A matrimonial property regime agreement regulates the spouses’ property relations within the limits permitted by law. The expression “marriage contract” used in everyday language, however, often confuses the matrimonial property regime, the divorce protocol, an inheritance arrangement and the transfer of immovable property. To prepare a valid text, it must first be determined which legal transaction is to be carried out.
Which matters does a matrimonial property regime agreement regulate?
Under Articles 202 and 203 of the Turkish Civil Code, spouses may choose one of the regimes provided by law; they may modify the regime within the legal limits. Participation in acquired property, separation of property, separation of property with sharing and community of property are different structures. When choosing the name of the regime, the management of the property, liability toward third parties, liquidation and the consequences in the event of death must be assessed together. [1]
Choosing separation of property does not remove all claims between the spouses or all obligations arising from family law. Co-ownership, independent debts, the protection of the family residence and other statutory rights are assessed separately.
When and in what form is the agreement made?
A matrimonial property regime agreement may be made before the marriage or while the marriage continues. Article 205 of the Turkish Civil Code provides for execution (düzenleme) or certification (onaylama) by a notary; it also allows the choice of regime to be notified in writing when the application for marriage is made. The signatures of the parties and, where necessary, of their legal representatives are required. [1]
Is it sufficient to sign a text downloaded from the internet at home?
Not every document satisfies the formal requirement for a matrimonial property regime agreement. It must be examined which transaction the text signed by the spouses between themselves relates to. In particular, the choice of a matrimonial property regime and the written agreement on waiving the share in increased value, or changing its ratio, regulated in Article 227 of the Turkish Civil Code should not be described as if they were subject to the same formal regime. The fact that a document bears the words “marriage contract” in its title does not determine its legal nature.
How are capacity and intent assessed?
Article 204 of the Law requires the capacity to discern, and it regulates the consent of the legal representative for minors and persons under guardianship. Claims of mistake, fraudulent misrepresentation or duress may be examined separately. The fact that the agreement was made at a notary does not show that all objections concerning the party’s intent end automatically. In practice, it matters that the party understood the language, grasped the economic result of the text and, where necessary, was given translation support. [1, 3]
Does the agreement automatically erase rights that arose in the past?
Changing the regime while the marriage continues separately raises the legal consequence of the earlier period. The ending and liquidation of the old regime are assessed within the framework of Articles 212 and 225 of the Turkish Civil Code. It cannot be said that an agreement on separation of property made today automatically removes all claims relating to the past period. [1]
For marriages before January 1, 2002, the transitional provisions in Article 10 of Law No. 4722 must be examined separately. The possibilities specific to the transitional period should not be applied as though every agreement made today could be applied retroactively without limit to the date of the marriage. If the aim is liquidation of the earlier period or waiver of a separate claim, its scope and validity must be established separately. [2]
Which property can be treated as personal property by agreement?
Article 221 of the Turkish Civil Code allows provision to be made for treating certain values, which would otherwise fall within acquired property because of a professional or business activity, as personal property, and for the income of personal property not to participate in acquired property. This provision should not be used to mean that any desired property can be declared personal property without limit while the statutory regime is kept. [1]
For example, an immovable property acquired before the marriage and its rental income are separate matters. Likewise, a share in a business, new capital put into a business and pay received for personal work should be clearly distinguished. Instead of general wording, the property, income and activity to be regulated should be defined.
Can the participation ratio be changed?
Article 237 of the Law allows a different basis to be adopted for participation in the residual value; it protects the reserved portions of children who are not common to both spouses and of their descendants. Article 238 requires an express provision in the agreement for a different participation arrangement to apply in cases of divorce, annulment of the marriage or separation of property by court decision. It should not be assumed that an arrangement intended for the event of death will produce the same result in divorce. [1]
How does it differ from a divorce protocol?
A matrimonial property regime agreement regulates the regime and the liquidation principles permitted by law. An uncontested divorce protocol, by contrast, contains the claims and performances in the specific divorce. If the aim is to liquidate matrimonial property regime claims in the protocol, the identity of the property, the claim, the payment, the transfer and the scope of the waiver must be clear. A document does not take over all the functions of the other document merely because it was signed by both spouses.
Does the agreement change the land registry, the rights of creditors or the rights of children?
| Expectation | Matter to be assessed separately |
|---|---|
| The home passes to the other spouse | Form and registration of the transfer of the immovable property |
| The old debt disappears toward the creditor | The creditor’s right and statutory liability |
| Free disposition of the family residence | The special protection of the family residence |
| The whole estate passing to one person on death | Liquidation of the matrimonial property regime, the inheritance transaction and the reserved portion |
| Closing off all of the child’s future claims | The child’s independent rights and mandatory provisions |
Article 213 of the Turkish Civil Code provides that a change of regime cannot remove from liability the property to which creditors may have recourse. The agreement cannot be regarded as safe as a means of avoiding a debt or eliminating the right of a third party. [1]
Can an agreement made in a foreign country be used in Türkiye?
The effect in Türkiye of a document made before a foreign notary or another authority is assessed together with the applicable law, the form, the actual content and the nature of the specific asset. Articles 7 and 15 of the Law on Private International and Procedural Law are important in this examination. An apostille or certification is not a guarantee that the material content of the document is in every respect consistent with Turkish law. [4]
The parties’ citizenships, their habitual residences at the time of the marriage, a valid choice of law and the location of the immovable property should be recorded separately. A translation makes the document understandable; it does not replace the examination of validity.
What information should be prepared before signing?
- The date of the marriage and the current matrimonial property regime.
- Earlier agreements and, if any, court decisions.
- The owner, acquisition date, debt and source of financing of each item of property.
- Shares in companies, professional income and income from personal property.
- Children from earlier marriages and the arrangement envisaged for the event of death.
- Any foreign element and assets in other countries.
- The time the agreement takes effect and whether a separate liquidation is needed for the earlier period.
A well-prepared agreement explains not only the question “who gets what,” but also in which event, for which property, starting from which date and within which legal limits it will produce its result.
Related articles: How Is Property Divided in a Divorce? A Guide to Matrimonial Property Regime Actions; Separation of Property by Court Decision During the Marriage: Justified Grounds and the Lawsuit; Property Division in an Uncontested Divorce Protocol: Waiver and the Risk of a Later Lawsuit; On a Spouse’s Death, Property Division or Inheritance First? Rights of the Surviving Spouse and Heirs; Property Division of Spouses Divorced Abroad in Türkiye: Applicable Law and Recognition.
Frequently asked questions
Can a matrimonial property regime agreement be made after the marriage?
Yes. However, the start of the new regime, the ending of the earlier regime and the liquidation of the earlier period are assessed separately. It should not be assumed that an agreement made later automatically erases all rights that arose in the past.
Does a separation of property agreement also remove maintenance and family residence rights?
Choosing a matrimonial property regime does not remove all rights arising from family law. Maintenance, the protection of the family residence, the rights of children and independent debts are assessed under their own conditions.
Is it sufficient for us to sign the marriage contract only between ourselves?
The formal requirements in the law apply to a matrimonial property regime agreement. Execution or certification at a notary and the possibility of a written choice of regime in the marriage application are separate. The legal nature of other written agreements must be examined separately.
Can we set a different sharing ratio in the agreement?
Different bases of participation may be set within the limits permitted by law. Limits such as the reserved portions of children who are not common to both spouses and the express provision required for it to apply in the event of divorce must be observed.
Is a marriage contract made in a foreign country automatically valid in Türkiye?
The document must be examined in terms of the applicable law, form and content. An apostille and a translation alone do not show that all the conditions of validity are met. Citizenship, habitual residence and the location of the property may matter.
Documents for preparing for a consultation
To record your assets and debts separately, to organize the dates of events and to identify missing documents, you can use an inventory of assets and debts, a table of event and payment dates and a form for preparing for the first meeting with an attorney. These working documents do not by themselves create a lawsuit or a legal time limit calculation.
This article is for general legal information only. In a specific dispute, the dates of the events, the documents, the type of claim and the time limits are assessed together.
Sources and legal bases
- Law No. 4721, Turkish Civil Code (4721 sayılı Türk Medeni Kanunu)
- Law No. 4722 on the Entry into Force and Manner of Implementation of the Turkish Civil Code (4722 sayılı Türk Medeni Kanununun Yürürlüğü ve Uygulama Şekli Hakkında Kanun)
- Law No. 6098, Turkish Code of Obligations (6098 sayılı Türk Borçlar Kanunu)
- Law No. 5718 on Private International and Procedural Law (5718 sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun)