The reasoning behind the Constitutional Court's decision to annul the provision requiring alimony to be paid to a spouse in poverty without a time limit, as long as the relevant conditions continued after divorce, was published in the Official Gazette. The decision was placed on the agenda of the General Assembly on June 4 following an application by the Antalya 12th Family Court.
Nine-month period for new legislation
The nine-month period prescribed for enacting new legislation on the annulled provision began with the publication of the reasoned decision. The annulled provision allowed a court to award alimony without a time limit, for the benefit of the party who would fall into poverty upon the end of the marital union, to help that party meet living expenses as long as the relevant conditions continued.
The decision stated that the provision imposed an indefinite financial payment obligation on the alimony payer. It said the respective interests of the alimony payer and the spouse who had fallen into poverty must be assessed within the framework of the state's positive obligations arising from Articles 5 and 17 of the Constitution.
Authority to assess the circumstances of the individual case
The Constitutional Court stressed that any new regulations should balance the interests of the parties as far as possible and should not produce disproportionate consequences for either party. It noted that upsetting the reasonable balance between the interests could impose an excessive and extraordinary burden on one of the parties.
The decision stated that, when assessing the state's positive obligation after divorce, the duration of the marriage, the spouses' ages, health conditions, economic and social circumstances, the impact of alimony on life after divorce, and the alimony payer's ability to participate in working life must be taken into account.
It said the alimony payer's lack of fault did not prevent the obligation from arising under the annulled provision. The alimony debt continued unless circumstances arose such as the alimony recipient's remarriage, living in practice as if married without marrying, no longer being in poverty, leading a dishonorable life, or the death of either party.
Assessment of a lifelong obligation
The decision stated that, outside these circumstances, the alimony debt could continue for life. It noted that although the Constitutional Court had stated in an earlier decision that indefinite alimony was not mandatory in every case, the approach that indefinite alimony was mandatory in practice had continued.
It stated that the existing approach did not give judges the authority to determine the duration of alimony for a spouse in poverty based on the circumstances of the individual case or valid reasons. The decision assessed that the practice of treating the restriction of alimony to a specific period as clearly contrary to the law had continued.
It stated that a spouse who was not primarily at fault for the events leading to the divorce could be expected to provide a certain amount of financial support under the obligation of solidarity and assistance arising from the marriage. However, it said that prescribing this obligation categorically and indefinitely without establishing any criteria could impose a heavy burden on the alimony payer, who did not have to be at fault.
Criteria for fixed-term and exceptional indefinite alimony
The Constitutional Court stated that the negative effect of binding the alimony payer to the consequences of the divorce for life, including effects on the payer's psychological, economic and social integrity, could eliminate the reasonable balance that must be established between conflicting rights.
The decision stated that alimony for a spouse in poverty could be limited to a specific period to the extent required by the circumstances, while the period could be extended and lifelong alimony awarded if certain conditions existed. It said this was the result of the state's obligation to establish a fair balance between conflicting rights.
It noted that, under Article 176 of the Turkish Civil Code No. 4721, judges should be authorized to assess factors such as the duration of the marriage, the alimony recipient spouse's age, education and health, and that spouse's ability to meet economic needs through their own means when determining the duration of alimony awarded in the form of periodic payments.
