The property regime is the legal regime regulating the management, sharing and liquidation of assets acquired by spouses during the marriage. Having entered into force on 1 January 2002 Turkish Civil Code No. 4721 together with this, the participation regime in acquired property has been adopted as the legal property regime. However, spouses may also adopt one of the optional property regimes stipulated in the law by contract.
Property Regime Before 2002 and Transitional Provisions (Article 10 of the Turkish Civil Code Transitional Provisions)
Prior to 2002, the regime of separation of property was applicable between spouses under the Civil Code No. 743. However Turkish Civil Code No. 4721’With the entry into force of the , unless spouses chose a different property regime within one year, the marriage was automatically deemed to have transitioned to the regime of participation in acquired property. Therefore, which regime applies in terms of property division for marriages prior to 2002 is of importance. Article 10 of the Law on the Enforcement and Application Procedure of the Turkish Civil Code clearly regulates the transition process in this regard.
What are the Types of Property Regimes? (Turkish Civil Code art. 202 – 206)
Spouses may choose one of the following property regimes by contract:
- Participation regime for acquired property (statutory property regime)
- Separation of property regime
- participation regime of acquired property
- Property partnership regime
Furthermore, within the framework of the “extraordinary property regime” governed by Article 206 of the Turkish Civil Code, upon the existence of just grounds, a court decision may be rendered to convert the existing regime into one of separation of property.
What are Acquired Property and Personal Property? (TMK art. 219 – 222)
Acquired property consists of the assets that spouses acquire in return for value during the marriage. According to Article 219 of the Turkish Civil Code (TMK), examples of acquired property are as follows:
- Income earned in exchange for work (salary, bonus, wages, etc.)
- Payments received from social security institutions or funds (including retirement bonuses)
- Income derived from personal property (for example, rent or interest)
- Values replacing acquired property (for example, a new property bought with the proceeds from the sale of acquired property)
- Compensation (such as loss of earnings)
Personal property, on the other hand, is governed by Articles 220 and 221 of the Turkish Civil Code (TMK). Examples of personal property:
- Assets owned before marriage
- Assets acquired through inheritance or donation (though the income generated from these assets is considered acquired property)
- Claims for non-pecuniary damages
- Items for personal use (personal mobile phone, clothing, etc.)
- Values in substitution of personal chattels
This distinction forms the basis of lawsuits such as claims for contribution or claims for value increase. For example, if one of the spouses financially contributed to the other's house during the marriage, they can claim a receivable according to the rate of contribution.
Therefore, in cases regarding the liquidation of the property regime to be filed after divorce, it is of great importance to determine whether each item of property is acquired property or personal property. The parties must support their claims with concrete documents and present witness evidence, if any.
How is a Property Regime Determined? (Turkish Civil Code art. 203 – 205)
Spouses can choose one of the above regimes by means of a property regime agreement drawn up before a notary public either before or during the marriage. According to Article 203 of the Turkish Civil Code (TMK), for this agreement to be valid, it must be drawn up by a notary public and contain the declarations of intent of both spouses. If no agreement is made, the legally valid participation regime in acquired property shall apply.
Property Division After Filing for Divorce (Turkish Civil Code Art. 225)
Assets acquired after the filing of a divorce petition are no longer considered acquired property. This is because, pursuant to Article 225 of the Turkish Civil Code, the date on which the property regime terminates is the day the divorce proceedings are filed. Therefore, all acquisitions made after the divorce process has commenced are deemed personal property and are not included in the liquidation.
In practice, this point is frequently overlooked, and there is often a desire to share the assets acquired by the spouses during the divorce proceedings as well. However, Article 225 of the Turkish Civil Code (TMK) clearly stipulates that these assets cannot be evaluated as acquired property.
Property Division in Cases of Infidelity and Adultery (Turkish Civil Code art. 229)
In divorce on the grounds of adultery The issue of the property regime is very important. If it is established that the unfaithful spouse intended to harm the other spouse's assets, transfers made under Article 229 of the Turkish Civil Code (TMK) are included in the division of acquired property. In particular, if the unfaithful spouse has concealed assets in a way that reduces the other party's rights due to the property regime, these assets can be recovered.
Property Regime Provisions in the Contested Divorce Protocol (Turkish Civil Code art. 184/3)
Contested divorce Provisions regarding the property regime can be made in the protocol. According to Article 184/3 of the Turkish Civil Code (TMK), provisions concerning the division of property shall be valid on condition that the judge approves this protocol and the parties are present of their own free will. In this protocol, the parties may determine the division by mutual agreement among themselves. However, for the agreement to be valid, the protocol must be clear, understandable and free from vitiation of consent.
Division of Inherited Assets in Divorce (Turkish Civil Code art. 220)
Heritage The division of goods acquired through inheritance in a divorce is considered personal property within the scope of Article 220 of the Turkish Civil Code. Therefore, inherited goods do not fall within the scope of the acquired property regime. However, the income derived from these goods (such as rental income or interest) can be considered acquired property.
Regime of Participation in Acquired Property and Scope of Application (Turkish Civil Code art. 243 – 254)
The regime of property division with shared ownership is regulated in Article 243 and subsequent articles of the Turkish Civil Code. This regime is a hybrid model where spouses can both protect their personal property and effect liquidation over their jointly used assets. In this regime, spouses can receive a shared stake in terms of property held in co-ownership and assets dedicated to family use. It is an effective solution regarding property division upon separation, particularly in long-term marriages.
Frequently Asked Questions: Frequently Asked Questions About Property Division
1. In a divorce, who gets to keep the house bought after marriage?
If the house was purchased within the scope of acquired property (for example, if it was bought with a mortgage and the payments were made during the marriage), each of the spouses acquires a right to a claim over the residual value. However, if the house is the personal property of only one of the spouses and the other contributed, the latter may file a lawsuit for a contribution receivable.
2. My spouse and I are getting a divorce; I bought the car, but it is registered in their name. Can I claim any rights to it?
Whose name the property is registered in is not solely decisive. If it is an acquired property, the spouse may have a right to a claim. The judge makes a decision based on the conditions under which the property was acquired.
3. Are assets acquired before marriage divided?
No. Assets acquired before marriage are personal property. However, returns derived from these assets, such as rental income, can be considered as property acquired during the marriage.
4. I have been cheated on, are the sales made by my spouse deemed invalid?
If the spouse acted with the intention of concealing assets and this falls within the scope of Article 229 of the Turkish Civil Code (TMK), the transfers made are taken into account in the liquidation and can be added to the other party's claim.
5. After filing for divorce, my spouse bought a new flat. Will this be shared?
No. According to Article 225 of the Turkish Civil Code (TMK), the property regime terminates as of the date of the lawsuit. Assets acquired after this date are personal property.
6. Is an inherited house divided in the event of divorce?
No. Inherited property is personal property. However, if the rental income of this house was obtained during the marriage, this income is acquired property and can be shared.
7. We have made a property regime agreement, but my spouse is not complying with it; what can I do?
If property regime agreements are valid and there is no vitiation of consent, they are binding. The court gives its judgement in accordance with this agreement. If the party failing to implement it acts in bad faith, compensation may also come into question.
Conclusion: How is Property Divided in Marriages?
Property division in marriages varies according to the chosen property regime, the way assets were acquired and the form of divorce. Many items such as assets bought with the sale of property acquired during the marriage, inherited values and assets acquired before marriage must be carefully evaluated. Before filing a property division lawsuit legal support taking it can prevent future grievances.
