How Is the Participation Claim Calculated?
A participation claim is not calculated by giving the other spouse half of each asset. First, each spouse’s acquired property and separate property are separated; the values to enter the liquidation, the debts, the equalization items and the values to be added by law are determined. The amount left after the debts relating to acquired property are deducted from the total of the acquired property is the residual value (artık değer).
Unless the law or a valid agreement provides otherwise, each spouse is entitled to half of the residual value belonging to the other spouse. The spouses’ mutual claims are set off against each other. The matrimonial property calculation is made separately for the assets of each spouse; as a result, it is possible for a monetary claim to be awarded instead of the title deeds of individual assets being divided.
Where the divorce is granted on grounds of adultery or an attempt on life, the judge may reduce or remove, in accordance with equity, the share of the spouse at fault in the residual value. This provision is not applied automatically to every ground for divorce.
Share in Increased Value, Contribution Claim and Equalization
In property division disputes, more than one type of claim may arise in the same file. However, the legal grounds and the calculation methods of these claims are not the same.
Claim for a Share in Increased Value
Where one spouse has contributed, with no consideration or with inadequate consideration, to the acquisition, improvement or preservation of an asset belonging to the other spouse, a share in increased value, proportionate to the contribution, arises under the conditions of Article 227 of the Turkish Civil Code (TMK). If the asset has lost value, the initial value of the contribution is taken as the basis. The source and date of the contribution and the liquidation value of the asset must be made concrete.
Contribution Claim
A contribution claim arises in particular in disputes, relating to the period of separation of property before January 1, 2002, that rest on one spouse’s monetary contribution, or contribution measurable in money, to an asset acquired in the other spouse’s name. The contribution claim is calculated separately, within the framework of the law of that period and the established criteria of the case law.
Equalization
Where a spouse’s debt relating to separate property is paid out of acquired property, or a debt relating to acquired property is paid out of separate property, equalization between the groups of assets may be required at liquidation. A contribution made from one group of assets to the acquisition, improvement or preservation of an asset in the other group may also be the subject of the equalization calculation.
Values to Be Added
Gratuitous transfers made by one of the spouses, other than customary gifts and without the other spouse’s consent, within the one year before the matrimonial property regime ended, and transfers made while the regime continued with the aim of reducing the other spouse’s participation claim, may, where the statutory conditions are met, be added to the liquidation calculation as values.
The participation claim, the share in increased value, the contribution claim, equalization and the values to be added are not interchangeable concepts. The claim must rest on the correct legal ground, and the calculation must be made accordingly.
A Home, Vehicle and Other Assets Bought with a Loan
For an asset acquired with a loan, the date of the title deed or of the invoice alone is not sufficient. The source of the down payment, the dates on which the loan installments were paid and from which group of assets, the debt remaining on the date the matrimonial property regime ended and any payments made before or after the marriage are assessed together.
Different calculation results may follow where the loan installments for a property bought before the marriage were paid during the marriage, where the debt on an asset acquired during the marriage was paid off after the divorce action, or where the down payment was met from inherited or gifted money. Bank movements, the loan repayment schedule, payment receipts and the source of money transfers are important for this reason.
The Spouses’ Personal Debts and Claims Between the Spouses
Each spouse is liable for his or her own debts with all of his or her assets. The fact that a loan, a tax debt, a commercial debt or a personal debt arose during the marriage does not by itself make the other spouse a debtor. Even so, the asset in whose acquisition, improvement or preservation the debt was used, and the group of assets out of which it was paid, may affect the liquidation calculation.
A loan of money between the spouses, one spouse’s payment of the other spouse’s personal debt, a joint investment, a current account or a payment made to a third party is likewise not always in the nature of a participation claim. Whether the claim rests on the matrimonial property regime, a contract, unjust enrichment, agency without authority, ownership or some other legal ground must be determined separately. The conditions for set-off and offsetting between the spouses’ mutual debts and the claims arising from the matrimonial property regime are also assessed on the specific file.
Our Approach to the Calculation of Claims
Analysis of the flow of money
The down payment, the loan installments, personal sources and debts are handled in chronological order. The participation claim, the share in increased value and the contribution claim are assessed without being used in place of one another.
Preparing the calculation and the evidence
The records on which the calculation is based are put in order, and the points that require valuation and an expert examination are identified. Depending on the stage of the file, the possibilities of making requests and of objecting to the report are assessed.
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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