Special Jurisdiction Rule For Alimony Cases Supreme Court Decision
Republic of Turkey
COURT OF CASSATION
12th Civil Chamber
Case No.: 2016/26097
Decision No.: 2018/333
Date of Decision: 18.01.2018
COURT OF CASSATION DECISION
COURT: Enforcement Court
Upon the creditor’s request for an appeal review of the court decision dated and numbered above within the specified time limit, the relevant case file was sent to the chamber from the local court. After hearing the report prepared by the Review Judge … for the case file and reading and examining all the documents in the file, the matter was discussed and considered:
The creditor, … 2nd Civil Court of First Instance, in the divorce case numbered 2010/567, filed a claim for the payment of alimony.
Based on the interim decision on maintenance issued in the file of the … 2nd Civil Court of First Instance, case no. 2010/567, concerning divorce, , based on the interim decision on maintenance awarded in the case, initiated general seizure proceedings without a court order.
Upon notification of the payment order (Form 7), the debtor applied to the enforcement office within the legal time limit, objecting to the debt and claiming that the competent enforcement office was the one in … Execution Office
and also objected to the jurisdiction of the … Execution Offices. The creditor then applied to the execution court
requesting that the debtor’s objections be lifted. The court ruled that the interim decision on provisional alimony, which was the basis for the enforcement, was not a judgment and could not be considered a document of a judgment nature pursuant to Article 38 of the Enforcement and Bankruptcy Code and therefore cannot be considered a document of a judgment nature, the court ruled that the debtor’s objection to jurisdiction was valid
and rejected the creditor’s request to lift the objection.
Article 177 of the Turkish Civil Code states that “In alimony cases filed after divorce, the court of the alimony creditor’s place of residence has jurisdiction.” This establishes a special rule of optional jurisdiction for alimony cases, and alimony proceedings may be pursued at the creditor’s place of residence as well as the debtor’s place of residence.
Therefore, the court should have examined the grounds for lifting the creditor’s other objections after accepting the request to lift the objection to jurisdiction and rendered a decision based on the outcome.
The ruling to dismiss the case based on the written grounds is incorrect.
CONCLUSION: The creditor’s appeal objections are accepted, and the court’s decision is reversed for the reasons stated above pursuant to Articles 366 of the Enforcement and Bankruptcy Law and 428 of the Code of Civil Procedure, the advance fee shall be refunded upon request, and the right to appeal the decision within 10 days from the date of notification of the judgment is reserved.
It was unanimously decided on 01.18.2018.