Pehlivan & Güven Law FirmPublished:
Under Turkish law, a divorce judgment does not decide what happens to the property acquired by the spouses during the marriage. If the spouses have no agreement concerning property acquired during the marriage, a separate action for the liquidation of the matrimonial property regime must be filed.
The parties are free to enter into a matrimonial property agreement on how their assets will be divided. This agreement may be made before the marriage, during the marriage or after the marriage. Spouses are not obliged to make a matrimonial property agreement; if they do not choose one of the optional property regimes, the statutory regime of participation in acquired property applies between them.
For property acquired up to 31.12.2001, the statutory matrimonial property regime was separation of property; the statutory regime applicable from 01.01.2002 onwards is participation in acquired property.
The optional matrimonial property regimes recognised by the Turkish Civil Code are as follows:
Unless proven otherwise, all property of each spouse is deemed to be acquired property. Accordingly, all of the spouses' assets are treated as subject to division. The same rule applies to debts. Under the acquired property regime, both the property and the debts acquired during the marriage are divided equally.
The following are deemed acquired property by law:
The basic principle of the statutory property regime is that both spouses share equally, in terms of value, the property they acquired during the marriage. The property of each spouse is deemed acquired property unless the contrary is proven; the law treats this as a rebuttable presumption.
The parties' personal property, on the other hand, is excluded from division. The burden of proving that an asset is personal property lies with the party claiming it.
The personal property of each spouse is not included in the liquidation.
The following assets are personal property by law (TMK Art. 220):
In an action between spouses for the liquidation of the matrimonial property regime, the spouses may claim a participation receivable, a value increase share and a contribution share.
In the action for the liquidation of the matrimonial property regime, the first step is to establish what assets (acquired property) the defendant spouse had on the date the divorce action was filed or on the date of death, and to determine the value of those assets. The residual value is calculated on the basis of these values. The participation rate is applied to the residual value, which gives the participation claim.
If a spouse's debts relating to personal property have been paid from acquired property, or debts relating to acquired property have been paid from personal property, compensation (equalisation) may be requested during the liquidation.
The residual value is the amount remaining after the debts relating to that property are deducted from the total value of each spouse's acquired property, including amounts obtained through additions and equalisation. Each spouse, or their heirs, is entitled to half of the other spouse's residual value.
In the case of divorce on the grounds of adultery or an attempt on the other spouse's life, the judge may decide to reduce, in accordance with equity, or to remove the at-fault spouse's share in the residual value.
In its practice in recent years, the Court of Cassation has accepted that assets to be added back are included in the liquidation at their value on the date of liquidation, not at their value on the dates they were transferred. This is because in our country many years can pass between the filing of a divorce action and the liquidation of the property regime, and real estate gains considerable value during this time. Otherwise, this would mean rewarding the spouse acting in bad faith once again.
A value increase share is the name of the claim made when spouses, after the end of the property regime, demand from each other the contributions they made to each other's property while the marriage continued (the equivalent of this claim for the period of separation of property before 01.01.2002 is the contribution share claim, which will be explained below as a separate type of claim).
For example, A and B married on 01.04.2010, and there is no matrimonial property agreement between them. During the marriage, the parties bought a house. The kitchen and bathroom of that house were renovated with money B had saved before the marriage. B spent a sum to cover the costs of this renovation. These renovation costs are taken into account as part of the equalisation. A value increase share equal to the value of the renovation is calculated in favour of the person who carried it out.
It is a type of claim, rooted in the Law of Obligations, that allows a spouse who contributed to an asset registered in the other spouse's name in the period before 01.01.2002 to claim the equivalent of that contribution, because the possibility of benefiting from the asset has disappeared after the end of the marriage. Spouses' contributions to each other's assets may take the form of labour, income, or a substitute asset/money.
Without the explicit consent of the other spouse, neither spouse may terminate the lease agreement relating to the family home, transfer the family home or restrict rights over the family home.
Assets that cannot be proven to belong to either spouse are deemed to be held by them in co-ownership (in shares). Unless otherwise agreed, neither spouse may dispose of their share in co-owned property without the other's consent.
