The Regime of Participation in Acquired Property in Turkish Law
Participation Regime for Acquired Property in Turkish Law
Article 219 of the Turkish Civil Code regulates the regime of participation in acquired property. The legal property regime envisaged within the marital union is the regime of participation in acquired property. Unless spouses choose a different property regime before or after the marital union, they are subject to the regime of participation in acquired property. Upon the termination of the marriage, liquidation is carried out according to the regime of participation in acquired property. The regime of participation in acquired property covers the assets acquired by the spouses during the marital union as well as their personal property. Upon the termination of the marriage, each spouse takes back their personal property. It is known that during the period of the Turkish Civil Code No. 743, the regime of participation in acquired property was not accepted as the legal property regime, but rather the regime of separation of property was adopted. As stated in the rationale of the article regarding the regime of participation in acquired property introduced by the new Turkish Civil Code, it was noted that the legal property regime between spouses during the marital union was "separation of property." When the marital union ended, it was heavily criticized in professional circles and public opinion that the regime of separation of property led to great injustices between spouses, particularly operating in favor of the husband who had a profession, and never taking into account the situation of the wife who performed housework and even assisted her husband in the practice of his profession.
For this reason, a new property regime called participation in acquired property was regulated. With this regulation, even if there is no concrete contribution, the Turkish Civil Code has granted the other spouse the right to claim a receivable on the acquired property obtained during the marriage, especially in recognition of the wife performing housework.
The scope of the participation in acquired property regime in the new Turkish Civil Code includes the personal property of the spouses as well as their acquired property during the marital union.
II. Acquired property
Turkish Civil Code Article 219- Acquired property refers to the asset values that each spouse obtains in return for consideration during the continuation of this property regime.
The acquired property of a spouse specifically includes the following:
1. Acquisitions that are the return of one's work,
2. Payments made by social security or social assistance institutions and organizations, or funds and similar entities established for the purpose of assisting personnel,
3. Compensation paid due to loss of working capacity,
4. Income from personal property,
5. Values that replace acquired property.
Furthermore, what constitutes personal property is regulated separately in the Turkish Civil Code.
III. Personal property
1. According to the law
Turkish Civil Code Article 220- The following are personal property by law:
1. Items serving only the personal use of one of the spouses,
2. Asset values that belonged to one of the spouses at the beginning of the property regime or that one spouse subsequently acquires through inheritance or any form of gratuitous acquisition,
3. Claims for non-pecuniary damages,
4. Values that replace personal property.
Before or during the marital union, spouses have the right to agree through a property regime contract that asset values that should be included in acquired property due to the practice of a profession or the operation of a business shall be considered personal property. They may also decide through a property regime contract that the income from their personal property cannot be included in acquired property. Spouses must prove who owns an asset in property division lawsuits. If it cannot be proven which spouse owns the assets during the proceedings, the assets shall be subject to division based on the spouses' shared ownership.
The issue most debated in property division lawsuits is the "residual value." Residual value is the value that emerges after deducting the debts related to that property from the value of the property accepted as acquired property. In divorce cases, if there are grounds for adultery or intent to kill, the judge may use their discretionary power to reduce or abolish the share of the at-fault spouse in the residual value in accordance with equity.
According to the Turkish Civil Code, acquired property consists of the assets that spouses have obtained in return for consideration while their property regime is ongoing, provided they have not chosen any other property regime before or during the marital union. Acquired property is explained with the following examples:
Assets acquired in return for work
Payments made by social security or social assistance institutions and organizations, or funds and similar entities established for the purpose of assisting personnel
Compensation paid due to loss of working capacity
Income from personal property
Values that replace acquired property