Welcome, Ms. Gizem. First of all, I would like to hear from you: what is the division of property in a divorce?

Welcome, Ms. Gizem. First of all, I would like to hear from you: what is property division in divorce?

Hello, Ms. Yağmur. First of all, thank you very much for your kind invitation. I will try to answer your questions regarding property division lawsuits, which are among the most important issues in divorce cases.

Property division in divorce refers to the distinction that assets acquired during marriage are shared values, while personal property consists of assets that are not shared. Property division between spouses after a divorce is carried out through a lawsuit for the liquidation of the matrimonial property regime.

Effective from 2002, it has been stipulated that the legal matrimonial property regime for spouses shall be the "participation in acquired property." Under the participation in acquired property regime, spouses participate in each other's acquired property; furthermore, they have personal property that belongs solely to them. In the participation regime, both parties have rights to half of the assets.

For marriages before 2001, the "Separation of Property Regime" is applied. In this regime, spouses only had the right to claim rights over assets registered in their own names. If an item was not registered in the name of one of the spouses, a claim of right was generally not possible.

The assets shared in a divorce case are accepted as follows. Property division in a divorce case is the sharing of acquired assets; any property acquired by each spouse in return for consideration during the marriage (common values) is shared between the spouses upon the termination of the marriage. According to Article 219 of the Turkish Code of Obligations: "Acquired property consists of the values that each spouse has obtained in return for consideration during the continuation of this property regime." Acquired property is accepted as follows;

Items acquired in return for their work,

Payments made by the SGK (Social Security Institution) and similar institutions,

Compensations paid due to the loss of working capacity,

Income from personal property,

Values that replace acquired property,

Dividend payments obtained (or to be obtained) from company shares or investments made by the company instead of paying dividends,

Things purchased with money obtained in return for a salary or work,

Money saved from a salary,

Automobiles, etc., purchased during the marital union,

Real estate (immovables) purchased during the marital union,

Visit fees, premiums, tips, bonuses,

Money earned from created works,

Earnings provided at the end of activities in the capacity of a contractor,

Unemployment benefits,

SGK payments,

Severance pay,

Rental income of real estate that is personal property. At this point, it must be proven that the income from personal property has not been spent and has been saved.

Interest brought by a fixed-term deposit where money that is personal property is kept in a bank,

Money obtained through personal property,

Things obtained with money earned from the sale of acquired property (replacement values),

Things acquired in return for a lifetime care agreement,

Awards,

Retirement bonus,

Individual pension (if the premiums were paid from acquired property).

In installment purchases, a share can be requested in return for installments paid during the marriage.

Even if the installments for an item purchased in installments extend beyond the divorce, the other spouse has a partial right to this item.

Which Assets Are Not Shared in Divorce?

Within the scope of property division in divorce, personal property is assets that are not subject to sharing upon the termination of the marriage. These are;

Items used personally only by one of the spouses,

Things belonging to one of the spouses before the marriage,

Things inherited during the marriage,

Values obtained in another way without consideration (without paying a price) during the marriage,

Non-pecuniary damage claims,

Values that replace personal property.

For example, gifts given to one of the spouses by their own relatives during the marriage are considered personal property and are not shared in divorce. For instance, if a house is shown as a sale but was donated by one spouse's own father, that house is not subject to property division in a divorce case.

The spouse who claims that an asset is personal property bears the burden of proof. The divorce lawyer must work very meticulously, especially regarding the proof aspect. Until proven otherwise, all assets are considered acquired and are subject to sharing.

How is a property division lawsuit conducted in divorce?

A property division lawsuit in divorce (liquidation of the matrimonial property regime) is not heard in the same file as the divorce itself.

In practice, a request for property division can also be written within the divorce petition. Even if a property division request is made, the judge separates the property division case and the divorce case. This is called the separation of files; both cases are conducted separately and have separate file numbers.

The other option is to file the lawsuit for the liquidation of the property regime after the divorce decision becomes final. This lawsuit is filed by adding the finalized divorce decision and all claims, demands, and evidence regarding the assets.

The property division lawsuit is stayed in the divorce case. This is called making it a prejudicial issue. The property division lawsuit is only decided after the divorce case is concluded.

Which court is authorized and has jurisdiction for the property division lawsuit?

A property division (liquidation of the matrimonial property regime) lawsuit during divorce is filed in the court where the divorce case is heard.

What is the statute of limitations for a property division lawsuit?

In case of divorce, there is a 10-year statute of limitations for filing a property division (liquidation of the matrimonial property regime) lawsuit from the date the divorce decision becomes final. The court with jurisdiction in a property division lawsuit that can be filed within 10 years is the Family Court. In places where there is no Family Court, the Civil Court of First Instance handles the property division lawsuit.

What can be requested in a property division lawsuit?

Three different requests can be made with a property division lawsuit.

Participation Claim

In case of divorce, each of the spouses has the right to a claim for the assets to be distributed half-and-half according to the principles of the "participation in acquired property regime."

The participation claim, which will be explained in detail below, is calculated according to the Turkish Civil Code:

As stated in Article 229 of the Turkish Civil Code, these asset values, which have actually left the spouse's estate but are calculated as if they were legally present in the estate, are called "added values."

Subsequently, a calculation must be made to balance the benefit or loss caused between the spouse's personal property and the property acquired during the marriage, regardless of whether the debts related to one spouse's personal property were incurred during or outside the marriage. This balancing calculation is called "offsetting." (TCC Art. 230)

Finally, after performing the added values and offsetting calculations, the value remaining after deducting the debts related to these properties from the total value of all properties acquired by the spouse during the marital union (TCC Art. 219) is accepted as the "participation claim" between the spouses.

The participation claim is shared half-and-half (CC Art. 236/1). These values shared half-and-half as the participation claim between the spouses are called "residual value" (CC Art. 231).

Contribution Share Claim

The contribution share claim is the claim system that was valid according to the old (repealed) Civil Code. Here, the "spouse who contributed to the asset acquired by the other spouse" can request a contribution share claim in the case of divorce.

Value Increase Share Claim

A value increase share claim arises in the event that one of the spouses makes a substantial contribution to the acquisition, improvement, or protection of an asset belonging to the other, without receiving any or adequate consideration. This is the right to a claim in proportion to their contribution for any value increase that may occur in that asset during the liquidation. (TCC Art. 227) For example, if a house was purchased before marriage and renovated during the marriage, the other spouse is entitled to a share in the renovation portion.

How is a property division lawsuit filed?

Whether filed together with the divorce case or after the divorce case, the property division lawsuit cannot be decided before the divorce decision becomes final. Each spouse is entitled to half of the other's assets. However, in some cases, a spouse cannot claim any right against the other spouse. The procedure for filing a divorce case also applies to the liquidation of the property regime.

In an uncontested divorce case, property division can be determined definitively by preparing an uncontested divorce protocol (agreement). In a contested divorce case, after the divorce decision is concluded, a property division lawsuit can be filed by stating a "declaration of request for property division" in the divorce petition.

What are acquired property and personal property under the Turkish Civil Code?

Unlike the Turkish Code No. 743, the Turkish Civil Code No. 4721 has adopted the participation in acquired property regime as the legal matrimonial property regime. In the preamble of Article 202 of the Turkish Civil Code No. 4721;

It was heavily criticized in professional circles and public opinion that when the marital union ended, the separation of property regime led to great injustices between spouses, worked especially in favor of the husband who was a professional, and did not take into account at all the situation of the wife who did the housework and even helped her husband in the performance of his profession.

For this reason, a new property regime has been regulated under the title of "participation in acquired property."

In the first paragraph of Article 202 of the Turkish Civil Code No. 4721, it is stated that the legal property regime between spouses is "participation in acquired property." In the second paragraph of Article 202 of the Turkish Civil Code No. 4721, it is stated that spouses can choose one of the other property regimes specified in the law by making a property regime contract.

As explained in detail in the preamble of the law article, even if there is no concrete contribution, the opportunity for the other spouse to claim a receivable on the assets acquired during the marriage has been introduced, especially for the wife doing housework and taking care of the children.

The participation in acquired property regime covers the spouses' personal property and assets acquired during the marriage. Upon the termination of the participation in acquired property regime, each spouse takes back their personal property held by the other spouse.

In the Turkish Civil Code No. 4721, personal property is as follows;

Items used only for the personal use of one of the spouses. For example, women's jewelry, makeup materials, and clothing.

Asset values that belonged to one of the spouses at the beginning of the property regime or that one spouse later obtained through inheritance or any other way by gratuitous acquisition are considered personal property.

Non-pecuniary damage claims are considered personal property.

Spouses can decide through a property regime contract that asset values that should be included in acquired property due to the performance of a profession or the operation of a business will be considered personal property. Furthermore, spouses can stipulate by making a property regime contract that the income of personal property will not be included in acquired property.

As explicitly regulated in the Turkish Civil Code, the person claiming that a specific asset belongs to one of the spouses is obliged to prove their claim. Assets that cannot be understood to belong to which of the spouses are accepted to be in the shared ownership of the spouses.

According to Article 231 of the Turkish Civil Code No. 4721;

Residual value

Article 231 - Residual value is the amount remaining after deducting the debts related to these assets from the total value of each spouse's acquired assets, including amounts obtained from additions and offsetting.

Value decrease is not taken into account.

Each spouse or their heirs have the right to half of the residual value belonging to the other spouse when the property regime ends. As clearly regulated in the law article, residual value is found by deducting the debts related to the asset from the value of the asset accepted as acquired property. In divorce cases due to adultery or attempt on life, the judge has the right to decide to reduce or remove the faulty spouse's share rate in the residual value in accordance with equity.

According to Article 219 of the Turkish Civil Code No. 4721; acquired property is asset values that spouses have obtained in return for consideration while the property regime continues.

II. Acquired property

Article 219 - Acquired property is the asset values that each spouse has obtained in return for consideration during the continuation of this property regime.

The acquired property of a spouse specifically includes:

Acquisitions in return for their work,

Payments made by social security or social assistance institutions and organizations or funds established for the purpose of helping personnel and similar ones,

Compensations paid due to loss of working capacity,

Income from their personal property,

Values replacing acquired property

A salary can be given as an example of acquisitions in return for work. As an example of payments made by social security or social assistance institutions and organizations or funds established for the purpose of helping personnel, one can cite the retirement bonus. An example of income from personal property is rental income from real estate belonging to one of the spouses. Values replacing acquired property are real estate purchased with the salary of one of the spouses.

During the property liquidation lawsuit stage, it is observed that disputes arise between spouses regarding whether assets are personal property or acquired property. With the commencement of property liquidation transactions, until proven otherwise, all assets of the spouses are accepted as acquired property.

With the termination of the property regime, all assets of the spouses are accepted as acquired property. However, if the spouses claim that a specific asset belongs to them and prove this claim, the dispute over the asset in question disappears.

Assets that cannot be proven to belong to which of the spouses will be considered in the shared ownership of the spouses.

According to Article 216 of the Turkish Civil Code No. 4721; regulations have been introduced regarding the creation of an inventory record, considering the situation where the spouse who is the owner of an asset cannot prove this.

G. Inventory

Article 216 - Each of the spouses may at any time request that an inventory of their property be made by an official document.

If this inventory has been made within one year starting from the bringing of the goods, it is accepted that this inventory is correct unless proven otherwise.

It is stipulated in the Turkish Civil Code that each of the spouses may request that an inventory of their property be made by an official document. If this inventory has been made within one year starting from the bringing of the goods, it is accepted that this inventory is correct unless proven otherwise.

How is the transition to extraordinary property regimes made under the Turkish Civil Code?

The regime described as an extraordinary property regime in the Turkish Civil Code No. 4721 is the separation of property regime. If spouses have jointly decided to choose one of the regimes of property partnership, shared separation of property, or participation in acquired property, or if they have not chosen a property regime and are subject to the legal property regime of participation in acquired property, the issue of transition to an extraordinary property regime arises. The Turkish Civil Code has accepted with clear provisions that spouses are free regarding property regimes and that both must consent. However, in some cases, by applying to the court, the judge can decide to switch to the separation of property regime upon the request of one of the spouses if there is a just cause.

According to Article 206 of the Turkish Civil Code No. 4721; in cases clearly regulated, the transition to the separation of property regime can also occur automatically.

Extraordinary property regime

I. Upon the request of one of the spouses

1. Decision

Article 206 - If there is a just cause, the judge may, upon the request of one of the spouses, decide that the existing property regime shall be converted into separation of property.

A just cause is accepted especially in the following cases:

1. The assets belonging to the other spouse are insolvent or their share in the partnership has been seized,

2. The other spouse has endangered the interests of the requester or the partnership,

3. The other spouse has withheld, without a just cause, their consent required for a disposition transaction on the partnership's assets,

4. The other spouse has avoided providing information about assets, income, debts, or partnership assets to the requesting spouse,

5. The other spouse is permanently lacking the capacity to discern.

If one of the spouses is permanently lacking the capacity to discern, their legal representative may also request a decision for separation of property based on this reason.

The Turkish Civil Code No. 4721 has regulated the extraordinary transition to the separation of property regime in three ways. Namely;

Extraordinary transitions can be spoken of through obtaining a court decision in line with the request of one of the spouses, in cases of forced execution, bankruptcy, and seizure, and in the liquidation of the previous regime.

What are the property regimes under the Turkish Civil Code?

During the period of preparation of the New Civil Code Draft, it was taken into account that the separation of property regime caused great injustices between spouses in social life and generally led to women being victimized. Based on the principle that spouses have equal rights within the marital union, the idea of regulating a property regime based on equal sharing was set out.

According to Article 185 of the Turkish Civil Code No. 4721;

A. Rights and obligations

I. In general

Article 185 - With marriage, a marital union is established between the spouses.

Spouses are obliged to ensure the happiness of this union together and to care for the maintenance, education, and supervision of the children together.

Spouses must live together, remain faithful to each other, and assist each other.

With marriage, a marital union is considered established between the spouses. With the marital relationship, legal changes occur in the "personal" status of the spouses as a result of the marriage, as well as legal changes in their "financial" status.

The Turkish Civil Code has regulated the provisions and consequences of the property regime in detail. Namely; the property regime can be defined as a legal institution that shows how spouses manage the property they own, how they benefit from and dispose of it, and how the property should be distributed as a result of the termination of the marital union in any way.

According to Article 202 of the Turkish Civil Code No. 4721;

It grants spouses the right to choose other property regimes provided for in the law, in addition to the legal property regime of participation in acquired property. However, spouses cannot decide to apply a regime other than those contained in the Turkish Civil Code.

The repealed Turkish Code No. 743 provided for the "separation of property" regime as the legal property regime between spouses.

In the currently effective Turkish Civil Code No. 4721, the "participation in acquired property regime" is regulated differently as the legal property regime.

The Turkish Civil Code also regulates the optional property regimes of "separation of property," "shared separation of property," and "community of property."

The repealed Turkish Code No. 743 provided for the "community of property" and "union of property" regimes as optional property regimes.

Pursuant to Article 203 of the Turkish Civil Code No. 4721;

I. Content of the contract

Article 203- A property regime contract may be concluded before or after marriage. The parties may choose, abolish, or change their preferred property regime only within the limits set forth in the law.

It has been stipulated that a property regime contract may be concluded before or after marriage. Furthermore, persons who are to be married may enter into a property regime contract in the form of a notarized deed or notarized certification, or they may accept another property regime prescribed by law in place of the legal property regime by notifying the authorized marriage officer in writing during their marriage application that they have selected one of the optional property regimes.

Pursuant to Article 205 of the Turkish Civil Code No. 4721;

III. Form of the contract

Article 205- The property regime contract is concluded in the form of a notarized deed or certification.

However, the parties may also notify in writing which property regime they have chosen during the marriage application.

It is mandatory for the property regime contract to be signed by the parties and, when necessary, by their legal representatives.

The property regime contract is concluded in the form of a notarized deed or certification. However, the parties may also notify in writing which property regime they have chosen during the marriage application. It is stipulated that the property regime contract must be signed by the parties.

Appointing a voluntary representative; a property regime contract cannot be concluded by proxy/representation by granting a power of attorney to an individual or hiring a lawyer. A legal representative of a minor or an incapacitated person also cannot personally sign such a property regime contract on their behalf and for their account. Spouses cannot make retroactive changes with a new property regime contract they conclude.

The types of optional property regimes regulated in the Turkish Civil Code No. 4721 are as follows;

Separation of Property Regime: In this property regime, each spouse retains the rights of management, benefit, and disposal over their own assets within legal limits. It is an optional property regime where each spouse is the owner of the property belonging to them, regulated under specific conditions in the law.

Shared Separation of Property Regime: Although many of its provisions are similar to the regime of participation in acquired property, it provides convenience in terms of liquidation. As a rule, spouses have the rights of management, benefit, and disposal over their own assets within legal limits. Each spouse holds the right of ownership over their own property, whether acquired during the marriage or in the nature of personal property, within legal limits.

Community of Property Regime: In this property regime, the assets of the spouses, excluding those considered personal property by law, and their income constitute the common property. Spouses own the common property as an undivided whole. Spouses may keep certain assets outside the community. The community of property regime consists of “common property” and “spouses’ personal property.” Unless proven to be the personal property of one spouse, all asset values are considered common property. In this context, as a rule, the assets of the spouses, excluding those considered personal property by law, and their income constitute the common property. However, spouses may choose a community consisting only of acquired property or may keep certain asset values outside the community.

Pursuant to Article 204 of the Turkish Civil Code No. 4721;

II. Capacity to contract

Article 204- A property regime contract may only be concluded by those who have the power of discernment.

Minors and incapacitated persons must obtain the consent of their legal representatives.

A property regime contract may only be concluded by those who have the power of discernment. Minors and incapacitated persons must obtain the consent of their legal representatives. Having the power of discernment is sufficient to conclude a property regime contract; spouses are not required to be of legal age. Property regime contracts are in the nature of rights strictly attached to the person. For this reason, a property regime contract must also be concluded personally by minors and incapacitated persons who have the power of discernment.

A. Legal property regime

Article 202- The application of the regime of participation in acquired property between spouses is the rule.

Spouses may adopt one of the other regimes determined by law through a property regime contract.

How does the termination of a property regime occur?

In this article, I will talk to my dear readers about the termination of property regimes. As you know, the provisions to be applied to property regimes are regulated in detail in Articles 202 and 218 of the Turkish Civil Code. In order for the liquidation of a property regime to be requested, the property regime between the parties must first come to an end. In ongoing property regime contracts, liquidation arises only and exclusively upon termination. Situations that terminate the property regime are regulated in the Turkish Civil Code as follows.

In the event of the death of one of the spouses, the property regime takes effect as of the date of death. This is the termination of the property regime due to death.

Another form of termination is the case where one of the spouses chooses a different property regime. With the selection of a new property regime, the old property regime ends.

The property regime also ends in the event of the divorce or marriage annulment of the parties. The property regime ends as of the date the divorce case or the annulment of marriage case is filed.

Finally, in the event that the judge decides to switch to separation of property, the property regime ends as of the date of the lawsuit.

Thank you very much for the information you have provided. Finally, if there are readers experiencing problems with this topic, what would you like to say to them?

Thank you again for your kind invitation. I hope this has been a useful interview for all our readers. I recommend that our readers definitely manage the process with a lawyer who is an expert in this field so as not to experience problems regarding property division.