PARTICIPATION AND CONTRIBUTION CLAIM LAWSUIT

What Are Participation and Contribution Claims?

A participation claim serves as a calculation tool during the division of assets classified as acquired property between spouses. A contribution claim, on the other hand, is the right to receive compensation for a spouse’s contribution to the acquisition, improvement, or preservation of the other spouse’s personal property.

What Is a Participation and Contribution Claim Lawsuit?

a. Participation Claim Lawsuit

A participation claim lawsuit is a legal action in which spouses assert their right to claim a share of assets classified as acquired property. In such a lawsuit, the plaintiff requests the calculation of the other spouse’s participation claim. This calculation is made by subtracting the debts related to the acquired assets from their total value and then dividing the remainder by two.

b. Contribution Claim Lawsuit

A contribution claim lawsuit is a legal action concerning the right of a spouse to claim compensation for their contribution to the acquisition, improvement, or preservation of the other spouse’s personal property during the marriage.

It should be noted that, according to the rulings of the Turkish Court of Cassation (Yargıtay), the term “contribution claim” was used for cases before January 1, 2002, whereas the term “share of value increase” has been used for cases after this date.

Statute of Limitations in Participation and Contribution Claim Lawsuits

In participation and contribution claim lawsuits, the statute of limitations is 10 years from the finalization of the relevant divorce case. Therefore, if a spouse does not file a claim within 10 years after the divorce judgment becomes final, this right expires due to the statute of limitations.

Burden of Proof in Participation and Contribution Claim Lawsuits

The burden of proof in participation and contribution claim lawsuits is regulated in Article 222 of the Turkish Civil Code as follows:

“Anyone who claims that a specific property belongs to one of the spouses is obliged to prove their claim. Property whose ownership cannot be proven to belong to either spouse is considered joint property. All property of a spouse is considered acquired property unless proven otherwise.”

Jurisdiction and Competent Court in Participation and Contribution Claim Lawsuits

In lawsuits related to participation and contribution claims, the competent court is the family court, while the authorized court is explained in Article 214 of the Turkish Civil Code (TMK) as follows:

“In lawsuits concerning the liquidation of a property regime between spouses or heirs, the following courts are authorized:”

1. In the event that the property regime ends due to death, the court of the deceased’s last residence is competent.
2. In cases of divorce, annulment of marriage, or a judicial decision on separation of property, the competent court for these cases applies.
3. In other cases, the court of the defendant spouse’s residence is competent.

In this regard, the parties may require a divorce lawyer, specifically an Antalya divorce lawyer, to file and pursue the relevant lawsuit.

Frequently Asked Questions

1.Can a Precautionary Measure Be Taken in a Participation Claim?

In Turkish law, a precautionary measure is a temporary protection taken to secure the enforcement of a right or claim. In lawsuits concerning participation and contribution claims, a precautionary measure can also be issued regarding the assets subject to the lawsuit, in a way that safeguards the rights and claims to be obtained.

2.Can a Participation Claim Be Claimed in the Event of the Death of a Spouse?

In the event of the death of one spouse, the surviving spouse is a creditor due to the participation and contribution claim and a debtor by virtue of being an heir. Therefore, when calculating the surviving spouse’s right to claim, the amount must be reduced in proportion to their share of the inheritance.

3.Which Assets Are Included in the Calculation in Participation and Contribution Claim Lawsuits?

In a participation claim lawsuit, the assets that can be claimed, i.e., acquired property, include:

• Gains earned by a spouse through work,
• Income from social security or aid institutions,
• Severance pay,
• Income from personal property, and
• Values that replace acquired property.

In a contribution claim lawsuit, as mentioned, the subject is any personal property of one spouse to which the other spouse contributed in acquisition, improvement, or preservation.

According to Article 220 of the Turkish Civil Code (TMK), personal property is defined as follows:

‘’1. Property used solely for the personal use of one of the spouses,

2. Property owned by one of the spouses at the beginning of the property regime or property acquired later by one spouse through inheritance or any form of gratuitous gain,
3. Claims for moral compensation,
4. Values that replace personal property.

4.Can a Participation and Contribution Claim Lawsuit Be Filed for Inherited Property?

The individuals entitled to file a participation and contribution claim lawsuit, that is, to make a claim, are the spouse and the heirs of the deceased who are entitled to a share of the inheritance. As a result, the spouse and heirs can file the relevant lawsuit against a third party who acquired the property gratuitously or against that person’s heirs.

5.Are Assets Acquired After Filing a Divorce Case Included in the Property Regime, and Can a Claim Be Made?

The termination of the property regime legally occurs with the filing of the divorce case. Accordingly, assets acquired after the divorce case is filed are not included in the property regime, and therefore, no claim can be made for them.

6.In Participation and Contribution Claim Lawsuits, Which Date’s Value of the Real Estate Is Used for Calculation?

In participation and contribution claim lawsuits, the market value (current value) of the assets existing at the time the property regime ends is taken into account, and the calculation is made based on this value.

7.How Is the Participation and Contribution Claim Calculated for Houses Purchased with a Loan?

For houses purchased with a loan, the payments and loan installments made during the period outside the property regime and during the property regime are proportionally considered when calculating the participation and contribution claims.

8.Can One Waive the Participation and Contribution Claim?

It should be noted that it is legally possible to waive a participation and contribution claim. However, such a waiver must be made after the termination of the property regime and in a clear (explicit) manner.

9.Can the Participation Claim Be Reduced Due to Adultery?

As in cases of divorce due to intent to harm life, in divorces caused by adultery, the judge may reduce or eliminate the participation claim of the at-fault spouse (Turkish Civil Code, Article 236/2). Accordingly, the application of this provision depends entirely on the court’s decision being based on adultery.

10.When Does Interest Accrue on Participation and Contribution Claims?

As a rule, interest on participation and contribution claims begins to accrue from the date the court issues its decision. This matter is regulated in Article 239, paragraph 3 of the Turkish Civil Code (TMK) as follows:

“Unless otherwise agreed, interest shall be applied to the participation claim and the share of value increase starting from the completion of the liquidation; if the circumstances require, security may also be requested from the debtor.”

Some Court of Cassation (Yargıtay) Decisions Regarding Participation and Contribution Claim Lawsuits

1. “1- Considering the contents of the file, the case documents, and the trial minutes, and taking into account that the existing evidence was evaluated by the court and no error was found in this assessment, as well as the balance of interests between the parties and compliance with the principles of law and equity set forth in Article 4 of the Turkish Civil Code (TMK) [Article 50/2 of the Turkish Code of Obligations], all appeals by the plaintiff’s attorney and the defendant’s appeals not covered by the following clause were rejected. 2- Regarding the defendant’s appeal concerning the start date of interest; the 22,168 TL awarded in favor of the plaintiff constitutes a participation claim under Articles 219, 231, and 236 of the TMK. In such cases, interest should have accrued from the date of the court’s decision in accordance with Article 239/2 of the TMK, but it was incorrectly calculated from the date of filing and amendment of the lawsuit, which is contrary to the law. However, since this issue does not require a retrial, it was deemed appropriate to correct and uphold the decision (Code of Civil Procedure [HUMK] Art. 438/7, New Code of Civil Procedure [HMK] Art. 370/2).” (Turkish Court of Cassation, 8th Civil Chamber, Decision dated 16.03.2016, Case No. 2014/22826, Decision No. 2016/4777)
2. “1- Considering the contents of the file, the case documents, and the trial minutes, and taking into account that the existing evidence was evaluated by the court and no error was found in this assessment, as well as the balance of interests between the parties and compliance with the principles of law and equity set forth in Article 4 of the Turkish Civil Code (TMK) [Article 50/2 of the Turkish Code of Obligations], all appeals by the defendant’s attorney were rejected. 2- Regarding the plaintiff’s attorney’s appeal concerning the start date of interest; the 25,000.00 TL awarded in favor of the plaintiff constitutes a contribution claim. In such cases, interest should accrue from the date of filing the lawsuit, but it was incorrectly calculated from the date of the court’s decision, which is contrary to the law. However, since this issue does not require a retrial, it was deemed appropriate to correct and uphold the decision.” (Turkish Court of Cassation, 8th Civil Chamber, Decision dated 06.04.2016, Case No. 2014/26080, Decision No. 2016/6147)
3. “The court ruled that the 19/30 share of the property registered in the name of the defendant, acquired during the marital union, constituted the defendant’s acquired property as of the acquisition date, and that the plaintiff’s participation claim amounted to half of this share, i.e., 19,495.55 TL. However, after reviewing the entire case file and evidence, it was found that there is a discrepancy between the two expert appraisal reports regarding the property value. Upon examining the appraisal reports prepared by the civil engineer expert following inspections conducted on … and on …, dated 07.03.2013, it was observed that the value assessments of the two experts differed. Despite this, the court based its judgment solely on the appraisal report dated … without resolving the discrepancy between the two reports, which was incorrect. What the court should have done, in line with the aforementioned principles, was to appoint two civil engineers and one property expert, conduct a re-inspection of the property, and perform a new expert evaluation to resolve the discrepancy in value. Additionally, the current market value of the property as close as possible to the decision date should have been determined, and if necessary, an accounting expert review should have been conducted. The final decision should then have been made taking into account procedural acquired rights in favor of the plaintiff arising from the initial judgment. For these reasons, the judgment needed to be overturned.” (Turkish Court of Cassation, 8th Civil Chamber, Decision dated 20.01.2016, Case No. 2014/19306, Decision No. 2016/605)
4. “1- Considering the contents of the file, the case documents, the trial minutes, and that the existing evidence was evaluated by the court and no error was found in this assessment, all appeals by the defendant’s attorney and those of the plaintiff’s attorney not covered by the following clause were dismissed. 2- Regarding the other appeals of the plaintiff’s attorney; a. Although the court made a reduction with written justification based on the total amount of receivables determined in favor of the plaintiff for the property and vehicle subject to liquidation, a review of the file records shows that the 584/2344 share of parcel 347 was acquired on 31.05.2001, and the vehicle with license plate … was acquired on 05.01.2010 in the name of the defendant. The property in question was purchased during the period when the separation of property regime was in effect between the spouses and registered in the name of the defendant. According to Article 179 of the Turkish Civil Code No. 4721, in effect at the date of the decision, the provisions applicable to the property regime to which the spouses are subject are applied in the liquidation of the property regime. In this context, the 743-numbered TKM in effect at the time the property subject to liquidation was purchased did not include a provision corresponding to Article 236/2 of Law No. 4721, which came into force on 01.01.2002. Therefore, it is not correct to make a reduction in the plaintiff’s contribution claim based on adultery as the cause of divorce.” (Turkish Court of Cassation, 8th Civil Chamber, Decision dated 17.01.2017, Case No. 2015/5939, Decision No. 2017/367)
5. “According to the review conducted in light of the legal regulations and principles explained above; when the entire case file is evaluated together, although the First Instance Court and the Regional Court of Justice accepted that the transfer of the defendant’s property to a third party in 2014 was not intended to reduce the plaintiff’s participation claim and rejected the plaintiff’s claim, witness statements in the divorce case file indicate that the parties separated after an argument in October 2014, reconciled afterward, but fell into disagreement again toward the end of 2015 and separated, subsequently filing for divorce and ultimately divorcing. It is also noted that after the October argument, the defendant transferred the property to a third party on 11.11.2014, and later, after the divorce, regained the property in 2018. Considering these facts, it must be accepted that the defendant transferred the property in question with the intent to reduce the plaintiff’s participation claim. Accordingly, all collected or to-be-collected evidence in the file should have been evaluated together, and a decision—either in favor or against the plaintiff—should have been made regarding the plaintiff’s claim for participation in the appreciation of the property. Rejecting the plaintiff’s participation claim due to a flawed assessment was therefore incorrect.” (Turkish Court of Cassation, 8th Civil Chamber, Decision dated 12.04.2021, Case No. 2020/3418, Decision No. 2021/3357)