived as husband and wife for 10 years
and that the defendant subsequently lived with another woman; the court ordered that
provisional alimony of 200.00 TL per month be collected from the defendant and paid to the plaintiff
as of the date of the lawsuit, and dismissed the claim for any additional amount; the judgment was appealed by the defendant within the prescribed time limit.
The case concerns a claim for provisional alimony.
Article 195 of the Turkish Civil Code states: “In the event of failure to fulfill obligations arising from the marital union or a dispute regarding a significant matter pertaining to the marital
union, the spouses may separately or jointly request the intervention of the judge…. The court, if necessary, shall take the measures provided for by law
upon the request of one of the spouses.” Article 197 of the same law also states: “A spouse has the right to live separately
as long as their personality, economic security, or the family’s peace is seriously endangered
due to the joint life.
If the suspension of cohabitation is based on a valid reason, the judge, upon the request of one of the spouses,
shall take measures regarding the financial contribution one spouse is to make to the other, the use of the residence and household goods, and the management of the spouses’
property…”
Based on the case file, it is understood that the parties lived together for a period under an informal marriage and subsequently
separated. The maintenance measures provided for in Articles 197 and following of the Turkish Civil Code are institutions
established for legally married spouses; since the plaintiff is the defendant’s informal spouse,
; therefore, the claim for alimony regarding the common-law spouse should have been entirely rejected; however, the court,
citing that the plaintiff and defendant lived as husband and wife for 10 years without a formal marriage and that the defendant later
lived with another woman, rendered a judgment partially granting the claim, which is contrary to procedure and law
and warrants reversal.
CONCLUSION: The issuance of the judgment as written, without considering the principles outlined above, is erroneous;
since the appeals are well-founded for these reasons, the judgment is hereby SET ASIDE pursuant to Article 428 of the Code of Civil Procedure (HUMK),
and the advance appeal fee shall be refunded to the appellant upon request. Pursuant to Transitional Article 3 of the Code of Civil Procedure No. 6100
and Article 440 of the Code of Civil Procedure No. 1086, as referred to in Transitional Article 3 of the Code of Civil Procedure No. 6100,
the avenue for correction of the decision is closed; the decision was rendered unanimously on March 2, 2017.