Summary:
According to Article 443/3 of the Code of Civil Procedure; while finality of the judgment is not required for interim alimony, finality of the divorce decree is mandatory for requesting spousal and child support alimony.
Republic of Turkey
Supreme Court of Appeals
12th Civil Chamber
Case No: 2011/3369
Decision No: 2011/19386
Date of Decision: 17.10.2011
Upon the debtor’s request for appellate review of the court decision dated and numbered above, the file related to this matter was sent from the local court to the chamber, and after being read and considered, the following was decided:
The creditor initiated enforcement proceedings based on the divorce decree of the Gaziosmanpaşa 2nd Family Court dated 09.03.2010, case number 2007/1262, decision number 2010/252, seeking the collection of ancillary claims and monthly alimony of 300.00 TL and child support of 250.00 TL. In the debtor’s application to the enforcement court, it was argued that ancillary claims could not be enforced before the divorce became final, and furthermore, the divorce… It appears that the cancellation of the enforcement proceedings is requested on the grounds that alimony and child support payments cannot be requested before the divorce decree becomes final. The judgment forming the basis of the enforcement proceedings stipulates that monthly interim alimony payments of 150 TL each for the joint child and the plaintiff shall continue until the decision becomes final, and that after the judgment becomes final, 300.00 TL for alimony and 250.00 TL for child support shall be awarded.
In this case, according to the judgment, only a total of 300.00 TL per month in interim alimony can be requested until the divorce decree becomes final.
According to Article 443/4 of the Code of Civil Procedure, judgments concerning family and personal law cannot be subject to enforcement proceedings until they become final. Furthermore, judgments regarding compensation, attorney fees, and court costs, which are ancillary to the divorce decree, are also subject to the same rule. However, once the divorce decree becomes final, it is not necessary for claims for compensation, attorney fees, and court costs to be finalized in order to pursue them, provided their nature is considered (Supreme Court of Appeals, February 28, 2001, 2001/12-206E. 2001/217 K.).
According to Article 443/3 of the Code of Civil Procedure; while the finality of the decree is not required for interim alimony, the finality of the divorce decree is mandatory for claims for spousal and child support alimony. Regarding other claims and spousal and child support alimony stipulated in the divorce decree, it is necessary to determine from the relevant court whether the decree serving as the basis for the claim has become final with respect to the divorce, and if so, the date of finality, before making a decision based on the resulting outcome. Therefore, the judgment rendered in writing based on an incomplete examination is incorrect. CONCLUSION: The debtor’s appeal is accepted, and the court decision is REVERSED for the reasons stated above, in accordance with Articles 366 of the Enforcement and Bankruptcy Law and 428 of the Code of Civil Procedure, by unanimous decision on October 17, 2011.