Property Regimes Under the Turkish Civil Code
Property Regimes Under the Turkish Civil Code
During the preparation of the new Civil Code draft, it was taken into consideration that the regime of separation of property caused significant injustices between spouses in social life and generally led to women being victimized. Starting from the idea of regulating a property regime based on equal sharing in accordance with the principle of spouses having equal rights within the marital union, the regulations were established.
In accordance with Article 185 of the Turkish Civil Code No. 4721;
A. Rights and obligations
I. In general
Article 185- The marital union is established between spouses through marriage.
Spouses are obliged to ensure the happiness of this union through joint effort and to care for the maintenance, education, and supervision of their children together.
Spouses are obliged to live together, remain loyal to each other, and provide assistance.
With marriage, a marital union is considered to be established between the spouses. Along with the marital relationship, legal changes occur in the "personal" status of the spouses due to the marriage, just as legal changes occur in their "financial" status.
The Turkish Civil Code regulates the provisions and consequences of the property regime in detail. Specifically, a property regime can be defined as a legal institution that demonstrates how spouses manage the assets they possess, how they benefit from and dispose of them, and how assets should be distributed as a result of the termination of the marital union in any way.
In accordance with Article 202 of the Turkish Civil Code No. 4721;
A. Legal property regime
Article 202- The regime of participation in acquired property is the primary regime applied between spouses.
Spouses may adopt one of the other regimes determined by law through a property regime contract.
Spouses are granted the right to choose other property regimes included in the law, in addition to the legal property regime of participation in acquired property. However, spouses cannot decide on the application of 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The repealed Turkish Code No. 743 provided for the "separation of property" regime as the legal property regime between spouses.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, however, the "regime of participation in acquired property" has been established as the legal property regime.
Furthermore, the Turkish Civil Code regulates the elective property regimes of "separation of property," "shared separation of property," and "community of property."
The repealed Turkish Code No. 743 had provided for "community of property" and "unity of property" as elective regimes.
In accordance with Article 203 of the Turkish Civil Code No. 4721;
I. Content of the contract
Article 203- A property regime contract may be made before or after marriage. The parties may choose, terminate, or change the property regime they desire, only within the limits prescribed by law.
It is stipulated that a property regime contract may be made before or after marriage. Furthermore, persons who are about to marry may enter into a property regime contract in the form of a deed prepared or certified by a notary, or they may accept another property regime prescribed by law instead of the legal property regime by notifying the authorized marriage officer in writing during their marriage application that they have chosen one of the elective property regimes.
In accordance with Article 205 of the Turkish Civil Code No. 4721;
III. Form of the contract
Article 205- A property regime contract is made in the form of a deed prepared or certified by a notary.
However, the parties may also notify in writing which property regime they have chosen during their marriage application.
It is mandatory for the property regime contract to be signed by the parties and, if necessary, by their legal representatives.
A property regime contract is made in the form of a deed prepared or certified by a notary. However, parties may also notify in writing which property regime they have chosen during their marriage application. The provision that the property regime contract must be signed by the parties is stipulated.
Appointing a voluntary representative; a property regime contract cannot be made by proxy or by representing through giving a power of attorney to an individual or hiring a lawyer. The legal representative of a minor or a restricted person cannot sign such a property regime contract on their behalf and account. Spouses cannot make retroactive changes with a new property regime contract they enter into.
The types of elective 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, use, and disposal over their own assets within legal limits. It is an elective property regime where each spouse is the owner of the property belonging to them, subject to certain conditions regulated by law.
Shared Separation of Property Regime: While 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, use, and disposal over their own assets within legal limits. Each spouse has the right of ownership over their own property within legal limits, regardless of whether it was acquired during the marriage or is considered personal property.
Community of Property Regime: In this property regime, the assets and income of the spouses, excluding those considered personal property by law, constitute community property. Spouses own the community property as an undivided whole. Spouses may exclude certain assets from the community. The community of property regime consists of "community property" and "spouses' personal property." Unless it is proven that an asset is the personal property of one spouse, all asset values are considered community property. In this context, as a rule, the assets and income of the spouses, excluding those considered personal property by law, constitute community property. However, spouses may choose a community consisting only of acquired property, or they may exclude certain asset values from the community.
In accordance with Article 204 of the Turkish Civil Code No. 4721;
II. Capacity to contract
Article 204- A property regime contract can only be made by those who have the power of discernment.
Minors and restricted persons must obtain the consent of their legal representatives.
A property regime contract can only be made by those who have the power of discernment. Minors and restricted persons must obtain the consent of their legal representatives. To be able to enter into a property regime contract, it is sufficient to have the power of discernment, and it is not required for the spouses to be of legal age. Property regime contracts are of the nature of rights strictly tied to the person. Therefore, a property regime contract must also be made in person by minors and restricted persons who have the power of discernment.
Attorney Gizem GONCE