Working In Temporary Jobs Does Not Require Removal Of Poverty Alimony
3rd Civil Chamber
Principal Number: 2016/10871
Decision Number: 2017/227
“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 judgement for the partial acceptance of the lawsuit was appealed by the defendant’s attorney within the time limit; after the acceptance of the appeal petition was decided, the papers in the file were read and considered accordingly:
JUDGEMENT OF THE COURT
In his petition, the plaintiff’s attorney stated the parties divorced by agreement with a numbered decision, in the divorce decision, it was decided that his client would pay 300 TL monthly alimony to the plaintiff, the decision was finalised on 10/05/2005, the defendant did not need poverty alimony, his client had no income, he took shelter with his new wife’s family, he made his living with the help of his wife’s family, Stating that the defendant is completely malicious in the demand for the payment of alimony, the defendant has requested and sued for the injunction of the alimony debts, alimony decision, legal enforcement proceedings against his client, the abolition of poverty alimony, and the abolition of the alimony amounts that have been processed and demanded by enforcement proceedings.
The defendant’s attorney, in his reply petition, argued that his client does not have a regular and continuous income, movable and immovable property, that the plaintiff’s family is in good financial condition and means, that they live in a very prosperous life with the financial support of both his own family and his wife’s family, and requested a decision to reject the request for the interim suspension of the proceedings due to the violation of the law and procedure, to reject the request for the removal of the poverty alimony, and to reject the plaintiff’s request for the removal of the processed alimony amounts.
The court decided to partially accept the lawsuit, to remove the monthly poverty alimony of 300,00 TL, which was ruled in favour of the defendant with the Decision No., as of 01/09/2014, and to reject the plaintiff’s requests for the removal of the alimony that has been processed and requested by the enforcement proceedings, and the judgment was appealed by the defendant’s attorney within the period.
The lawsuit is related to the request for the removal of alimony for poverty.
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Pursuant to Article 176/3 of the TCC, the financial compensation or alimony decided to be paid in the form of income shall be automatically cancelled in the event of the remarriage of the creditor party or the death of one of the parties; it shall be cancelled 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.
Pursuant to the above-mentioned provision of the law, the plaintiff requests the cancellation of the alimony claiming that the defendant’s poverty has disappeared. In this case, firstly, the concept of poverty should be emphasised.
As 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 compulsory for the development of the individual’s material existence such as food, clothing, shelter, health, transport, 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. (…07.10.1998 dated 1998/2-656 E, 1998/688 K. 26.12.2001 dated 2001/2-1158-1185 and 01.05.2002 dated 2002/2-397-339). In this case, it should only be taken into consideration as a factor in determining the amount of alimony.
In the examination of the file; according to the social and economic situation researches of the parties; it is understood that the plaintiff is not working, remarried and lives in rent of 500 TL; the defendant started to work as an employee since September 2014 after the lawsuit was filed, received a monthly salary of 1100 TL, and according to his record, he received a monthly salary of around 2300 TL since 2015.
In our concrete case; the job that the defendant started to work after the lawsuit was filed is a job that can be terminated at any time and is not a fixed and secure job. Working in temporary jobs does not require the removal of poverty alimony. Since it is not possible for the defendant to make a living with the alimony in today’s economic conditions, it is imperative for him to get a job and work.
For this reason, it was not deemed correct to decide to accept the case in its entirety without considering the fact that the minimum wage will not eliminate poverty, that the request for lifting also includes the request for reduction, and that this situation will be taken into consideration as a factor in reducing the amount of alimony, and it required a reversal.
In that case, the work to be done by the court should be to decide to reduce the alimony in an appropriate amount in accordance with the principle of equity emphasised in Article 4 of the TMK, taking into account the social and economic situation of the parties and taking into account the balance situation between the parties while assessing the alimony.
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CONCLUSION:
It was decided unanimously on 18.01.2017, without taking into account the above-mentioned principles, and since the appellate objections are appropriate for these reasons, it was decided unanimously on 18.01.2017, with the decision to be closed for the benefit of the defendant in accordance with Article 428 of the Code of Civil Procedure, and the way of decision correction 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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