Whether overpaid maintenance can be recovered does not follow the same route in every case. An excess collected in an enforcement file because of an account error, a judgment that later ceased to exist, payments made under enforcement pressure and voluntary family support are each assessed differently. The first question is not simply how much money was paid. What legal basis supported the payment, to whom was the money transferred, and when did that basis cease to exist? [1; 2]
This guide addresses the ways in which payments already made can be recovered. A request to reduce or terminate maintenance must be kept separate from a request to recover all money paid in the past. The review date is October 14, 2026. A change to a maintenance order with effect for the future does not mean that all earlier payments were automatically unjustified.
First distinction in a refund request: account error or the substance of the debt?
An enforcement office may have collected the same monthly amount twice. Alternatively, the person who paid may argue that the maintenance creditor no longer holds the right. In the first case the excess is visible from the file accounts; in the second, there is a question of entitlement that must be assessed under substantive law. Treating these two claims under a single heading of "overpayment" may lead to the wrong procedure. [1]
Preparing a refund requires extracting together the operative part of the judgment, any later decision revoking or reducing it, the finality record, the list of payments, and the enforcement collection and disbursement records (tahsilat-reddiyat). Money leaving a bank account and money reaching the creditor are not the same record. It should not be assumed that an amount held pending in the enforcement account has been paid to the creditor.
| Situation | Route to consider first | Basic limit |
|---|---|---|
| Excess on the file account or payment to the wrong person | Refund at the enforcement office under Article 361 of the Enforcement and Bankruptcy Law No. 2004 (İİK) | The excess must be apparent from the file account |
| Subsequent annulment or reversal of an enforced judgment | Restoration to the former position under Article 40 | Finality and non-indebtedness conditions of the law |
| Payment under enforcement pressure although no debt existed | Restitution action under Article 72, where its conditions are met | Time limit, type of enforcement proceedings and limits of res judicata |
| Payment made by mistake outside enforcement proceedings | Unjust enrichment provisions | Cause of the payment, mistake and scope of restitution |
These routes are not alternatives that can be freely chosen. In particular, a restitution action (istirdat davası) cannot be brought in order to circumvent the substantive effect of a final court judgment. The period and the amount for which the judgment is binding must be determined first. [1; 2]
How is money in an enforcement file recovered?
Article 361 of the Enforcement and Bankruptcy Law provides a means of recovery, without a separate judgment, where the enforcement office has collected more from the debtor than is due and passed it to the creditor, or where payment has been made to a person by mistake. It is therefore not accurate to say that the office can never seek a refund once money has reached the creditor. However, not every claim of non-indebtedness falls within the scope of this article. [1] For a detailed assessment, see Return of Enforcement Payments (İcranın İadesi).
The distinction in the Court of Cassation's 2018 decision
In the decision of the 12th Civil Chamber of the Court of Cassation (Yargıtay 12. Hukuk Dairesi), E.2018/3443, K.2018/7987, dated September 13, 2018, payments made under interim maintenance (tedbir nafakası) after the dismissal of a divorce action were examined. Amounts remaining in the enforcement file were separated from amounts paid to the creditor's counsel. Because the earlier attachment was lawful on that date and given the nature of the dispute, the court stated that the paid portion had to be claimed through a restitution action. [3]
The result of the decision does not treat the account through which money passed as the sole decisive factor. It must be examined whether the refund request concerns an error that can be resolved from the file account, or a later challenge to the basis of the payment. The petition submitted to the office must specify the month, the collection, the disbursement entry and the alleged excess.
How is the one-year period applied in a restitution action?
Article 72 of the Enforcement and Bankruptcy Law provides that a person who had to pay money they did not owe, because they did not object to the enforcement proceedings or because their objection was lifted, may bring a claim for its return within one year from the date of payment. Restitution presupposes that the payment was actually made. Establishing that no debt existed before payment and a claim for recovery after payment are different matters. [1]
For periodic payments such as maintenance, assuming that the last payment restarts the time limit for all past years carries serious risk. The date and the period of each payment must be shown. Looking only at the closing date of the enforcement file is also not sufficient to determine the time limit.
Decision of the 3rd Civil Chamber of the Court of Cassation (Yargıtay 3. Hukuk Dairesi) of April 6, 2017
In E.2016/11609, K.2017/4900, the request to recover maintenance payments made while the child was in fact living with the father was examined. The Court of Cassation assessed the periodic payments in light of the one-year preclusive period (hak düşürücü süre) for restitution and quashed the judgment. It cannot be concluded from this decision that all earlier monthly payments may be recovered on the basis of the last payment. [4]
A missed preclusive period cannot be cured in every case by simply labelling the same event "unjust enrichment". The true nature of the claim and the special provision applied are what matter. When preparing the payment list, the one-year boundary counted backward from the filing date should be marked separately; which payments fall within it must be examined legally in each case.
Payments after the child reaches eighteen
A child's attaining majority affects the legal basis of maintenance ordered for a minor. However, if education continues, Article 328(2) of the Turkish Civil Code No. 4721 (TMK) and, where its conditions are met, the provisions on support maintenance (yardım nafakası) may also come into play. The expiry of an old order and the refund of each payment made afterwards do not lead to the same result. [5; 6]
In the decision of the 3rd Civil Chamber of the Court of Cassation dated October 20, 2016, E.2016/7546, K.2016/11892, payments made after majority were assessed within the scope of fulfilling a moral duty. The fact that payments were made through the enforcement channel did not by itself lead to a refund. The decision shows the importance of the context of education and family support. [5]
This assessment does not mean that every payment after majority is a gift. Multiple collection, an account error, the intention to pay, the child's educational status and a new maintenance order may produce different results. On the other hand, merely stating that "the child turned eighteen" is not enough to request the return of all past transfers.
Voluntary payment and unjust enrichment
Under Articles 77 et seq. of the Turkish Code of Obligations No. 6098 (TBK), a person who is enriched without legal cause owes restitution. When a person who performed an obligation they did not owe, on their own initiative, seeks its return, the mistake condition in Article 78 and the exception for moral duty are important. The explanation for the payment, the parties' correspondence and the purpose for which the payment was made are therefore examined. [2]
Article 79 of the same Code, on good faith and on enrichment that has been disposed of (elden çıkmış zenginleşme), may also affect the scope of restitution. Money spent on daily needs does not by itself remove the obligation to return in every case; the recipient's position, whether they knew of the possibility of return, and the statutory conditions are assessed. Likewise, bad faith cannot be inferred merely from hostility between the parties.
| Period or issue | Review criterion |
|---|---|
| Restitution under Article 72 of the Enforcement and Bankruptcy Law | Special one-year period from the date of payment |
| Article 82 TBK | Two years from learning of the right to claim return; in any event ten years from the enrichment |
| Periodic maintenance payments | Each payment and the related period are shown separately |
| Payment under a valid enforceable judgment (ilam) | Finality of the judgment and the date on which any later change took effect |
The two-year and ten-year periods in the table are not a general safeguard for every maintenance refund. First the legal route that applies to the claim must be identified. The special restitution period and the limitation period for unjust enrichment should not be confused.
Against whom is the refund claimed and what evidence is needed?
The respondent to a refund claim cannot be identified merely by the name that appears on a bank receipt. Money collected in the child's name, the parent's power of representation and disbursement to counsel are assessed separately. The fact that a payment was made into counsel's account within the file does not by itself show that counsel was personally unjustly enriched. [2; 3]
The evidence file should contain all judgments, service and finality records, the enforcement account statement, bank receipts and payment explanations, and documents relating to the event on which the refund claim rests. If the child's actual place of residence or educational situation is disputed, these must also be matched to the relevant periods. A document added to the file is not enough on its own; it must be explained which payment it shows did not create a debt, and why.
Filing a refund action does not by itself suspend the continuing maintenance obligation. Unilaterally withholding future monthly payments on the belief that past overpayments were made may create a new dispute. The legal conditions for set-off and offsetting (takas ve mahsup), and the binding effect of the existing order, must be examined separately.
Conclusion
A successful refund claim for maintenance combines the list of payments with their legal basis and the correct procedural route. An open excess on the file, restitution and unjust enrichment are subject to separate rules. Particularly for periodic payments, the time limit, the moral duty after majority and the effect of a valid judgment must not be overlooked. The first step is to compare the legal basis of each payment with the collection and disbursement records.
Related articles: Coercive Imprisonment for Unpaid Maintenance: Conditions, Service, Complaint Deadlines and Objection; Maintenance Interest and Annual Increase Calculation: Start Date, Index and Missed Payments; Where and How to File a Maintenance Action? Competent Court, Venue, Mediation and Legal Aid; What Happens to Maintenance When Custody Changes? Actual Care of the Child, New Maintenance and Past Debts.
Frequently Asked Questions
I paid the same month's maintenance twice; can I get it back?
A duplicate payment must be documented. If there is an open excess on the enforcement file, Article 361 of the Enforcement and Bankruptcy Law applies; otherwise the route appropriate to the nature of the payment is assessed. [1]
Can the enforcement office reclaim money paid to the creditor?
The conditions for this are set out in Article 361 of the Enforcement and Bankruptcy Law. However, not every substantive legal dispute can be resolved through this route. [1; 3]
What is the time limit for a restitution action?
For a claim under Article 72 of the Enforcement and Bankruptcy Law, the period is one year from the date of payment. Maintenance payments should be examined period by period. [1; 4]
Does the last payment renew the time limit for all earlier payments?
No such assumption can be made for periodic maintenance payments. The date of each payment should be shown separately. [4]
If maintenance is reduced, are earlier payments refunded automatically?
No. The effective date of the new decision and the basis of the earlier payment are decisive. The whole past does not automatically become unjustified. [1]
Is maintenance paid after the age of eighteen always refundable?
No. Educational support and the assessment of moral duty may come into play. The circumstances of the specific case are examined. [5; 6]
Is payment through the enforcement channel enough for a refund?
Not on its own. The 2016 decision also assessed payment made through the enforcement channel within the circumstances of the case. [5]
What must be proven to request a voluntary payment back?
The legal basis of the payment, the absence of a debt and, where relevant, mistake are examined. The exception for the performance of a moral duty is also taken into account. [2]
Can I bring a refund action directly against the other party's counsel?
Sending the reimbursement request to counsel is not enough on its own. The representation relationship and the person who was actually enriched must be identified. [2; 3]
Can I stop paying the new monthly instalments because I am seeking a refund?
A refund request does not by itself end the existing maintenance obligation. Instead of unilateral withholding, the order and the conditions for set-off must be examined. [1; 2]
Sources and legal bases
- Enforcement and Bankruptcy Law No. 2004 (İcra ve İflas Kanunu), Arts. 40, 72, 361. <https://www.mevzuat.gov.tr/mevzuatmetin/1.3.2004.pdf>
- Turkish Code of Obligations No. 6098 (Türk Borçlar Kanunu), Arts. 77–82 and 139–144. <https://www.mevzuat.gov.tr/mevzuatmetin/1.5.6098.pdf>
- Court of Cassation, 12th Civil Chamber, September 13, 2018, E.2018/3443, K.2018/7987. <https://mevzuat.adalet.gov.tr/ictihat/450069200>
- Court of Cassation, 3rd Civil Chamber, April 6, 2017, E.2016/11609, K.2017/4900. <https://mevzuat.adalet.gov.tr/ictihat/360304800>
- Court of Cassation, 3rd Civil Chamber, October 20, 2016, E.2016/7546, K.2016/11892. <https://mevzuat.adalet.gov.tr/ictihat/271559500>
- Turkish Civil Code No. 4721 (Türk Medeni Kanunu), Arts. 328, 364–365. <https://www.mevzuat.gov.tr/mevzuatmetin/1.5.4721.pdf>