WHAT IS A MARRIAGE CONTRACT?
A marriage contract, also known as a matrimonial property regime agreement, is a type of contract in which spouses determine which property regime will apply to the assets they have acquired or will acquire before or during their marriage.
According to Article 202 of the Turkish Civil Code, the default property regime between spouses is the legal regime of participation in acquired property. However, the legislator did not make this mandatory and allowed spouses the option to choose one of the other property regimes provided by law.
Turkish Civil Code, Article 202: “The application of the participation in acquired property regime between spouses is the default. Spouses may, through a property regime agreement, adopt one of the other regimes specified in the law.”
Accordingly, spouses have the right, either before marriage or during the marriage, to freely choose one of the other property regimes regulated by the Turkish Civil Code—such as separation of property, modified separation of property, or community of property—through a marriage contract.
HOW IS A MARRIAGE CONTRACT MADE?
The process of preparing a marriage contract begins with the parties first deciding which marital property regime they wish to apply. According to the Turkish Civil Code, the participation in acquired property regime is the legal default regime, but the parties are free to choose any property regime they desire.
Once the parties decide which property regime to apply, the contract text must be prepared and submitted to a notary. The contract can be prepared by the parties themselves or directly in the presence of a notary.
Upon submission of the contract to the notary, it is reviewed to ensure that the parties have freely expressed their will. Once confirmed, the contract is either approved or officially executed. During notary procedures, it is mandatory for both parties to be present and to sign the contract. Additionally, a marriage contract can also be made if the individuals getting married provide written notice to the marriage registrar specifying which property regime they have chosen. (Marriage Regulation, Additional Article 1)
Marriage contracts have effects from the date they are made and apply prospectively. If the contract is executed before the marriage, its provisions take effect from the date of the marriage; if made during the marriage, the provisions take effect from the date of notarization.
WHEN IS A MARRIAGE CONTRACT MADE?
Turkish Civil Code, Article 203:
“A marital property regime agreement can be made either before or after marriage. The parties can only choose, modify, or revoke the property regime within the limits set by law.”
As explicitly stated in the law, the parties have the right to make a choice regarding the property regime through a marital agreement either before marriage or during the marriage. Therefore, the agreement can be made not only before marriage but also at any time while the marital union continues.
Validity Requirements of a Marital Property Agreement
Through a marital property agreement, the parties can choose one of the property regimes stipulated by law or completely change the existing property regime. However, this right is subject to certain procedures and conditions:
1. The parties must have mutual consent:
For the agreement to be valid, it must first be prepared in accordance with the mutual will and wishes of the parties and must be signed by the parties themselves. Therefore, a marital property agreement that does not reflect the will of one of the parties or is prepared without their signature has no legal effect.
2. The parties must have legal capacity:
According to Article 204 of the Turkish Civil Code, a property regime agreement can only be made by those with legal capacity. For the validity of the agreement, the consent of the legal representative is required for minors and those under legal restriction.
Who has legal capacity is regulated under Article 13 of the Turkish Civil Code. The relevant article states: “Anyone who is not deprived of the ability to act rationally due to minority, mental illness, mental weakness, intoxication, or similar reasons has legal capacity according to this Law.”
3. The agreement must be drawn up or approved before a notary:
According to Article 205 of the Turkish Civil Code, a marital property agreement must be executed or approved at a notary. Notarization or approval is mandatory for its validity. Marital property agreements made verbally or in a simple written form between spouses have no legal effect. The only exception is when the parties notify the marriage officer in writing about the chosen property regime at the time of marriage registration.
4. The chosen property regime must be one of the regimes provided by law:
Article 202 of the Turkish Civil Code states: “Spouses may, by property regime agreement, accept one of the other regimes stipulated by law.” Therefore, the property regime chosen in a marital agreement can only be one of the legally recognized regimes. Spouses cannot agree to a different property regime among themselves. If a property regime outside those regulated in the Civil Code is chosen, the agreement will not be valid.
The property regimes regulated in the Civil Code are:
- Participation in acquired property regime
- Separation of property regime
- Separation of property with sharing regime
- Community property regime
For the validity of the agreement, the property regime chosen by the parties must be one of these four regimes.
- Participation in Acquired Property Regime: For marriages after January 1, 2002, if the spouses do not choose a specific property regime, the statutory regime that applies is the participation in acquired property regime. Under this regime, both spouses have an equal right to share all property acquired during the marriage that is not considered personal property.
- Separation of Property Regime: In the separation of property regime, the property acquired by each spouse during the marriage remains completely separate. Each spouse is the sole owner of their property and has the exclusive right to use, manage, and dispose of it. The other spouse has no claim or rights over this property.
- Separation of Property with Sharing Regime: In this regime, each spouse has full authority to use, benefit from, and manage their own property. Unlike the standard separation of property regime, in the sharing regime, the management and division of the property acquired during the marriage is considered. Assets designated for the family, household items acquired for joint use, and similar property are shared equally between the spouses.
- Community Property Regime: In this regime, all property of the spouses is considered joint property, and the spouses own it under joint ownership. Therefore, neither spouse can dispose of the property individually. Assets legally recognized as personal property are excluded from joint ownership.
IS IT MANDATORY TO HAVE A MARRIAGE CONTRACT?
It is not legally mandatory to have a marriage contract. Article 202 of the Turkish Civil Code establishes that the default property regime between spouses is the participation in acquired property regime. Therefore, it is not obligatory for spouses to enter into a marriage contract, and if no contract is made, the applicable property regime will be the participation in acquired property regime.
However, the participation in acquired property regime applies to marriages conducted after January 1, 2002, whereas for marriages conducted before this date, the separation of property regime is considered the default property regime.
WHAT CAN BE REGULATED BY A MARRIAGE CONTRACT?
The subject of a marriage contract is the determination of the property regime to be applied between the spouses. With this contract, the parties can only decide which property regime will apply between them. Matters outside the scope of the property regime, such as alimony, custody, or adultery, cannot be included in the marriage contract. Even if such provisions are written into the contract, they are legally considered invalid.
CAN A MARRIAGE CONTRACT BE AMENDED?
A marriage contract can be amended based on the mutual consent of both spouses. However, during the amendment process, it is mandatory that both spouses have legal capacity. The Turkish Civil Code does not impose any time limit regarding the amendment of a marriage contract. Spouses are free to amend their marriage contract at any time.
DURATION AND CANCELLATION OF A MARRIAGE CONTRACT
A marriage contract is not legally subject to any time limit and remains valid until one of the spouses dies, the marriage ends in divorce, or the parties create a new marriage contract. However, in some cases, one of the spouses may claim the invalidity of the contract or request its cancellation.
It is possible for a marriage contract to be canceled at the request of one of the spouses. However, the request must be based on a justified and valid reason. Examples of valid reasons include the contract being contrary to the law, not reflecting the will of one of the parties, or being drawn up based on misleading information.
To request the cancellation of a marriage contract, the spouse must apply to the Family Court in their place of residence and explain the reasons for cancellation based on concrete and legal grounds. The court will decide by taking into account the reasons provided by the requesting spouse, the effect of the contract on the legal relationship between the parties, and other applicable legal provisions.
SUPREME COURT DECISIONS
“…In the liquidation of the matrimonial property regime, the provisions of the regime to which the spouses are subject are applied (TMK Article 179). In this context, determining the applicable matrimonial property regime during liquidation is important. The partnership property regime is one of the elective property regimes that the legislator allows spouses to choose under both the former and the new Civil Code. Spouses can validate the partnership property regime between them through a matrimonial property agreement drawn up in accordance with the validity requirements. The agreement is effective for the property acquired after its execution.
Article 10, paragraph 1 of Law No. 4722 on the Entry into Force and Implementation of the Turkish Civil Code provides: “For spouses married before the entry into force of the Turkish Civil Code, the property regime to which they were subject until that date continues. If the spouses do not choose another property regime within one year from the date the Law enters into force, they are deemed to have chosen the legal property regime, effective from that date.” Paragraph 4 further states: “In the event that the property unity or partnership property regime transforms into the legal property regime under the above provisions, the provisions of the Turkish Civil Code regarding the termination of the relevant property regime shall apply.”
In light of these principles, when the concrete dispute is examined, it is established that the partnership property regime agreement dated 02.03.1990 was validly executed. Accordingly, between the marriage date of 17.02.1975 and the agreement date of 02.03.1990, the legal property regime of separation of property applied; from the agreement date to 01.01.2002, the partnership property regime chosen by agreement applied; and from 01.01.2002 until the death of the decedent on 17.07.2015, the legal property regime of participation in acquired property applied.
The immovable property subject to liquidation was acquired in 1994 when the partnership property regime between the spouses was valid. Even though it is registered in the name of the decedent in the land registry, it must be considered a joint property of the spouses. The partnership property regime between the spouses ended not with the death of the decedent but upon the entry into force of the Turkish Civil Code in accordance with Article 10/1 of the Law on the Entry into Force and Implementation of the Turkish Civil Code. Therefore, considering the clause in the agreement stipulating that the surviving spouse will inherit the partnership property upon the death of a spouse, the Regional Court of Appeal’s Fourth Civil Chamber rightly rejected the plaintiff’s claim for registration of the entire property on the grounds that the partnership property regime does not end with death.
However, the plaintiff’s claim is not limited to a single clause in the agreement but concerns the liquidation of the disputed property in accordance with the entirety of the partnership property agreement executed at the notary with the decedent. Considering Article 10/4 of Law No. 4722, liquidation should be conducted according to the partnership property regime validly chosen by the parties. The Regional Court of Appeal’s assessment that no request for liquidation was made under Articles 211 et seq. of the Turkish Civil Code No. 743 was therefore erroneous.
Since the claim pertains to liquidation according to the valid partnership property agreement, the property should be considered partnership property as of its acquisition date. In accordance with Articles 211 et seq. of the Turkish Civil Code No. 743, as the parties did not agree on a different sharing ratio, each spouse has a half share in the partnership property. Therefore, the partial acceptance of the claim should have led to the registration of half of the property to the plaintiff arising from the partnership property regime, and for the remaining half, the annulment of the decedent’s registration in favor of the defendants’ shares should have been carried out. The complete rejection of the claim based on the written reasoning was therefore incorrect…” (Supreme Court, 8th Civil Chamber, 2019/6537 E., 2020/1753 K., 25.02.2020)
“…Article 203, paragraph 1 of Law No. 4721 provides that a matrimonial property agreement can be made either before or after marriage, and that the parties may only choose, abolish, or modify the property regime within the limits set by law. Paragraph 1 of Article 179 of the same law stipulates that in the event of divorce, the provisions relating to the regime to which the spouses are subject shall apply in the liquidation of the property regime. Article 10 of Law No. 4722 provides two exceptions for spouses who married before the entry into force of Law No. 4721, specifying that the legal property regime of participation in acquired property will be valid from the date of marriage.
In the present case, it is understood that the spouses married on 22.05.1967 and signed a matrimonial property regime agreement under the title “Property Regime Amendment Agreement” on 20.07.2015 with journal number 12057. According to all these explanations, under Article 203 of Law No. 4721, the spouses can only regulate the property regime within the limits set by law, and except for the exceptions in Article 10 of Law No. 4722, they cannot make a property regime agreement with retroactive effect.
Therefore, the provisions in the “Property Regime Amendment Agreement” dated 20.07.2015 with journal number 12057, which purport to have retroactive effect, are invalid, and the agreement is valid only from the date it was executed. In other words, only the provision regarding the application of the separation of property regime from the date of the agreement is valid. The Regional Court of Appeal’s decision to dismiss the case with written reasoning was erroneous and required reversal…” (Supreme Court, 2nd Civil Chamber, 2023/7024 E., 2024/6794 K., 03.10.2024)
“…The spouses married on 28.08.2002 and were divorced upon the finalization of the court decision approving the divorce case filed on 30.12.2010. The matrimonial property regime ended as of the date the divorce case was filed (Turkish Civil Code, Art. 225/final paragraph). On 15.09.2006, the parties signed a separation of property agreement at the 28th Notary Office.
It should also be noted that, according to Article 10/1 of the Law on the Entry into Force and Implementation of the Turkish Civil Code (Law No. 4722), for spouses who married before the entry into force of the Turkish Civil Code, the property regime to which they were subject until that date continues as is. If the spouses did not choose another property regime within one year from the entry into force of the law, they are deemed to have selected the legal property regime of participation in acquired property, effective from 01.01.2002. Pursuant to this mandatory provision and Article 10/3 of the same law, spouses can only agree, within the one-year period, that a matrimonial property agreement will make the legal property regime of participation in acquired property effective from the date of marriage.
When these provisions are considered together, it is clear that the spouses cannot retroactively choose a separation of property regime. In other words, the parties cannot, with retroactive effect, choose any other elective property regime provided by law (community property, separation of property, or separation of property with sharing) to be effective from the date of marriage. Therefore, any such retroactive determination is null and void, and this legal restriction, which pertains to public order, cannot be circumvented by principles of contractual freedom. Any subsequent agreements regarding the adoption of a property regime other than participation in acquired property can only have prospective effect, applying from the date they are executed onward.
Despite this legal requirement, the plaintiff claimed that the separation of property agreement between the parties, executed as a formal arrangement, was invalid due to being signed under duress (Turkish Code of Obligations, Art. 37 et seq.). However, the evidence presented was not examined under Article 203/1-c of the Civil Procedure Code (Law No. 6100), and the court incorrectly accepted that the agreement was retroactively valid from the date of marriage.
The correct procedure for the court is first to examine the parties’ evidence and evaluate whether the separation of property agreement is valid. If the agreement is found valid, then it should be recognized that the legal property regime of participation in acquired property (TCC Arts. 218-241) was effective from the date of marriage until 15.09.2006, when the property regime agreement was executed, and the evidence should be assessed accordingly to reach a proper decision…” (Supreme Court, 8th Civil Chamber, 2014/9332 E., 2015/17436 K., 05.10.2015)
“…It is understood that the agreement made between the parties at the Notary under the name of a marriage contract does not constitute a valid property regime selection agreement in accordance with the law and therefore does not produce legal effects. Accordingly, based on the contents of the file, the case documents and minutes, and the mandatory reasons explained in the Supreme Court ruling, the request for rectification of the decision, which is unfounded and does not fall under any of the cases listed in Article 440 of the Ottoman Civil Procedure Code (HUMK), is REJECTED…” (Supreme Court, 8th Civil Chamber, 2015/17013 E., 2016/3539 K., 29.02.2016)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
ANTALYA FAMILY LAWYER – ANTALYA LAWYER
A marriage contract is one of the most important legal arrangements designed to prevent potential issues spouses may face regarding property division, inheritance rights, and financial matters during and after the marriage. Couples who wish to draft a marriage contract can work with a specialized lawyer to ensure that the legal processes are managed correctly while securing their rights. Professional legal support ensures that a marriage contract is prepared in a way that is legally valid, fair, and tailored to the needs of the parties.
At our law office in Antalya, you can contact us through the communication section to receive the necessary legal support and consultancy during the marriage process and schedule an appointment with our team of professional lawyers.
