- Law Office
Base Number: 2016/10871
Decision Number: 2017/227
“Justice Text”
COURT: FAMILY COURT
As a result of the court’s trial of the lawsuit for the abolition of the alimony between the parties, upon the appeal by the defendant’s attorney of the judgment given for the partial acceptance of the case within the time limit; After the decision to accept the appeal petition, the papers in the file were read and the necessary consideration was given:
Y A R G I T A Y A R A R I
In the petition of the plaintiff’s attorney; that the parties got divorced by agreement with the numbered decision, that the client decided to pay 300 TL monthly alimony to the plaintiff in the divorce decision, that the decision became final on 10/05/2005, that the defendant did not need alimony, that the client had no income, that he took shelter with his new wife’s family, that he lived with the help of his wife’s family. stating that the defendant is completely malicious in the request for the payment of alimony, requesting the suspension of the alimony debts, alimony decision, legal enforcement proceedings as a precautionary measure, the abolition of the poverty alimony, the abolition of the alimony amounts that have already been committed and requested by the execution proceeding, and sued.
The defendant’s attorney, in his reply petition, alleges that his client does not have a regular and permanent income, movable and immovable property, the financial situation and means of the plaintiff’s family are good, and that they lead a very prosperous life with the financial support of both his family and his wife’s family, and the proceedings to be suspended as a precaution. demanded the rejection of the request due to the violation of the law and procedure, the rejection of the request for the abolition of the poverty alimony, the rejection of the claimant’s request for the abolition of the processed alimony.
The court decided to partially accept the case, to abolish the monthly 300.00 TL alimony, which was ruled in favor of the defendant with the decision no. appealed by the defendant’s attorney.
Case; related to the request for the abolition of alimony.
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-2nd-
Pursuant to Article 176/3 of the TMK; The pecuniary compensation or alimony decided to be paid in the form of annuity is automatically terminated in the event of the remarriage of the creditor or the death of one of the parties; If the creditor lives as if he is actually married without marriage, his poverty disappears or he leads a dishonorable life, it is abolished by a court decision.
Plaintiff; pursuant to the above law provision; requests the abolition of alimony on the grounds that the defendant’s poverty is destroyed. In this case, first of all, it is necessary to focus on the concept of poverty.
As accepted in the decision of the General Assembly of the Court of Cassation dated 07.10.1998 and numbered 1998/2-656-688, an income sufficient to meet the necessary and necessary expenses in order to improve the individual’s material wealth such as food, clothing, shelter, health, transportation, culture (education). Those who are not should be considered poor.
It should be noted right away that; In the settled decisions of the General Assembly of Law, “having an income at the minimum wage” is not accepted as a fact that makes it impossible to pay alimony, and having an income above the minimum wage is not accepted as a fact that makes it impossible to pay alimony. (… 07.10.1998 day, 1998/2-656 E, 1998/688 K. 26.12.2001 day no. 2001/2-1158-1185 and 01.05.2002 day numbered 2002/2-397-339). In this case, it should only be taken into account 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; the plaintiff did not work, remarried and lived in rent of 500 TL; It has been understood that the defendant started to work as a worker in 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 2300 TL since 2015.
In our concrete case; The job that the defendant started to work after the date of the lawsuit 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 abolition of alimony. Since it is not possible for the defendant to live with the alimony received in today’s economic conditions; It is mandatory to get a job and work.
Because; Without considering the fact that the minimum wage will not eliminate poverty, that the request for abolition also includes the request for reduction, and this situation will be taken into account as a factor in reducing the amount of alimony, the decision to accept the case as a whole was not considered correct and required reversal.
In that case, the work to be done by the court; Considering the social and economic conditions of the parties and considering the balance between the parties while appraising the alimony, in accordance with the principle of equity emphasized in Article 4 of the TMK, alimony is paid in an appropriate amount.
It should be decided to download.
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-3-
CONCLUSION: Written judgment is inaccurate, without considering the principles explained above, and since the appeal objections are valid for these reasons, the verdict is OVERFINED for the benefit of the defendant in accordance with Article 428 of the HUMK. It was decided unanimously on 18.01.2017, with the way of rectification being closed.
