Being at fault in a divorce does not mean that a person loses all of his or her property rights. The special provision in Article 236 of the Turkish Civil Code concerns divorce for adultery or an attempt on life. Other fault assessments and other claims are subject to their own rules.
Which Right Does the Provision Affect?
The law gives the judge the possibility of reducing or removing, in equity, the share ratio of the spouse at fault in the residual value. This is not an automatic result. Ownership of personal property, the return of jewelry (ziynet) or every proven contribution claim does not fall away automatically under the same provision. It must be shown clearly which right is sought to be limited. [1]
Why Are an Allegation of Infidelity and a Ground for Divorce Distinguished?
What matters is which special ground was accepted in the divorce judgment, the finalization of the judgment and the legal characterization of the events. It cannot be said that every conduct that shakes trust produces the same special consequence. In a matrimonial property regime file, the reasoning of the divorce judgment and its operative part should be examined together; a statement by one of the parties alone that “I was betrayed” is not sufficient.
How Is the Equity Assessment Made Concrete?
The requesting party must explain the conditions of the relevant provision and the grounds for the reduction sought. The other party may assert that the conditions of application have not been met or that the scope of the claim exceeds the law. It should be clear on which claim and at what ratio the court’s decision has an effect. An arbitrary punishment calculation cannot be set up.
A Short Marriage and a Non-Working Spouse
That the marriage was short or that the spouse did not work in a paid job is not the same as the special ground for reduction in the law. The source of acquisition of the asset, the debts and the distinction of personal property may already affect the calculation. In addition to these, it would not be correct to change the entire division on the basis of a purely moral assessment.
If Death Has Occurred, Does the Same Provision Apply?
Death, a divorce in progress and loss of inheritance rights give rise to separate provisions. In grave events such as one spouse killing the other, the inheritance right and the liquidation claim do not rest on the same rule. The conditions of Article 236, the inheritance provisions and the principle of good faith should be assessed with separate reasoning.
Do Adultery, an Attempt on Life and Fault Affect Property Division?
Can the Participation Claim Be Reduced in Equity Because the Marriage Was Very Short?
The law sets no minimum marriage duration for a participation claim. Even if the marriage lasted a few weeks or months, if property was actually acquired within the regime, the ratio in Article 236 of the Turkish Civil Code applies. Articles 2 and 4 of the Turkish Civil Code are not a general equity gateway giving the judge the power to reduce the statutory half share freely on the ground of a “short marriage.” The exception of manifest abuse of a right is interpreted very narrowly; apart from adultery/an attempt on life in Article 236/2 of the Turkish Civil Code, no reduction of the share can be made on the basis of fault.
In a short marriage, the result is often determined not by an “equity reduction” but by whether the asset was actually acquired within the regime, the substitution of a pre-marital source, a gift, a loan debt and the value existing on the cut-off date. An extreme decision in this area should not be used as a general principle detached from its concrete facts.
Do Adultery, an Attempt on Life and Fault Affect Property Division?
General divorce fault does not automatically change the matrimonial property regime share. Article 236/2 of the Turkish Civil Code gives the judge, in the case of a divorce for adultery or an attempt on life, the power to reduce or remove, in accordance with equity, the share ratio of the spouse at fault in the residual value. For this to be applied, the ground of the divorce judgment, the claim, the nature of the fault and equity are assessed together. Insult, indifference or a general disruption of the marital union is not by itself within the scope of this special provision.
Related articles: How Is Property Divided in Divorce? A Guide to Matrimonial Property Regime Actions; How Is a Participation Claim Calculated? Debts, Equalization and Residual Value; Property Division in an Uncontested Divorce Protocol: Waiver and the Risk of a Later Action; Property Division or Inheritance First on a Spouse’s Death? The Rights of the Surviving Spouse and the Heirs.
Frequently Asked Questions
Do Infidelity, an Attempt on Life and Other Faults Produce the Same Result in Property Division?
No. General divorce fault and the special situation in Article 236 of the Turkish Civil Code are not the same. In a divorce for adultery or an attempt on life, the judge may reduce or remove, in equity, the share of the spouse at fault in the residual value; the result is not automatic. This provision does not affect in the same way every allegation of infidelity, every ground for divorce or the whole of the personal property.
This article is for general legal information. In a specific dispute, the dates of the events, the documents, the type of claim and the time limits are assessed together.