It is possible to change the matrimonial property regime while the marriage continues. Making a contract by agreement between the spouses and asking the court for separation of property on a valid ground are different routes. A change of regime does not mean that rights belonging to the earlier period disappear automatically.
How Is a Change Made by Contract?
A property regime contract may be made before the marriage or during it, in the form prescribed by law. The form of drawing up or certification before a notary and the possibility of a written choice in the marriage application are important. The capacity of the parties and the regimes the law permits are taken into account. A generic document downloaded from the internet and signed only by the spouses is not, in every case, a valid regime contract. [1]
What Is the Basis of a One-Sided Request?
Article 206 of the Turkish Civil Code requires a valid ground. Facts such as insolvency, endangering interests or refusing to give information about assets must be made concrete. The request is not a route that forces the filing of a divorce action; yet its acceptance does not depend merely on a party’s wish either. The defendant spouse may show that the alleged danger does not exist or that the documents have a different explanation.
Why Are Protection and Liquidation Requests Kept Apart?
Annotating the family residence, making certain dispositions subject to the other spouse’s consent and moving to separation of property do not produce the same result. If there is an urgent danger, the interim measure requested must be explained separately. A decision changing the regime does not by itself determine the monetary liquidation amount of the past period. The claim request, the court fee and the calculation must be set up separately.
Does Labor Remain Entirely Without Value Under Separation of Property?
Housework and child care are a contribution to the marital union. However, separation of property does not contain the system of automatic participation in residual value found in participation in acquired property. An economic contribution to a specific acquisition of property, a debt or a right of ownership may still be examined. When choosing a regime, one should look not only at the situation of the spouse earning a high income but also at unpaid caregiving labor and the need for future security.
Which Documents Should Be Brought to the Consultation?
Existing contracts, debt and enforcement records, an asset list, correspondence requesting information and risky transactions should be prepared. It should be explained which valid ground each document shows; it should not be assumed that a change of regime can be made in order to remove the rights of creditors.
Which Matrimonial Property Regime Applies Between the Spouses?
What Are the Basic Differences Among the Four Property Regimes?
| Regime | Management of assets | Liability for debts | Basic consequence on termination | Main risk |
|---|---|---|---|---|
| Participation in acquired property | Each spouse manages and disposes of his or her own assets; special limitations in the law are reserved. | As a rule, each spouse is liable for his or her own debts with all of his or her assets. | A participation claim arises over the residual value of the acquired property; if the conditions are met, a share in increased value and equalization also arise. | Two opposite wrong beliefs: “all property is joint” or “whoever holds the title deed owns the property alone.” |
| Separation of property | Each spouse manages, uses and disposes of his or her own property. | Each spouse is liable for his or her own debt; the provisions on joint debt and representation of the marital union are reserved. | There is no automatic participation in residual value; ownership, debt, contribution and general provisions become important. | The contributing spouse being unable to prove the payment and the purpose of the contribution. |
| Separation of property with sharing | While the regime continues, management close to separation of property applies. | As a rule, personal liability for debts continues. | Certain assets set aside for the family’s joint use and investments are shared under the principles in the law. | Wrongly determining which asset falls within the scope of sharing. |
| Community of property | The principles of joint management and disposition set out in the law apply to the community assets. | The distinction between community debts and personal debts matters. | Community assets and personal property are separated and then divided. | Overlooking the scope of the contract and the rights of third parties and creditors. |
Choosing a property regime is not only a matter of “how much will be received on divorce.” It also affects management during the marriage, disposition, debts, company shares, inheritance, the position of creditors and the consequences in the event of death. An optional regime contract cannot remove the acquired rights of third parties; it does not apply the consequences of past periods retroactively in a way the law does not permit.
When and How Can a Property Regime Contract Be Made?
The spouses may make a property regime contract before the marriage or during it. The contract is made by drawing up or certification before a notary; a written notification of the choice during the marriage application is also possible. The contract can only choose one of the regimes recognized by law and can make changes within the limits the law allows.
Can the Spouses Treat Acquired Property as Personal Property?
Article 221 of the Turkish Civil Code makes it possible for the spouses to agree, by a property regime contract, that values arising from the practice of a profession or from the activity of a business, which would otherwise fall within acquired property, are treated as personal property, and that the income of personal property will not enter acquired property. It cannot be concluded that every kind of property can be declared personal property without limit.
What Is the Extraordinary Property Regime?
If there is a valid ground, one of the spouses may, under Article 206 of the Turkish Civil Code, ask the judge to convert the existing regime into separation of property. Examples in the law include the other spouse’s insolvency, refusal to give information about assets, endangering the share in a company, or being permanently without the capacity to discern. This action is different from the divorce action and from the action for a liquidation claim; the timing of the request, the subject-matter jurisdiction, the territorial jurisdiction and the court fee must be set up separately.
Frequently Asked Questions
Which Rights Can I Exercise Regarding My Spouse’s Assets Without Filing a Divorce Action?
Annotating the family residence in the land registry, limiting the power of disposition to protect economic assets and an official inventory of assets are the main possibilities. If there is a valid ground, moving to separation of property may also be requested from the court. These do not provide for the immediate liquidation of the continuing regime of participation in acquired property with respect to all property. The request should be linked to the existing danger and the right to be protected.
Can I Ask the Court for Separation of Property Even if My Spouse Does Not Agree?
If there are the valid grounds regulated in Article 206 of the Turkish Civil Code, a move to separation of property may be requested without the other spouse’s consent being required. Insolvency, endangering interests or refusing to give information about assets are among the examples. A mere disagreement is not regarded as sufficient; the underlying events and documents must be shown. If a decision is made, the liquidation of the earlier regime is addressed separately.
How Are the Place of Application and the Court Fee Determined When Separation of Property Is Requested from the Court?
The family court has subject-matter jurisdiction over a request for a move to separation of property; where there is no family court, the civil court of first instance designated for this purpose hears it in that capacity. The place of residence of either spouse has territorial jurisdiction. The court fees for a request for a change of regime alone and for a monetary liquidation request added to it are not treated in the same way. The relief sought should be separated; a claim that requires an amount-based court fee should be shown separately.
Can a Contribution Claim for a Past Period Be Requested While the Marriage Continues?
It cannot be said that, in every case, divorce must be awaited for contribution or independent debt claims arising from the period of separation of property. Even so, the true legal nature of the claim, its maturity and whether the earlier regime has ended must be determined. It should not be confused with the liquidation of a continuing regime of participation in acquired property. The suspension of the statute of limitations between spouses during the marriage is also a separate matter.
Does a Separation of Property Contract Remove All of a Spouse’s Claims Arising from Contribution?
Separation of property may remove the calculation of the statutory participation in residual value; but it does not erase all ownership, loan, return or contribution rights between the spouses. The liquidation of the period of the earlier regime may also come onto the agenda separately. The date, scope and validity of the contract matter. The assessment “we made a separation of property, there is no right at all” can be made only after all the specific claims have been examined.
How Is the Legal Effect of Housework and Child Care Assessed Under the Separation of Property Regime?
Housework and child care are a contribution to the marital union; however, under the old regime of separation of property there is no automatic half-share rule that, by itself, gives rise to a monetary contribution claim for every acquisition. By contrast, a specific economic contribution to agriculture, a business or income-generating work may be examined separately. Under the regime of participation in acquired property, however, the same kind of proof of material contribution is not required for the non-working spouse’s participation claim.
Related Articles
- How Is Property Divided in Divorce? Guide to Property Regime Actions
- Which Property Is Divided in Divorce? Distinguishing Acquired Property and Personal Property
- Contribution Claims in Marriages Before 2002: Proof, Calculation and Special Cases
- How Is a Property Division Action Filed? Court, Type of Action, Court Fee and Requests
- How Is a Property Regime Contract Made? Notary Procedures, Scope and Limits of Validity
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.
Sources and legal bases
- Law No. 4721, Turkish Civil Code (Türk Medeni Kanunu)
- Law No. 4722 on the Effective Date and Manner of Application of the Turkish Civil Code (Türk Medeni Kanununun Yürürlüğü ve Uygulama Şekli Hakkında Kanun)
- Law No. 4787 on the Establishment, Duties and Trial Procedures of Family Courts (Aile Mahkemelerinin Kuruluş, Görev ve Yargılama Usullerine Dair Kanun)