MATERIAL AND MORAL COMPENSATION IN DIVORCE
A divorce case severs the marital bond between the parties, leaving behind significant financial ruin and shattered personal lives. To protect the spouse whose existing or expected interests are harmed or whose personal rights are violated due to the divorce, the legislator has regulated the institutions of material and moral compensation in Article 174 of the Turkish Civil Code.
The acceptance of compensation claims and the determination of their amounts depend entirely on the degree of fault of the parties in the events leading to the divorce. In this first section, we will examine the legal conditions for compensation, the balance of fault, and the Supreme Court’s criteria for calculating compensation.
1.1. Conditions for Material Compensation (Turkish Civil Code Article 174/1)
According to Turkish Civil Code Article 174/1; the innocent or less culpable spouse whose existing or expected interests are harmed due to the divorce may demand appropriate material compensation from the other spouse who is at fault. For monetary compensation to be awarded, the following four conditions must be met simultaneously:
Four Essential Conditions for Monetary Compensation:
├── 1. Divorce Decree ───────> There must be a final and binding divorce decree issued by the court.
├── 2. Balance of Fault ────────> The plaintiff must be blameless or less at fault than the defendant.
├── 3. Damage to Interest ──> Loss of existing (loss of support) or expected (inheritance right) benefit.
└── 4. Causal Link ─────────> The damage suffered must directly stem from the divorce itself.
What are Existing and Expected Benefits? Existing benefits include the economic support (housing, livelihood, social security) that the spouse would have provided if the marriage had continued. Expected benefits include legal inheritance rights or the right to benefit from the spouse’s insurance in the event of the spouse’s death. These are lost with divorce.
Equal Fault Barrier: If the court finds both parties equally at fault for the dissolution of the marriage, both parties’ claims for material compensation are rejected.
1.2. Conditions for Non-Pecuniary Damages (Turkish Civil Code Article 174/2)
The party whose personal rights have been violated due to the events causing the divorce may request an appropriate amount of money as non-pecuniary damages from the other party who is at fault.
Violation of Personal Rights: In Supreme Court precedents; Actions such as physically abusing a spouse, infidelity (adultery), making serious public insults, accusing a spouse of theft/immorality, spreading unfounded rumors, or locking a spouse in the house constitute serious attacks on personal rights and necessitate compensation for non-pecuniary damages.
Fault Requirement: As with pecuniary damages, it is a condition that the spouse claiming non-pecuniary damages must be less at fault or faultless compared to the other spouse. In cases of equal fault, non-pecuniary damages cannot be awarded.
1.3. Determination of Compensation Amounts and Method of Payment (Turkish Civil Code Article 176)
The legislator has not established a fixed tariff for compensation amounts. The judge determines the amount of compensation according to the specifics of each concrete case.
Calculation Criteria: When determining the amount, the judge considers the economic and social conditions of the parties (sed report), the severity of the fault ratios, the nature of the violated right, the purchasing power of money, and the economic realities of the country. Compensation should not be a means of enrichment, nor should it plunge the paying party into destitution.
Method of Payment: According to Article 176/1 of the Turkish Civil Code, material compensation may be awarded in a lump sum (one-time payment) or in installments (regular monthly payments). However, moral compensation cannot be awarded in installments; it must always be paid in a lump sum. I proved my spouse cheated on me. How much material and moral compensation can I receive?
There is no legal upper or lower limit for compensation amounts. The court examines the severity of your spouse’s fault (adultery is among the most serious faults) and both of your monthly incomes and registered assets. Against the spouse with a higher income who is at fault, a fair amount is awarded that protects the socio-economic situation of the aggrieved spouse and covers their depreciation.
We were found equally at fault in the divorce case, can I receive compensation?
No. According to the established jurisprudence of the Supreme Court of Appeals, if both parties are deemed equally at fault in the events leading to the divorce, the claims for material and moral compensation from both parties will be rejected. To receive compensation, the other party must be “more at fault” than you.
I forgot to request compensation during the divorce proceedings; can I file a lawsuit later?
Yes, you can. According to Article 178 of the Turkish Civil Code, the right to sue arising from the termination of marriage due to divorce is subject to a one-year statute of limitations from the date the divorce decree becomes final. If you did not request it during the divorce proceedings, you can file a separate lawsuit for compensation within one year of the finalization date.
TYPES OF ALIMONY IN DIVORCE: INTERIM, POVERTY, AND CHILD SUPPORT
To prevent the parties and their children from suffering economically during and after the divorce process, the Turkish Civil Code provides for alimony regimes that protect the party with weaker financial means. In practice, alimony covers the entire process from the filing of the lawsuit to its finalization and beyond.It appears in three different forms.
In this section, we will examine the legal requirements for interim alimony, which begins with the filing of the lawsuit, post-divorce alimony, and child support payments for the care of the child.
2.1. A Temporary Measure: Interim Alimony (Turkish Civil Code Article 169)
The right of spouses to live separately arises from the moment a divorce lawsuit is filed. According to Article 169 of the Turkish Civil Code, the judge is obliged to take temporary measures ex officio (on their own initiative) during the continuation of the lawsuit, especially regarding the spouses’ housing, livelihood, and the care and protection of the children.
No Fault Requirement: Interim alimony is not a penalty or compensation; it is entirely a social and economic protection measure. Therefore, regardless of whether the parties are at fault at the beginning of the lawsuit, interim alimony is awarded in favor of the spouse who is at risk of being in an unfair situation and who has no/insufficient income, and in favor of the joint child. Process: It begins from the date the lawsuit is filed and continues until the date the divorce decree becomes final. When the decree becomes final, the interim alimony automatically ends and (if the conditions are met) transforms into child support or maintenance alimony.
2.2. Indefinite Support: Child Support (Turkish Civil Code Article 175)
The party who will fall into poverty due to divorce, provided that their fault is not more severe than the other party’s, may request alimony from the other party indefinitely, in proportion to their financial capacity, for their livelihood.
Basic Conditions for Child Support:
├── 1. Request Must Be Made ──────────> The judge cannot award child support ex officio; a request is absolutely necessary.
├── 2. Falling into Poverty ──────> Being unable to meet minimum subsistence requirements due to divorce.
├── 3. Balance of Fault ─────────> The fault of the party requesting alimony should not be “more serious” than that of the other party.
└── 4. Proportionality to Financial Capacity ─────> The amount should not exceed the economic situation of the alimony obligor.
“Indefinite” Clause and Termination (Turkish Civil Code Article 176): Although regulated as “indefinite” in the law, alimony for poverty may terminate automatically or by court order in some cases. Alimony automatically terminates if the recipient remarries or if one of the parties dies. The court may terminate the child support if the recipient lives as if married without actually being married, if their poverty is eliminated, or if they lead a dishonorable life.
2.3. Child’s Future: Child Support (Turkish Civil Code Article 182/2)
The spouse who is not granted custody when a divorce decree is issued is obligated to contribute to the child’s care and education expenses in proportion to their financial capacity. This is called “child support.”
It is a matter of public order: Since child support protects the best interests of the child, it is ordered ex officio (automatically) by the judge even if the mother or father has not requested it. Even if the party granted custody says “I don’t want alimony,” a complete waiver of this right on behalf of the child may be considered legally invalid. Duration: It continues until the child reaches the age of majority (until they turn 18). However, if the child continues their education (university, etc.) after reaching the age of majority, child support ends, and the child themselves can continue their education according to Turkish Civil Code Article 182/2. You can request continued support by filing a “Support Alimony” lawsuit under Article 364. Can a working woman receive alimony?
Yes, she can. A woman’s employment alone does not prevent her from receiving alimony. If the woman’s income is at the minimum wage level and her standard of living will drop significantly below the standard of marriage due to divorce, and the husband’s financial situation is very high, the Supreme Court accepts the awarding of alimony to the woman. The important criterion is “falling into poverty.”
Does the alimony amount automatically increase every year?
It increases if explicitly stated in the decision. Upon the request of the parties, the judge can decide on the percentage increase in alimony amounts in future years (e.g., based on the Producer Price Index (PPI), Consumer Price Index (CPI), or a fixed 20%). If there is no such increase clause in the decision, a separate “Alimony Increase Lawsuit” must be filed each year to increase the alimony.
My ex-spouse isn’t paying alimony, what can I do?
Alimony debt is legally a priority debt. Enforcement proceedings can be initiated for unpaid alimony. Furthermore, according to Article 344 of the Enforcement and Bankruptcy Law, a complaint can be filed against the debtor who fails to pay alimony in the Enforcement Criminal Court. If the conditions are met, a decision of coercive imprisonment of up to 3 months can be issued against the alimony debtor.
EXTENDED RESPONSIBILITY: SUPPORT ALIMONY (Turkish Civil Code Article 364) AND MODIFICATION/TERMINATION OF ALIMONY
The obligation to pay alimony is not limited solely to the responsibilities spouses have towards each other or their minor children. The Turkish legal system, based on kinship and family solidarity ties, weaves a broader network of protection. The most typical example of this protection network is Support Alimony, which can continue even after the child reaches adulthood following a divorce.
Additionally, due to fluctuations in the financial situations of the parties over time, it may be necessary to update or completely terminate previously awarded alimony payments. In this section, we will examine the legal basis for alimony and the processes for adjusting alimony payments.
3.1. The Necessity of Family Solidarity: Alimony (Turkish Civil Code Article 364)
According to Turkish Civil Code Article 364/1;Everyone is obligated to provide maintenance to their ancestors, descendants, and siblings, who would otherwise fall into poverty. In the context of divorce law, this institution most often appears as “supporting the education of a child who has reached the age of majority.”
Difference from Child Support: Child support automatically ends when the child reaches the age of 18 (or is declared an adult by the court). If the child is continuing their university education and cannot support themselves, the parent can no longer act on their behalf as custody rights have also ended. The child must independently file a lawsuit to request “support alimony.” Continuation of Parental Obligation to Provide Care (Turkish Civil Code Article 328/2): The law explicitly stipulates that the parents’ obligation to provide care continues even after the child reaches the age of majority, until the completion of their education, “to the extent that can be expected of them according to the circumstances.” 3.2. Modifying and Reducing Alimony Amounts (Turkish Civil Code Article 176/4)
Amounts determined during divorce proceedings or alimony cases may lose their validity and fairness over time. Adjustment of alimony is requested in cases of high inflation, decreased purchasing power, or changes in the socio-economic status of the parties.
Situations Requiring Alimony Adjustment:
├── 1. Decrease in Income ───────> The alimony payer becoming unemployed, going bankrupt, or experiencing a significant decrease in income.
├── 2. Increased Needs ───────> Increased education, health, or housing expenses for the alimony recipient (or child).
├── 3. Income Balancing ───> The spouse receiving alimony obtains a regular and sufficient income by finding employment.
└── 4. Inflation Effect ─────> Loss of the purchasing power of money (Groundings for Alimony Increase Cases).
Principle of Equity: In alimony increase or decrease cases, the judge re-conducts current financial assessments (SED reports) of the parties. The aim is to maintain the economic balance between the parties at the initial equitable level.
3.3. Conditions for Complete Termination of Alimony (Turkish Civil Code Article 176/3)
For poverty or support alimony to be completely terminated by court order, radical changes required by law must occur.
Automatic Termination (Without Court Proceedings): If the recipient of alimony remarries or one of the parties dies, alimony legally terminates automatically without the need for any court decision. Conditions for Termination by Lawsuit:
The recipient spouse is not officially married but is living with someone else as if they were married.
The recipient’s poverty has completely ended (e.g., receiving a substantial inheritance or securing a high-paying job).
The recipient is leading a dishonorable life (e.g., gambling, prostitution, or membership in a criminal organization).
My child has turned 18 and is going to university. Can my ex-spouse stop paying child support directly?
Yes, they can. Child support is legally terminated by the enforcement office or automatically upon the child reaching adulthood. For your child’s education expenses to continue to be covered, your child, who is attending university, must file a “Support Alimony” lawsuit against their father.
I was fired from my job and have no income. How can I stop paying alimony to my ex-spouse?
You cannot stop paying alimony on your own; otherwise, you will face enforcement proceedings and imprisonment. You must immediately file a “Lawsuit for Termination or Reduction of Alimony” citing your lack of income. The judge will examine the reason for your dismissal and your current assets and may suspend or reduce the alimony to a symbolic level.
I know my ex-spouse is living with someone else, but they are not officially married. Can I stop the alimony?
Yes. Even without an official marriage, if you can prove that your ex-spouse is living with someone else “as husband and wife,” the court will decide to completely terminate the alimony as a result of the lawsuit you file. You can prove this with social media posts, witness statements, or neighborhood records.
COMPENSATION AND ALIMONY IN CASES INVOLVING A FOREIGN ELEMENT (Turkish Private International Law Act, Article 14)
In divorce cases involving a foreign element, determining which country’s law governs claims for “compensation” and “alimony” is a complex legal conflict regulated by Article 14 of the Turkish Private International Law Act No. 5718. In practice, the law that grants the divorce decree may differ from the law applicable to the financial consequences of the divorce (compensation/alimony).
In this section, we will examine which laws determine the rights to compensation and alimony requested by foreign nationals from Turkish courts.
4.1. Applicable Law in Compensation Claims (Lex Causae)
In Turkish law, material and moral compensation is an ancillary (subsidiary) part of divorce. Therefore, Article 14 of the Turkish Private International Law Act… According to Article 14/1, the law of the country that applies to the merits of the divorce case also applies to compensation claims.
Hierarchy of Application:
Common National Law: If the spouses are citizens of the same country, the compensation law of that country applies.(Example: In a divorce in Türkiye between two British citizens, the compensation rules of English law apply).
Law of Common Habitual Residence: If the nationalities are different, the law of the place where the spouses live together applies.
Turkish Law: If the above are not applicable, the compensation provisions of the Turkish Civil Code (Article 174) apply directly.
Important Distinction: If the divorce case is heard according to the law of another country, the compensation understanding of that country (for example, the “no-fault” system instead of “fault” divorce) must be applied by the Turkish judge. However, this situation must not be contrary to Turkish public order (Private International Law Act, Article 5).
4.2. Applicable Law in Alimony Claims (Lex Domicilii)
International law follows a different path regarding alimony than compensation. Private International Law Act, Article… Article 14/2 adopts the principle of “the law of the habitual residence of the alimony creditor” to determine the scope and conditions of alimony obligations.
Principle of Protecting the Creditor: Since alimony is a “maintenance obligation,” the aim is to protect the creditor’s standard of living. Turkey is a party to the “1973 Hague Convention on the Law Applicable to Alimony Obligations” in this regard.
Procedure: Even if the divorce case is heard in Istanbul, if the spouse requesting alimony is living in Germany at the time, the Turkish judge may base the amount and duration of alimony on German law. However, in practice, judges often prefer to apply the Turkish Civil Code on the grounds of “Turkish public order” and “ease of domestic law.” 4.3. International Enforcement and “Recognition-Execution” Restriction
For a compensation or alimony awarded under foreign law to be enforceable on real estate or salary in Türkiye, the following process is mandatory:
Enforcement Requirement: If a foreign court decision includes a compensation/alimony ruling, this decision cannot be enforced in Türkiye without being enforced (confirmed).
Public Order Review: In an enforcement case, the Turkish court reviews whether the compensation awarded under foreign law is contrary to “Turkish public order.” For example, if the amount of compensation to be awarded in a divorce under foreign law is excessively high (exorbitant) compared to the economic situation of the parties, to the point of undermining the “fairness” principle of Turkish law, the Turkish judge may reject the enforcement request or grant partial enforcement.
In the divorce case we filed in Türkiye, my spouse wants the compensation law of their own country to be applied. Is this possible?
Yes, it is possible. If you and your spouse are citizens of the same country (common national law) or if the divorce case is governed by the laws of that country, the amount of compensation will be determined according to those laws. However, the court will expect you to submit a sworn translation of those foreign legal provisions to the file.
My foreign spouse left Türkiye and returned to their country. Can I file a maintenance lawsuit there?
Yes, you can. According to Article 14/2 of the Private International Law Act, since the law of your habitual residence applies to the maintenance recipient, you can enforce a maintenance decision obtained in your own country in Türkiye.
We received a “divorce without compensation” decision from a foreign court. Can I later file a compensation lawsuit in Türkiye?
No. If the foreign court decision is “enforced,” that decision constitutes a final judgment in Türkiye. If you waived your right to compensation in the foreign court or the case was concluded without compensation, you cannot file a new compensation lawsuit in Türkiye based on the same facts.
LEGAL EFFECTS OF DIVORCE ON RESIDENCE PERMIT AND CITIZENSHIP
The legal rights of foreigners married to Turkish citizens in Türkiye undergo a significant legal transformation when the marriage ends in divorce. The Law No. 6458 on Foreigners and International Protection (YUKK) and the Turkish Citizenship Law No. 5901 consider divorce a turning point that determines the status of a foreigner in Turkey.
In this final section, we will examine the fate of the foreign spouse’s residence permit after the finalization of the divorce decree, its effects on the citizenship application process, and exceptions for “special circumstances” (such as being a victim of violence).
5.1. Termination and Transformation of Family Residence Permit (YUKK Article 36)
The “Family Residence Permit,” obtained through a Turkish citizen spouse, is a type of permit based on the existence of a marriage. From the moment the divorce case becomes final, this permit loses its basis for residency.
Permit Cancellation: The Directorate of Migration Management usually cancels the family residence permit upon the registration of the divorce decree in the population registry.
Transition to Short-Term Residence (Law on Foreigners and International Relations, Article 36/1-b): If the foreign spouse wishes to continue residing in Türkiye after the divorce, they can switch to a “Short-Term Residence Permit” if the conditions are met. For this:
3-Year Requirement: The foreigner must have resided in Türkiye for at least 3 years with a family residence permit.
Good Faith: It is expected that the foreigner is not seriously at fault in the events leading to the divorce or has not abused the family unit.
5.2. Exceptions for Foreigners Victims of Violence
The legislator has foreseen positive discrimination to protect foreigners who are forced to separate from their spouses due to domestic violence during the divorce process.
3-Year Requirement Not Required: IfIf a foreign spouse divorces their Turkish spouse on the grounds of domestic violence (physical, psychological) and proves this with a court decision (protection orders, etc.), they can apply directly for a short-term residence permit without the requirement of having resided in Türkiye for 3 years. Humanitarian Residence Permit: In some cases, if returning to their home country poses a risk to the foreigner’s safety, a Humanitarian Residence Permit (Article 46 of the Law on Foreigners and International Protection) may be granted directly.
5.3. Fate of Acquired or Under Application Citizenship
Divorce directly affects the fate of a citizenship application or acquired citizenship.
Foreigner Under Application: If a foreigner who has applied for citizenship through marriage to a Turkish citizen (having fulfilled the 3-year marriage requirement) divorces while the citizenship process is ongoing, their citizenship application will be rejected because the marriage has ended. This is because the fundamental requirement of “continuation of marriage” no longer exists. Acquired Citizenship: If a foreigner acquired citizenship before a divorce (if the decision is final), a subsequent divorce does not result in the revocation of citizenship. However, there is an exception:
If it is proven that the marriage entered into to acquire citizenship was “amicable (collusive),” the citizenship decision can be retroactively revoked.
I got divorced, but my family residence permit hadn’t expired yet. Do I have to leave the country immediately?
No, you don’t have to leave immediately. However, your family residence permit has become invalid with the divorce. Generally, within 10 days of the divorce decree becoming final, you must apply to the Directorate of Migration Management to switch to another type of residence permit (tourist, work, short-term, etc.) or leave Türkiye. Failure to apply within this period risks administrative fines and deportation for “visa/residence violation.”
I proved that I experienced domestic violence while divorcing my Turkish spouse. Will this make it easier for me to obtain a residence permit?
Yes, it will greatly facilitate the process. According to Article 36 of the Law on Foreigners and International Protection, if you submit court decisions or police reports to the Directorate of Migration Management proving that you are a victim of violence, you will be entitled to a short-term residence permit without having to meet the 3-year requirement for a full residence permit.
I divorced immediately after the citizenship interview; will my citizenship be revoked?
The process is completed when the citizenship decision is approved by the Presidency and published in the Official Gazette. If you divorced after the interview but before the decision became final, your citizenship application will be rejected due to “dissolution of marriage.” However, if your citizenship decision was issued while your divorce case was ongoing, your citizenship will be preserved.
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