Family law is an important branch of law that deals with legal issues concerning family matters, which are the fundamental building blocks of society. Two of the most frequently encountered and controversial issues in this field are alimony and custody, which arise as outcomes of divorce cases. In this article, we will examine the legal framework, processes, and societal impacts of alimony and custody cases in detail.
Alimony refers to the financial obligations of family members towards each other. The primary purpose of alimony is to provide financial assistance to one party by the other, ensuring their livelihood and preventing economic hardship. Therefore, alimony is not just a financial obligation but also a tool that contributes to the achievement of social justice.
Types of Alimony in Turkish Law
Alimony varies based on different conditions and demands. The Turkish Civil Code regulates four basic types of alimony:
- Precautionary Alimony:
- Paid to prevent the parties from becoming financially insecure during the divorce process.
- It is temporary in nature; it either ends when the case is concluded or is converted into another type of alimony.
- This type of alimony can be requested for both spouses and children. For example, if one spouse is unemployed, precautionary alimony can be granted temporarily to maintain their standard of living. The amount is determined based on the parties' current income, economic obligations, and living standards. For example, a certain temporary amount of alimony can be decided to meet the basic needs of a non-working spouse and a young child.
- Poverty Alimony:
- Paid to the spouse who risks falling into poverty after divorce.
- It is indefinite but can be terminated under certain conditions. For instance, if the alimony recipient remarries or their financial condition improves, poverty alimony may be terminated.
- In this type of alimony, the requesting spouse must not be significantly at fault. Moreover, the economic situation of the requesting party and the payment capacity of the alimony payer are considered. For example, a spouse who is unable to work and has no regular income may be granted a certain amount of poverty alimony based on the income of the other party.
- Child Support Alimony:
- Granted to cover the costs of child care, education, and health after divorce.
- The court determines the amount based on the child's age, education costs, and living standards.
- The child's best interests are prioritized in this type of alimony. As the child's needs grow, the amount of alimony may be reassessed. For example, if the child's school expenses increase or if special education is required, the court may increase the alimony amount to account for these costs.
- Support Alimony:
- Paid to upper or lower family members (such as parents or children) or siblings to prevent poverty.
- This type of alimony is not directly related to the marriage. For example, support alimony can be requested for a parent in financial difficulty.
- The purpose of support alimony is generally to provide financial assistance among family members to prevent poverty.
Factors Considered in Determining the Amount of Alimony
When determining the amount of alimony, courts consider various factors:
- Economic Situation of the Requesting Party: The income status, living standards, and dependency level of the requesting party are evaluated.
- Financial Capacity of the Alimony Payer: The income sources, movable and immovable property, and payment capacity of the party required to pay alimony are examined.
- Children's Needs: In child support alimony cases, the child's education expenses, health costs, and social activities are considered.
- Social and Economic Standards of the Parties: If there is a significant difference in the living standards of the spouses, the court considers this when determining the alimony amount.
- Fault Situation: In poverty alimony, the requesting party should not be significantly at fault in the divorce.
Increase and Decrease of Alimony
Alimony amounts can be increased, decreased, or terminated depending on changes in economic conditions or the parties' living standards.
- Increase: If the alimony recipient's expenses have increased or if the alimony payer's income has risen, the court may increase the alimony amount. For example, if the child's school expenses rise, a new health issue arises, or living expenses increase, a request for alimony increase can be made.
- Decrease and Termination: If the alimony recipient's economic condition has improved, their income has increased, or if the alimony payer's financial situation worsens, the court may reduce the alimony amount. Situations like bankruptcy, income loss, or long-term unemployment may lead to requests for alimony reduction.
Custody Cases: The Best Interest of the Child Principle
Custody is defined in the Turkish Civil Code as the rights to care, education, and representation of a minor child. Until the child reaches adulthood, both parents are responsible for meeting the child's needs and protecting their rights. Therefore, custody is not only a right but also a significant responsibility. Articles 335 and onward of the Turkish Civil Code provide detailed regulations on the scope and application of custody. While custody is usually shared by both parents during the marriage, the court decides which parent will have custody after the divorce. Additionally, custody of children born outside of marriage generally belongs to the mother, although it may be transferred to the father under certain circumstances.
Custody cases typically arise during the divorce process or in cases involving children born outside of marriage.
Key Principle in Custody Decisions: The Best Interest of the Child
The core principle in custody decisions is the best interest of the child. This principle aims to best support the child's physical, mental, and emotional development. Regardless of which parent obtains custody, the court prioritizes the child's welfare. Factors such as the child's education needs, health, age, social environment, and emotional connections are assessed. The relationship between the child and both parents is also critical. Especially for young children, the mother is often given custody based on the argument that they need more maternal care. However, each case is evaluated according to its specific circumstances.
Factors Considered in Custody Decisions
- Child's Age and Developmental Level: Young children, particularly those between the ages of 0-3, generally require more maternal care. As the child grows older, decisions are made based on their physical and emotional needs.
- Parents' Socioeconomic Status: The capacity of each parent to meet the child's needs is evaluated, including their income, education level, and job stability.
- Child's Opinion: The opinion of children with sufficient cognitive ability, especially those over 8 years old, may be considered by the court.
- Parents' Health and Behavior: The psychological and physical health of the parents can affect custody. For instance, if a parent has serious health issues or engages in behavior that may harm the child, this could influence the custody decision.
Scope and Limits of Custody Rights
Custody includes the right to regulate both the daily life and long-term decisions of the child. This includes selecting educational institutions, making decisions about health care, and participation in social activities. However, custody does not give parents unlimited authority. Actions like taking the child abroad or engaging in behavior that harms the child's education without the court's decision can be considered as misuse of custody rights and may have legal consequences. Also, if the custodial parent obstructs the child's relationship with the other parent, it may become a subject of legal action.
Legal Process in Alimony Cases
Alimony cases follow a specific legal process, starting with the preparation and submission of the petition to the court. This is followed by the opposing party's response, collection and examination of evidence, hearings, and the final court decision. If necessary, an appeal process may also take place. The economic status, living standards, and needs of the parties are considered when determining the alimony amount.
Process in Custody Cases
Custody cases require special sensitivity because they directly affect the child's future. The general process begins with the filing of the lawsuit. This is followed by social investigation reports, hearings with the child and parents, and expert opinions. Finally, the court issues a decision, and if needed, an appeal process can be initiated. In custody decisions, factors such as the child's education, health, emotional development, and safety are considered.
Common Issues in Alimony and Custody Cases
Common problems encountered in alimony and custody cases include:
- Irregular payment of alimony
- Disagreements over the amount of alimony
- Non-compliance with custody decisions
- Obstruction of the child's contact with the other parent
Psychological Effects of Alimony and Custody Cases
Alimony and custody cases are not only legal processes but also have psychological aspects. The effects, especially on children, can be long-lasting. Therefore, receiving support from child psychology experts, using mediation and reconciliation methods, and encouraging cooperation between parents for the child's well-being can help minimize the negative impacts of the process.
International Law in Alimony and Custody Cases
With the rise of international marriages and migration, alimony and custody cases have gained an international dimension. In this context, international legal sources such as the Hague Conventions, European Union regulations, and bilateral agreements play an essential role in resolving cross-border disputes. These regulations contribute to ensuring harmony between the legal systems of different countries and facilitate the resolution of international cases. These regulations, to which Turkey is also a party, ensure that custody cases are handled across national borders.
Originally published 18 April 2025
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
