HOW TO PREPARE A MARRIAGE CONTRACT?WHAT DOES A MARRIAGE CONTRACT DO?
What is a Marriage Contract?
A marriage contract is a contract that married or to be married couples often sign during the marriage phase and in case their marriage ends in the future. It is essentially based on an agreement on the division of property owned by the couple.
There are four types of marriage contracts:
– Separation of property agreement
– Property partnership agreement
– Contract of participation in acquired property
– It is a shared property separation agreement.
Separation of Property Agreement: This contract regulates the ownership of property acquired during the marriage and how it is to be shared.
Under the separation of property regime, each spouse’s property belongs solely to him or herself. Each spouse is fully responsible for his or her own debts. If a party claims to be the owner of a property, he or she has the burden of proving this claim. If the owner of the property cannot be determined, it is presumed that the property is shared between the spouses and that they are both entitled to it.
Property Partnership Agreement: It is the joint ownership of all property owned individually or collectively by the spouses after marriage. In this type of regime, the spouses become partners in all property within the marriage, whether it is common property or personal property.
Shared Property Separation Agreement: In the regime of shared property separation, each of the spouses maintains the rights of management, utilisation and savings on their own assets within legal limits. In marriages where this regime is valid, if one of the spouses claims that a certain property belongs to him/her, he/she is obliged to prove this claim. The property that cannot be proved to belong to one of the spouses is considered to be in the shared ownership of the spouses.
Contract of Participation in Acquired Property: It is the legal property regime in the current Civil Code. From the date of marriage, the legal property regime is applied, which is a regime in which the goods acquired by the spouses with their own earnings are accepted as half and half. If no contract is signed, this is the valid regime.
If you need an experienced family lawyer about the marriage contract, you can contact us.
How to Prepare a Marriage Contract?
One of the most curious issues among couples is how to prepare a marriage contract. There are certain requirements for the legal validity of this contract and these requirements can be divided into three main categories:
– Driving licence: The marriage contract can only be created by persons with full or limited capacity. Persons with restricted capacity or minors may enter into this contract with the approval of their legal guardian.
– Notarisation: The marriage contract must only be certified by a notary public in order to be legally effective.
– Signature: The marriage contract must be signed by both spouses. If one or both spouses are incapacitated, their legal guardian must sign on their behalf.
We recommend that you seek legal advice from an experienced family lawyer to prepare a marriage contract.
You can contact us for more detailed information on “How to prepare a marriage contract?”. We will be happy to assist you with our Antalya lawyer team experienced in preparing a marriage contract.
Is the Marriage Contract Verbal? Does the marriage contract have to be in writing?
An official form is required to make a marriage contract. The contract is not valid if it is only made verbally. In addition, even if the marriage contract is made in writing between the parties, this contract will still not be valid because agreements made only in writing between the parties are considered as ordinary written contracts and this does not fulfil the validity requirements. Therefore, the property regime agreement must be prepared through a notary public. It is recommended that you consider contacting a divorce lawyer to avoid making the wrong transaction and to meet the legal requirements.
What Does a Marriage Contract Do?
When the division of property is on the agenda in divorce cases, the marriage contract is considered as an important legal document. This agreement is binding and must comply with the validity requirements. The functionality of the marriage contract depends on whether it is valid or not. A property regime agreement works when it is valid. The court directly enforces this agreement and thus the property is divided without any dispute.
Marriage contracts are valid prospectively from the date of execution. Therefore, the contract does not regulate the situations before its date.
What happens if a marriage contract is not made?
The obligation to make a marriage contract is not a legal requirement. Many people recognise that the desire to conclude a marriage contract between spouses is a personal preference. If a spouse does not wish to enter into a marriage contract, this right should be respected and not forced.
Article 202 of the Turkish Civil Code states that the regime of participation in acquired property shall be applied as the basis. This is a complementary legal regulation and means that the regime of participation in acquired property, known as the “rule property regime”, will automatically apply when the marriage contract is not concluded. Therefore, the parties do not lose any rights in the absence of a marriage contract. In case of divorce and division of property, the legal property regime rules are applied between the parties.
In summary, the choice of whether or not to conclude a marriage contract is a personal decision and both spouses must agree on this issue. Whether they have made a marriage contract or not, the rights of the parties are protected in both cases in accordance with legal regulations.
Is the Marriage Contract Cancelled? How is the Marriage Contract Invalid?
In Turkish Law, the principle of freedom of contract is generally accepted, but according to Article 26 of the Turkish Code of Obligations, freedom of contract is applied provided that it is not contrary to the limits and mandatory provisions stipulated in the law.
However, there is no absolute freedom of contract in the field of family law. The consequences of divorce must be foreseeable and legally secured. Therefore, the legal validity of the marriage contract in Turkish Law depends on the contract being concluded within the limits stipulated in the law.
Marriage contracts that exceed the limits set by the law are subject to the sanction of “cancellability”. Grounds for annulment may include elements that cripple the will such as mistake, deception, intimidation and are regulated by the relevant articles of the Turkish Code of Obligations. The existence of collusion is also considered as a ground for annulment and therefore a marriage contract with collusion is invalid.
In order for minors and restricted persons to enter into a marriage contract, the written consent of their legal representatives is required. Violation of this special form requirement may lead to the cancellation of the contract.
A marriage contract can only be concluded by choosing one of the types of property regime stipulated in the law. In Turkish Law, the “principle of adherence to the type” is applied for marriage contracts and a marriage contract that exceeds the limits set by the law may be cancelled due to violation of the type.
According to Article 184 of the Turkish Civil Code, no agreement can be made regarding the secondary consequences of divorce. These consequences include issues such as personal relationship, custody, maintenance, pecuniary compensation, non-pecuniary compensation and poverty alimony. The validity of marriage contracts on such matters is subject to approval by a judge. Therefore, it is not possible to make a marriage contract on such issues and if it exists, it is not legally valid.
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Can the Marriage Contract be prepared for a period of time?
The property regime agreement, also known as the marriage contract, can be prepared for a certain period of time. For example, a time limit can be imposed on the marriage contract by adding an article such as “for 10 years from the date of marriage … the property regime will be valid”. If the spouses do not divorce within this period, they will automatically be subject to the legal property regime when the specified period expires, because the contract has exceeded the time limitation.
Can a Marriage Contract be Conditional?
Conditions are generally not accepted in a marriage contract. However, in some cases, we see that there are people who want to add conditions on issues such as infidelity or abandonment. However, provisions on issues such as alimony cannot be included in the property regime agreement, it is the same in this regard.
How long is the marriage contract valid?
A marriage contract made in accordance with the procedure and substance remains valid until one of the parties dies, the marriage union between the parties is terminated by divorce or a new marriage contract is made by the parties. In fact, since it is possible for the other spouse to claim the receivables arising from the property regime against the other heirs when one of the parties dies, it would not be wrong to think that the consequences of the marriage contract will continue after the death of one of the parties.
Does the Marriage Contract Affect Inheritance?
The marriage contract has effects on inheritance law, albeit indirectly. In the event of the death of one of the parties, the receivable arising from the property regime turns into an inheritance receivable. For this reason, the surviving spouse may assert his/her claims arising from the property regime against other heirs during and after the division of inheritance.
Where to Submit the Marriage Contract?
Marriage contracts are made by written notification to the registry office during marriage or by preparing and having it approved by a notary public. After this point, it will remain valid for the marriage union until its termination.
When is the marriage contract prepared?
The marriage contract can be prepared and approved before the marriage union begins, or it can be prepared within the marriage contract.
Can alimony be agreed with the marriage contract?
No, the marriage contract is only a contract regarding the property regime. It cannot regulate alimony.
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Marriage contract preparation
Initiating and following legal proceedings for divorce in Turkey
Legal counselling and advocacy services for property division in Turkey
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