The Finalization Of The Divorce Ruling Is Mandatory For The Claiming Of Poverty And Participation Alimony Supreme Court Decision
Summary:
Pursuant to Article 443/3 of the Code of Civil Procedure (HUMK), although it is not necessary for the judgment to become final with regard to provisional alimony, it is mandatory for the divorce decree to become final in order to claim alimony for poverty and contribution.
T.C.
Court of Cassation
12th Civil Chamber
Case No: 2011/3369
Decision No: 2011/19386
Date: 17.10.2011
Upon the debtor’s request for an appeal review of the court decision dated and numbered above within the specified time limit, the relevant file was sent from the local court to the chamber, where it was read and the necessary deliberations were made:
Based on the divorce decree of the Gaziosmanpaşa 2nd Family Court dated 09.03.2010 and numbered 2007/1262 Case, 2010/252 Decision, the creditor initiated enforcement proceedings based on the decree, requesting the collection of incidental claims stipulated in the decree, as well as monthly alimony of 300.00 TL, and 250.00 TL in contribution alimony. In the debtor’s application to the enforcement court, it was requested that the ancillary claims be dismissed on the grounds that they cannot be enforced before the divorce becomes final, and that poverty and contribution alimony cannot be claimed before the divorce becomes final.
The judgment on which the enforcement is based states that monthly maintenance payments of 150 TL each for the joint child and the plaintiff shall continue until the decision becomes final, and that upon the decision becoming final, 300.00 TL for poverty and 250.00 TL for participation maintenance shall be awarded.
In this case, only a total of 300.00 TL in monthly provisional alimony can be requested until the divorce ruling becomes final in accordance with the judgment.
Pursuant to Article 443/4 of the Code of Civil Procedure, judgments concerning family and personal law cannot be enforced until they become final. Furthermore, the provisions concerning compensation, attorney’s fees, and litigation costs attached to the divorce decree are also subject to the same rule. However, once the divorce decree becomes final, it is not necessary for the claims for compensation, attorney’s fees, and litigation costs to become final in order for them to be subject to enforcement, provided that their characteristics are taken into account (HGK. 28.2.2001, 2001/12-206E. 2001/217 K.).
Pursuant to Article 443/3 of the Code of Civil Procedure (HUMK), while it is not necessary for the judgment to become final with regard to provisional alimony, it is mandatory for the divorce judgment to become final in order to claim poverty and contribution alimony. With regard to other receivables stipulated in the divorce decree and poverty and contribution alimony, it is necessary to determine whether the decree has become final in terms of divorce and, if so, the date of finalization, by inquiring from the relevant court, and then make a decision based on the outcome. Therefore, it is inappropriate to establish a written judgment based on an incomplete investigation.
CONCLUSION: The debtor’s appeal is accepted, and the court’s decision is REVERSED in accordance with Articles 366 of the Enforcement and Bankruptcy Code and 428 of the Code of Civil Procedure for the reasons stated above. The decision was made unanimously on 10/17/2011.