When Is a Property Division Action Filed?
A divorce action and an action for the liquidation of the matrimonial property regime are not the same action. Although a monetary claim action based on the matrimonial property regime may be filed while the divorce proceedings are pending, a decision on the merits of the liquidation claim cannot, as a rule, be made before the divorce judgment becomes final; the outcome of the divorce file may be treated as a preliminary issue.
For a participation claim arising from a matrimonial property regime that has ended through divorce, the practice of the Court of Cassation (Yargıtay) takes as a rule a ten-year statute of limitations from the date the divorce judgment becomes final. This rule does not apply to every title deed, item of wedding jewelry, contract or third-party claim. The reason the regime ended, the grounds of suspension and interruption, foreign court judgments and the nature of the claim are examined separately.
In particular for claims against a third party who has benefited from a gratuitous transfer, there are special time limits of one year from the time of learning and five years from the end of the matrimonial property regime. For cancellation of the title deed and registration, simulation, fiduciary transactions, wedding jewelry, contracts or independent debt relationships between the spouses, the time-limit regime of the claim concerned applies.
If the amount of the claim cannot be determined fully and definitively when the action is filed, the conditions of an action for an indeterminate claim may be assessed separately. Correctly identifying the type of action is important for court fees, increases of the claim, the expert report and the statute of limitations.
The Competent Court and Jurisdiction
The court competent in disputes arising from the liquidation of the matrimonial property regime is the family court; in places where there is no separate family court, the action is heard in the civil court of first instance acting as a family court.
The court with territorial jurisdiction is determined according to the reason the matrimonial property regime ended. If it ended by death, the last place of residence of the deceased spouse; if it ended by divorce, annulment of the marriage or a switch to separation of property by judge’s decision, the court competent in those actions; in other cases, the court of the place of residence of the defendant spouse comes into question. The place where the immovable property is located, the parties’ places of residence, a connection with a foreign country, and the claim’s being based on a right in rem outside the matrimonial property regime may affect the jurisdiction review.
Payment of the Participation Claim, Interest, Deferral and Security
The participation claim and the share in increased value may be paid in money or in kind. In payment in kind, the market value of the asset is taken as the basis; units allocated to professional activity and the economic integrity of businesses are taken into account. The fact that the liquidation of the matrimonial property regime most often ends in an award of a monetary claim does not prevent payment in kind from coming into question where the statutory conditions are present.
If immediate payment of the claim would cause serious difficulty for the debtor spouse, the debtor spouse may request that payment be deferred for a suitable period. Deferral is not applied automatically; the financial situation, the amount of the claim, the structure of the assets, the interest of the creditor spouse and the concrete difficulty are assessed by the court. If the circumstances and conditions so require, the debtor may also be asked to provide security.
Unless there is an agreement to the contrary, the law provides that interest runs on the participation claim and the share in increased value from the end of the liquidation. Even so, the type of claim, the valuation date, a properly made interest request, default, the scope of the judgment and current judicial practice must be examined separately in determining when interest starts. Where necessary, enforcement proceedings are conducted to collect the monetary claim awarded in the judgment; the applicability of arrangements involving payment in kind or the transfer of a title deed or vehicle must also be ensured separately.
Our Approach to Actions and Time Limits
Timeline and procedural review
The dates of the divorce action, finality, service of notice, learning and transfer are reviewed together with the documents. The statute of limitations and the preclusive period are kept apart; no single time limit applies to all claims.
Filing and follow-up plan
Jurisdiction, territorial competence, the type of claim and the necessary evidence are identified. After the engagement is accepted and the necessary authorization is given, the filing, hearing and appeal stages within the scope undertaken are followed.
The scope of the engagement, fees and expenses, and the method of document sharing and reporting are determined at the consultation. Representation depends on acceptance of the engagement and the necessary authorization.
This is general information. The nature of the claim, the documents, current legislation and the specific facts must be assessed together. Submitting an inquiry does not stop statutory time limits.
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