Which Matrimonial Property Regime Applies?
Under the Turkish Civil Code, spouses may choose one of the matrimonial property regimes set out in the Code. If the spouses have not made a valid matrimonial property agreement, the statutory regime from January 1, 2002 onward is the regime of participation in acquired property. The Code also provides for the regimes of separation of property, separation of property with sharing, and community of property.
For marriages concluded before January 1, 2002, the division between periods matters. As a rule, the earlier statutory regime is taken into account up to January 1, 2002, and for the period after that date the regime of participation in acquired property is taken into account unless the spouses chose another regime. For the same asset, the purchase date, the payment periods and the sources of contribution may be spread across different regime periods. A conclusion therefore cannot be reached on the basis of the date of marriage or the date of the title deed alone.
A matrimonial property agreement may be made before or after the marriage; it must comply with the formal requirements of the law. Before liquidation, the validity of the agreement, its scope, its effective date and its effect on particular assets are reviewed. Where there are justified grounds, the judge may also be asked to convert the existing regime into separation of property.
The choice of the regime of separation of property does not mean that no financial right or claim will arise between the spouses. Although a participation claim based on participation in acquired property does not, as a rule, arise under this regime, rights arising from co-ownership, one spouse’s contributions to the other spouse’s property, debts and receivables between the spouses, protections relating to the family residence and, where their conditions are met, allegations of simulation or fiduciary transactions may be assessed separately.
For this reason, no general conclusion such as “no property division can be claimed if there is a separation-of-property agreement” should be drawn. The scope of the agreement, the manner in which the asset was acquired, the ownership record, and the contributions and payment movements must be reviewed together.
When Does the Matrimonial Property Regime End?
The date on which the matrimonial property regime ends is one of the key dates that determine which assets and payments will be taken into account in the liquidation. In the case of divorce or annulment of the marriage, the regime ends with effect from the date the action was filed, provided that the court judgment becomes final. This date is not the same as the date on which the divorce judgment was rendered or became final.
Assets acquired after the divorce action was filed remain, as a rule, outside the matrimonial property regime that has ended, if a divorce judgment is rendered. Even so, a different review may be needed if those assets originate from earlier acquired property, if earlier debts were paid, or if a transfer of assets is alleged.
Where the regime ends for other reasons, such as death, the adoption of another matrimonial property regime, or a switch to separation of property by court decision, the start date, the applicable procedure and the relationship with inheritance are determined separately.
What Is Acquired Property?
Acquired property is an asset value that a spouse obtains, while the matrimonial property regime continues, as the result of labor or of some other consideration. Depending on the circumstances of the case, the following values may be treated as acquired property:
- Salary, premiums, bonuses and professional earnings obtained in return for work,
- Payments made by social security and social assistance institutions or by organizations established to assist personnel,
- The portion of payments made for loss of earning capacity that corresponds to the period of the matrimonial property regime,
- Income from separate property; rent, interest, dividends and similar returns, subject to cases in which the spouses have agreed otherwise by a valid agreement,
- Values that replace acquired property,
- Immovable property, vehicles, bank savings, investment instruments and other asset values acquired for consideration while the matrimonial property regime continues.
The fact that an asset is registered in the name of only one of the spouses does not by itself make it separate property. Unless the law provides otherwise or sufficient proof is furnished, all of a spouse’s property is deemed acquired property. However, acquired-property status does not mean that the other spouse is a direct co-owner on the title deed or in the company; the liquidation most often leads to the calculation of a monetary claim.
What Is Separate Property?
Separate property consists, as a rule, of asset values that do not enter the residual value calculation in the liquidation of the matrimonial property regime. Under the law, the following values in particular may qualify as separate property:
- Assets belonging to one of the spouses at the start of the matrimonial property regime,
- Asset values obtained by inheritance,
- Gifts and other gratuitous transfers,
- Items intended solely for a spouse’s personal use,
- Claims for non-pecuniary damages,
- Values that replace separate property.
If an asset is claimed to be separate property, its date and source of acquisition must be proven. Where, for example, a property owned before the marriage is sold and a new property is bought during the marriage with the proceeds, inherited money is transferred to a joint account, or a gifted sum is topped up with a loan, substitution, contribution and the flow of money must be traced through documents.
An asset that is inherited or gifted is, as a rule, itself separate property. By contrast, rent, interest or other income obtained from that asset during the matrimonial property regime may be treated as acquired property unless a valid agreement provides otherwise. A gratuitous contribution made by the other spouse to separate property may also, where its conditions are met, give rise to a claim for a share in increased value (değer artış payı).
Our Approach to Determining the Matrimonial Property Regime
Review of dates and sources
The date of marriage, any matrimonial property agreement, the date of acquisition of the asset and the source of payment are reviewed together. Claims of inheritance, gift and pre-marriage savings are matched against the relevant records.
Separating the periods
The different regime periods and the end date are separated out. Which asset will enter which calculation, the missing documents and the scope of the claim are clarified at the consultation.
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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