Republic of Turkey
Supreme Court of Appeals, 3rd Civil Chamber, Case No: 2016/12465
Decision No: 2017/2439
Decision Date: 02.03.2017
Supreme Court of Appeals Decision
COURT: FAMILY COURT
Following the trial conducted by the court in the interim alimony case between the parties, the judgment given in favor of the partial acceptance of the case was appealed by the defendant within the time limit;
after the decision to accept the appeal petition was made, the documents in the file were read and
considered:
SUPREME COURT OF APPEALS DECISION
The plaintiff, in the petition, summarized as follows; The plaintiff stated that she and the defendant had been officially married for 15 years, that the defendant had assaulted her, that the defendant had criminal cases against him, that the defendant was currently living with another woman, that he did not provide for her and the household’s needs, and therefore requested and sued for a decision ordering a monthly interim alimony of 300.00 TL. The defendant, in his statement at the hearing, argued that he had been living with a woman named Zeynep, separated from the plaintiff, for about a year, that there was no official marriage between them, that they had lived as husband and wife from 2004 to 2014, and that he was not in a position to pay alimony, and requested the dismissal of the case. The court partially accepted the case, taking into consideration that the parties had lived as husband and wife for 10 years without an official marriage and that the defendant subsequently lived with another woman; The court ruled that the defendant should pay the plaintiff a provisional alimony of 200.00 TL per month, starting from the date of the lawsuit, and rejected the claim for more; the judgment was appealed by the defendant within the prescribed time. The lawsuit concerns a request for provisional alimony. Article 195 of the Turkish Civil Code states: “In case of failure to fulfill the obligations arising from the marriage union or in case of disagreement on an important matter related to the marriage union, the spouses may separately or jointly request the intervention of the judge… The judge shall, if necessary, take the measures foreseen in the law upon the request of one of the spouses.” Article 197 of the same law also states: “One of the spouses has the right to live separately if their personality, economic security, or the peace of the family is seriously endangered due to the common life. If the interruption of cohabitation is based on a justifiable reason, the judge, upon the request of one of the spouses, shall take measures regarding the monetary contribution one spouse will make to the other, the use of the dwelling and household goods, and the management of the spouses’ property…” These regulations are included. According to the case file, it is understood that the parties lived together for a while with an informal marriage and then separated. The provisional alimony stipulated in Articles 197 and subsequent articles of the Turkish Civil Code is an institution accepted for the officially married spouse, and it is understood that the plaintiff is the defendant’s informally married spouse; therefore, the alimony request should be rejected entirely for the informal spouse; The court’s decision to partially accept the claim on the grounds that the plaintiff and the defendant lived together as husband and wife for 10 years without a formal marriage and that the defendant later lived with another woman is contrary to procedure and law and necessitates reversal.
CONCLUSION: The judgment rendered in writing without considering the principles explained above is incorrect, and the appeals are therefore justified and accepted. The judgment is REVERSED in accordance with Article 428 of the Code of Civil Procedure, and the advance appeal fee shall be returned to the appellant upon request. In accordance with Article 440 of the Code of Civil Procedure No. 1086, by reference to Temporary Article 3 of the Code of Civil Procedure No. 6100, the possibility of requesting a correction of the decision is closed. The decision was made unanimously on 02.03.2017.