Property Regimes Under the Turkish Civil Code
Property Regimes Under the Turkish Civil Code
During the preparation of the new Civil Code bill, it was taken into account that the regime of separation of property caused great 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 that spouses have equal rights within the family union, this system was formed.
Pursuant to 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 jointly liable to ensure the happiness of this union and to care for, educate, and supervise their children together.
Spouses are obliged to live together, to remain faithful to each other, and to provide mutual assistance.
With marriage, a marital union is deemed to be established between the spouses. Along with the marital relationship, legal changes occur in the "personal" status of the spouses as a result of 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 will manage the assets they possess, how they will 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.
Pursuant to 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 agreement.
Spouses are granted the right to choose other property regimes provided for in the law, in addition to the legal property regime, which is the 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The repealed Turkish Code No. 743 provided for the "separation of property" regime as the legal property regime between spouses.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, however, the "participation in acquired property regime" has been regulated as the legal property regime.
The Turkish Civil Code also regulates "separation of property," "shared separation of property," and "community of property" as optional property regimes.
In the repealed Turkish Code No. 743, the "community of property" and "union of property" regimes were envisioned as optional property regimes.
Pursuant to Article 203 of the Turkish Civil Code No. 4721;
I. Content of the agreement
Article 203- A property regime agreement can be made before or after marriage. The parties may choose, abolish, or change the property regime they desire only within the limits prescribed by law.
It is stipulated that a property regime agreement can be made before or after marriage. Furthermore, persons who are about to marry may enter into a property regime agreement in the form of a deed prepared or certified by a notary, or they may accept a property regime other than the legal one by notifying the authorized marriage officer in writing at the time of 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 agreement
Article 205- A property regime agreement 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 at the time of their marriage application.
It is mandatory for the property regime agreement to be signed by the parties and, when necessary, their legal representatives.
A property regime agreement 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 at the time of their marriage application. It is stipulated that the property regime agreement must be signed by the parties.
A property regime agreement cannot be made by proxy through appointing a voluntary representative, giving a power of attorney, or hiring an attorney. The legal representative of a minor or an incapacitated person also cannot sign such a property regime agreement on their behalf and account. Spouses cannot make changes with retroactive effect through a new property regime agreement.
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 of the spouses retains their rights of management, benefit, and disposal over their own assets within legal limits. It is an optional property regime where each of the spouses is the owner of their own property, subject to specific conditions set out in the law.
Shared Separation of Property Regime: While many of its provisions resemble the participation in acquired property regime, it provides convenience in terms of liquidation. As a rule, spouses have the right to manage, benefit from, and dispose of their own assets within legal limits. Each of the spouses has the right of ownership over their own assets within legal limits, regardless of whether they were acquired during the marriage or are considered personal property.
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 community property. Spouses own the community property as an undivided whole. Spouses may keep certain assets outside the community. The community of property regime consists of "community assets" and "spouses' personal property." Unless it is proven that an asset is the personal property of one spouse, all assets are considered community property. In this context, as a rule, assets of the spouses, excluding those considered personal property by law, and their income constitute the community property. However, spouses may choose a community consisting only of acquired property, or they may keep certain assets outside the community.
Pursuant to Article 204 of the Turkish Civil Code No. 4721;
II. Capacity to enter into an agreement
Article 204- A property regime agreement can only be made by those who have the power of discernment.
Minors and those under legal disability must obtain the consent of their legal representatives.
A property regime agreement can only be made by those who have the power of discernment. Minors and those under legal disability must obtain the consent of their legal representatives. To enter into a property regime agreement, it is sufficient to have the power of discernment, and spouses do not need to be of legal age. Property regime agreements are of the nature of rights strictly attached to the person. For this reason, a property regime agreement must be made personally by minors and those under legal disability who have the power of discernment.
Attorney Gizem GONCE