- Law Office
Base Number: 2018/330
Decision Number: 2018/993
“Justice Text”
COURT: FAMILY COURT
As a result of the court’s judgment of the lawsuit for the abolition of the alimony between the parties, upon the appeal by the defendant within the time limit of the verdict given for the acceptance of the case; 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
The plaintiff and the defendant … 2. They divorced with the decision of the Family Court numbered 2009/4 E. 2009/724 K., that a monthly poverty alimony of 150.00 TL was decided in favor of the defendant with the said divorce case, the defendant was paid a salary due to his father who passed away after the divorce case. Claiming that his economic situation has improved due to the immovables inherited due to inheritance, such as the custody of the joint children, all kinds of care and expenses are on him, and the current alimony obligation puts him in financial difficulty, demanding the abolition of the monthly alimony of 150,00 TL and the lawsuit. has done.
The defendant requested that the case be dismissed, stating that the plaintiff’s financial situation was good and that the salary given to him due to his father’s death was not sufficient for his living.
The court decided to accept the case and the verdict was appealed by the defendant.
The case concerns the request for the abolition of the alimony.
176/3 of the Turkish Civil Code. According to the article; The pecuniary compensation or alimony that is 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.
The plaintiff requests the abolition of alimony, alleging an increase in the defendant’s assets and living standards.
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. (HGK.07.10.1998 day, 1998/2-656 M, 1998/688 K. 26.12.2001 day 2001/2-1158-1185 and 01.05.2002 day 2002/2-397-339). however, it should be taken into account as a factor in determining the amount of alimony.
In the concrete case; It is seen that the parties … divorced with the decision of the 2nd Family Court numbered 2009/4 E. 2009/724 K. and 150,00 TL alimony was awarded in favor of the defendant.
It has been understood that the defendant has received an orphan’s pension since 01/05/2010 due to his deceased father, and the amount of payment made to the defendant as of September 2011 consisted of a salary of 239.86 TL and an additional payment of 11.99 TL.
It cannot be expected that the income of the alimony creditor woman will meet the above-mentioned compulsory and necessary expenditures. In other words, the total amount of income received by the defendant is not of the nature to save him from poverty.
Considering the social and economic conditions, needs and expenditures of the parties, finding the wage income of the defendant woman in line with the legal regulations and the Supreme Court Jurisprudence does not necessitate the abolition of the poverty alimony ruled on her. This situation is the reason for the reduction of the poverty alimony. Therefore, the abolition of the alimony for the defendant woman was not found to be fair.
In that case, it will be done by the court; Considering the social and economic conditions of the parties and taking into account the balance between the parties while appraising the alimony, while the amount of alimony should be reduced at a reasonable rate in accordance with the principle of equity emphasized in Article 4 of the TMK, it is wrong to abolish the alimony as a result of the erroneous evaluation of the evidence. required breaking.
CONCLUSION: In this respect, without taking into consideration the principles explained above, it is inaccurate to make a written judgment and for these reasons, the appeal objections are accepted and the judgment is rendered by the HUMK. It was unanimously decided on 13.02.2018 that the appeal fee be returned to the appellant upon request, pursuant to Article 440 of the Law No. 1086, with reference to the temporary article 3 of the CPC no.
