PROPERTY DIVISION IN DIVORCE

How Is Property Division in Divorce Cases?

Filing for divorce is a legal action that introduces the need for property regime liquidation and involves the exercise of a right that creates a new situation. Accordingly, the parties may file for divorce based on one or more specific or general reasons. Some of these reasons may be related to fault, and they can be specific and absolute, while others may be unrelated to fault, general, and relative reasons.

As mentioned, with the filing of a divorce case, there arises the need for a property division liquidation lawsuit within the framework of the property regime that the parties were subject to during their marriage. Regarding the property regime, the parties will either be subject to one of the optional regimes that they can specifically choose or the legal property regime determined by the legislator. As regulated in Article 202 of the Turkish Civil Code, “The application of the participation in acquired property regime between spouses is the primary rule. The spouses may accept one of the other regimes specified by law through a property regime contract.”

What Are the Types of Property Regimes?

As mentioned in Article 202 of the Turkish Civil Code (TMK), property regimes are divided into two types: the participation in acquired property regime and optional property regimes. The participation in acquired property regime is essentially the statutory regime defined by the legislator, which applies to couples married after January 1, 2002, unless they establish a different property regime agreement. In other words, couples married after January 1, 2002, will automatically be subject to the statutory property regime unless they agree to a different one.

Furthermore, couples married before January 1, 2002, will be subject to a separation of property regime regarding assets acquired before this date, and a participation in acquired property regime for assets acquired after January 1, 2002. The property sharing in the legal process initiated will be evaluated according to these rules.

Optional property regimes are divided into three subcategories: separation of property, shared separation of property, and property partnership. Couples who wish to be subject to one of the optional property regimes must mutually agree and establish a property regime agreement, which is commonly known as a “prenuptial agreement” by the public, and can only affect future actions (as stated in the decision of the 8th Civil Chamber of the Court of Cassation dated 16/01/2014, 2014/9332 and 2015/17436). Alternatively, they must submit a written notice of their choice of property regime during the marriage application, in reference to Article 205/1 of the Turkish Civil Code (TMK).

Additionally, although the property regime agreement can be established at any time during the marriage process, it is a legal action subject to formal requirements, as stated in TMK Article 205/1: “The property regime agreement is made in the form of a notarial deed or by approval.”

1.What is the Participation in Acquired Property Regime?

The Participation in Acquired Property Regime is the legal property regime that couples automatically accept if no property regime contract is made. Under this regime, there are two types of property: personal property and acquired property. Accordingly, couples under the Participation in Acquired Property Regime are entitled to half of the property acquired by each other during the marriage, but they cannot claim any rights to each other’s personal property. The legislator has defined the acquired and personal properties as follows:

According to Article 219 of the Turkish Civil Code (TMK), acquired properties…
>>>The services performed by one spouse in exchange for their work…

• Payments made by social security or social assistance institutions, or by funds and similar organizations established for the purpose of assisting employees,
• Compensation paid due to the loss of working capacity,
• Income from personal assets,
• Values replacing acquired assets.

>>>According to Article 220 of the Turkish Civil Code (TMK), personal assets are:

• According to Article 220 of the Turkish Civil Code (TMK), personal assets are:
• Items that are for the personal use of one spouse only,
• Property values that belong to one spouse at the beginning of the marriage or those acquired by one spouse later through inheritance or any form of gratuitous acquisition,
• Claims for moral compensation,
• Values replacing personal assets.

It should be known that if it is claimed that an asset is a personal asset during the property liquidation process but cannot be proven, it will be considered as acquired property. In this regard, Article 222/3 of the Turkish Civil Code (TMK) states: “All of a spouse’s assets are considered acquired property until proven otherwise.”

2.What is the Separation of Property Regime?

The Separation of Property Regime is the marital property regime that couples should choose if they want to retain the rights to dispose of, manage, and benefit from their assets (according to TMK Article 223) as if they were not married, and if they do not want each other to have any reciprocal rights over their property. In the event of a divorce under this regime, there will be no property division. In other words, under the separation of property regime, in the case of divorce, movable or immovable property, or any other assets, will be considered the personal property of the spouse in whose name the asset is registered.

3.What is the Shared Separation of Property Regime?

The Shared Separation of Property Regime has the characteristics of an intermediate regime between the sharp boundaries of the participation in acquired property and the separation of property regimes. In the shared separation of property, the assets are divided into two categories: shared and personal property. In this regime, any asset that cannot be proven to be personal or is considered insufficiently proven will be deemed to be included in the shared ownership of the parties. Additionally, the parties are fully responsible for their own debts.

4.What is the Property Partnership Regime?

In the property partnership regime, all assets and income, except for the personal assets of the parties, constitute the partnership property. In partnership property, the principle of joint ownership applies, and each party has an equal share in the property they contribute to the partnership, regardless of the amount they contributed. Therefore, in the general property partnership, the independent ownership rights of the spouses over the property they contributed to the partnership are eliminated.

The Procedure of Trial in Property Regime Cases

After the divorce case is concluded, the parties can file a lawsuit regarding the division of property, or they can file a lawsuit regarding their property regime rights at the same time as the divorce case. In such a case, the lawsuit regarding the property regime will make the divorce case a pending issue. The filing of this lawsuit depends on the submission of a petition prepared according to legal procedures, specifying which properties are to be divided and how. In this regard, the party or parties may need a divorce lawyer, such as an Antalya divorce lawyer, to file and follow up on the relevant case.

After the lawsuit is filed, the relevant court will examine the financial documents, such as the parties’ bank records and title deeds, to identify their assets, and based on its decision, the court will arrange the property division. For example, if there is an unequal division of acquired property between spouses who are subject to the legal property regime, the court may opt for an adjustment method for the relevant property.

The court responsible for property regime cases is the family court, and in areas without a family court, the civil court of first instance. As regulated in Article 214 of the Turkish Civil Code (TMK), the competent court for the dissolution of a property regime is:

1. The court of the deceased’s last place of residence in the case of the property regime ending with death.
2. In the case of divorce, annulment of marriage, or the court’s decision for property separation, the court with jurisdiction over these cases.
3. In other cases, the court of the defendant spouse’s place of residence.

The Liquidation Process in Property Regime Cases

As mentioned above, following the divorce, there arises the need to file a property regime lawsuit. In the property regime case, after determining which property regime the parties were subject to during their marriage or within a specific period, the next step is to proceed with the liquidation, or classification. This classification means separating personal and acquired property in the acquired property regime, separating shared and personal property in the shared property separation regime, and separating personal and partnership property in the property partnership regime. As is known, in the separation of property regime, there is no distribution, hence no liquidation. Additionally, there are important concepts to be considered during the property regime liquidation process, such as the participation share claim, contribution share claim, and value increase share claim.

First and foremost, the participation share claim plays a crucial role in the distribution of the acquired property in divorce cases.

Accordingly, the participation share claim is the process where, taking into account the added values (Article 229 of the Turkish Civil Code) and adjustments (Article 230 of the Turkish Civil Code), the value of the acquired property during the marriage, after deducting the debts, is divided equally between the parties.

The contribution share claim is explained in Article 227 of the Turkish Civil Code as follows: “If one spouse has contributed to the acquisition, improvement, or preservation of a property belonging to the other spouse, without receiving any or appropriate compensation, after the termination of the property regime, they may request a fair amount of compensation based on the proportion of their contribution.”

The value increase share refers to the entitlement of one spouse to a claim for the contribution made by the other spouse, whether in acquiring property, improving existing property, or protecting it during the marriage, as outlined in Article 227 of the Turkish Civil Code.

Frequently Asked Questions

1.Is There a Risk of Hiding Assets in a Property Regime Case?

During the divorce process, one party may engage in actions such as making gratuitous transfers or donations with the intention of hiding assets from the other party. According to the Turkish Civil Code (TMK) Article 229, the following are added as values to acquired property: “1. Gratuitous transfers made by one spouse within one year prior to the termination of the property regime, without the consent of the other spouse, excluding ordinary gifts; 2. Transfers made by one spouse during the continuation of the property regime with the intent to reduce the other spouse’s participation claim. In disputes regarding such transfers or gifts, the court’s decision, provided the lawsuit has been notified to the third party benefiting from the transfer or gift, can also be raised against these third parties.” As stated in this article, such transactions are ruled to be added as values to acquired property. Regarding this matter, as the 8th Civil Chamber of the Court of Cassation stated in its decision dated 24.10.2018, case number 2016/14281, decision number 2018/17838, “…It was found that two real properties subject to liquidation were transferred by sale to the other defendant, who is the brother of the respondent, on the same day, 15.11.2011, approximately 5.5 months before the divorce case date. Therefore, it should be accepted that the transfers were made with the intention of reducing the plaintiff’s participation claim…”
In addition to this, if any risk of asset concealment is to be prevented, a request for “precautionary measures” can be made to the court. By this means, the sale of the assets belonging to the party will be prevented through the precautionary measure placed on the land registry. Furthermore, any actions regarding the family home that the property-owning party may take, which carry the risk of asset concealment, can also be blocked with the “family home annotation” by applying to the relevant land registry office. With the family home annotation, the real estate registered with the annotation on the title deed cannot be sold without the consent of the other spouse. In the decision of the 2nd Civil Chamber of the Court of Cassation, dated 18.11.2024, case number 2014/15235, decision number 2014/23110, the family home annotation is mentioned as follows: “According to Article 194/3 of the Turkish Civil Code in effect at the time the lawsuit was filed, ‘The spouse who does not own the immovable property designated as the family home may request the necessary annotation regarding the home to be placed in the land registry. The family home annotation is placed on the title deed of the immovable property registered in the name of the other spouse, which is designated as the family home and actively used as such. The law provides a limitation that the full ownership of the immovable property designated as the family home must be registered in the name of the other spouse.’”

2.How Are Assets Purchased with Joint Savings Divided After a Divorce?

As mentioned above, the type of matrimonial property regime that a couple is subject to is of significant importance in terms of asset distribution. For example, if a couple subject to the acquired property regime purchases a car with an amount divided between them, the car will be included in the property distribution as joint ownership. Therefore, each party will have a right to claim according to the amount they contributed.

An example of this situation is as follows: Ayşe and Mehmet got married on 01.01.2015 and filed for divorce on 01.01.2020. Their divorce was finalized on 20.05.2023. During the course of the divorce proceedings, Mehmet had purchased a house on 01.01.2014, one year before their marriage, by taking a loan of 250,000 TL. He paid off 50,000 TL of the loan before marriage, between 01.01.2014 and 01.01.2015, and paid off the remaining 200,000 TL after marriage, between 01.01.2015 and 01.01.2019. During this period, Ayşe purchased a car for 150,000 TL on 10.04.2019, and on 10.10.2019, she inherited an apartment from her late father.
As a result of the lawsuit filed by the parties to claim their rights arising from the property regime, such as the contribution share and value increase share, a decision will be made on 15.06.2024. As of the date closest to the decision date, it was calculated that the property registered in Mehmet’s name is worth 3,000,000 TL, and the vehicle registered in Ayşe’s name is worth 800,000 TL.

Since the apartment Ayşe inherited from her father is considered a personal asset, it will not be taken into account in the property regime. Regarding the vehicle registered in Ayşe’s name, Mehmet will have a contribution share claim of 400,000 TL from Ayşe. For the house registered in Mehmet’s name, the credit paid during the marriage will be calculated proportionally over the value of the property, which is 3,000,000 TL, specifically 4/5 of the value (2,400,000 TL). Ayşe will have a contribution share claim of 1,200,000 TL from Mehmet, calculated as half of 2,400,000 TL.

Since the property regime will end on the date the lawsuit was filed, 01.01.2020, any assets acquired after this date will not be jointly considered and will not be taken into account in the liquidation process. Therefore, the statute of limitations will begin from the date the divorce decision became final, which is 10.05.2023.

3.What Happens to Loans Taken During Marriage After Divorce?

Individual loans taken during the marriage will remain the responsibility of the indebted spouse after the divorce. However, if the loan is for a vehicle, a property, or a loan related to the shared living arrangement, both spouses will be responsible.

4.Does the spouse have a right to the inheritance received by the other spouse?

The spouse does not have any right to the inheritance received by the other spouse, neither during the marriage nor after the divorce. Inheritance is a right that is strictly personal to the individual. Therefore, assets acquired through inheritance, which are considered personal property, can only be enjoyed by the inheriting spouse.

5.When Does the Property Regime End?

The property regime ends upon the filing of the relevant case in the event of divorce or annulment of marriage. From this date onwards, any acquired assets will not be considered, and the property distribution liquidation process will begin.

6.Is there a statute of limitations in a property regime case?

A property regime case must be filed within 10 years from the finalization of the divorce case; otherwise, the right to file the lawsuit will be time-barred. If the statute of limitations set by the legislator is not adhered to, it will not be possible to request property division. Additionally, the 10-year statute of limitations period will start from the finalization of the case.

Some Court of Cassation Rulings Regarding Property Division in Divorce

1. “As a rule, it is accepted that the existing property of the spouses (TMK Article 235) will be subject to liquidation when the divorce case is filed. However, it is also foreseen that properties sold within one year prior to this date will be taken into account during the liquidation process.” (Court of Cassation 8th Civil Chamber, Decision dated 31.03.2015, Case No. 2014/1703, Decision No. 2015/7288)
2. “The two shops in Ikitelli, which are the subject of the case, were previously registered in the name of the debtor but were sold to the defendant’s sibling just before the divorce case was filed. This sale transaction is considered a fraudulent sale aimed at preventing the plaintiff from collecting their claim, and therefore, it should be annulled.” (Court of Cassation 17th Civil Chamber, Decision dated 14.10.2014, Case No. 2013/5014, Decision No. 2014/13312)
3. “…It is understood that the 1/6 share of the immovable property was previously registered in the name of the defendant-plaintiff man’s mother, Emine Ç., but was registered in the name of defendant-plaintiff Mustafa Ali through a sale on 17.08.2005. As the immovable property subject to the liquidation was purchased during the period when the property sharing regime was in effect, it is considered to be acquired property under the legal presumption, and the burden of proof to the contrary lies with the defendant-plaintiff man (Turkish Civil Code Article 6, Civil Procedure Code Article 190). Therefore, although the burden of proof for the immovable properties being personal property lies with the defendant-plaintiff man, the court made an erroneous assessment by accepting that the burden of proof was on the plaintiff-defendant woman, which was an incorrect decision and required reversal…” (Court of Cassation 2nd Civil Chamber, Decision dated 13.06.2022, Case No. 2022/3443, Decision No. 2022/5629)
4. “A divorce protocol has been made between the parties. In the divorce protocol, there is a statement that ‘the parties have no claim for property.’ The term ‘property’ in the divorce protocol cannot be interpreted narrowly. Since the protocol was also approved by the court, the plaintiff has no right to request property division in the divorce.” (Court of Cassation General Assembly of Civil Law, Decision dated 27.11.2013, Case No. 2013/185, Decision No. 2013/1601)
5. “The defendant claimed that he paid his spouse’s credit card debt. The defendant’s action of giving his spouse 3 bracelets, 500 TL, and 110 Euros by converting them to pay the credit card debt is legally considered a gift. Therefore, this should not be taken into account in the calculation of property division in the divorce.” (Court of Cassation 8th Civil Chamber, Decision dated 15.03.2012, Case No. 2011/4041, Decision No. 2012/1841)
6. “If the money spent on purchasing a lottery ticket is covered by acquired property, the money won and its replacement value are also considered acquired property. It is quite difficult to prove from which property group the payment for gambling was made. However, unless proven otherwise, it must be accepted that the payment was made from acquired property. Accepting that daily expenses, which are not significant or could be considered investments, are made from acquired property is in line with the ordinary course of life. For example, it is consistent with the ordinary course of life to use values from the personal property group for the purchase of a house, car, or company shares. Based on all these explanations, the winnings from gambling games played for a price are part of the acquired property group and, therefore, should be included in the property division in the divorce.” (Court of Cassation 8th Civil Chamber, Decision dated 24.06.2014, Case No. 2013/7361, Decision No. 2014/13668)

ANTALYA DIVORCE LAWYER – ANTALYA FAMILY LAWYER

In divorce cases, property division is a legal process that involves the fair distribution of assets acquired during the marriage. It is a highly technical and detail-oriented process that requires careful attention. A small mistake in this process can result in significant loss of rights for one of the parties. This is where a divorce lawyer specializing in property division steps in.

A divorce lawyer meticulously handles all these legal procedures, protecting their client’s rights in matters such as the dissolution of the property regime, contribution claims, and value increase claims. Additionally, they provide legal support in more advanced procedures like property cancellation and registration lawsuits.

In short, a property division lawyer in divorce cases is indispensable to prevent any loss of rights. With professional support, the process progresses faster, and your legal rights are fully protected. For legal assistance in Antalya, you can reach out to us through the contact section.

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