Within the marriage union, the spouses’ property relations are governed by the matrimonial property regime provisions of the Turkish Civil Code. A property regime is the legal system that determines how the spouses’ assets are managed and used during marriage and how they are divided upon termination of the marriage.
In Turkish law, property regimes are examined under three main categories: the statutory property regime, contractual (optional) property regimes, and the extraordinary property regime.
Types of Property Regimes
Statutory Property Regime and Contractual Property Regimes
The statutory property regime is the regime that applies by operation of law if the spouses do not conclude a property regime agreement. Pursuant to Article 202/1 of the Turkish Civil Code, the statutory regime in Turkish law is the participation in acquired property regime.
A contractual (optional) property regime is the regime chosen by the spouses, within the limits permitted by law, by concluding a property regime agreement. Under Articles 202/2 and 202/3 of the Turkish Civil Code, spouses may conclude such an agreement before or during marriage and may amend it at any time.
Contractual property regimes are:
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Separation of property,
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Separation of property with sharing,
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Community of property.
Although the participation in acquired property regime is the statutory regime, if spouses choose this regime by contract, it gains the character of a contractual regime.
Extraordinary Property Regime
The extraordinary property regime is an exceptional legal measure aimed at protecting the marriage union and the spouses’ assets. Transition to this regime occurs either automatically by law or by a court decision upon the request of one spouse.
Under Article 206 of the Turkish Civil Code, where there is a justified reason, the judge may decide to convert the existing regime into separation of property.
In particular, the following circumstances are deemed justified reasons by law:
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One spouse’s assets being over-indebted or their share being seized,
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One spouse endangering the interests of the other spouse or the partnership,
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Unjustified refusal to give the required consent,
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Failure to provide information regarding assets, income, or debts,
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One spouse permanently lacking discernment.
A legal representative may also make this request on behalf of a spouse who permanently lacks discernment.
Statutory Property Regime: Participation in Acquired Property
General Principles
With the Turkish Civil Code No. 4721, which entered into force on 01.01.2002, the statutory property regime became the participation in acquired property regime. In marriages concluded before this date, the statutory regime was separation of property; in marriages concluded after this date, it is the participation in acquired property regime.
Under this regime, each spouse’s assets are assessed separately and are divided into:
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Personal property
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Acquired property
Acquired Property
Under Article 219 of the Turkish Civil Code, acquired property consists of asset values obtained by the spouses in return for consideration during the property regime period. In particular, it includes:
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Gains from work,
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Social security payments,
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Compensation for loss of working capacity,
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Income from personal property,
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Values replacing acquired property.
Personal Property
Under Article 220 of the Turkish Civil Code, personal property includes:
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Items for personal use,
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Assets owned prior to marriage,
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Inheritance and gratuitous acquisitions,
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Claims for non-pecuniary (moral) damages,
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Values replacing personal property.
By a property regime agreement, spouses may classify certain acquisitions as personal property or agree that income from personal property will not be included in acquired property.
Burden of Proof
Pursuant to Article 222 of the Turkish Civil Code:
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The party claiming that an asset is personal property bears the burden of proof.
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Unless proven otherwise, all assets are deemed acquired property.
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Assets whose ownership cannot be proven are deemed to be co-owned.
III. Termination and Liquidation of the Property Regime
The participation in acquired property regime ends on the date the divorce action is filed. Liquidation is conducted based on that date.
Value Increase Claim and Equalization (Reimbursement) Claim
If one spouse makes a gratuitous contribution to the acquisition or preservation of an asset belonging to the other spouse, a value increase claim arises (TCC Art. 227).
Payments made between personal property and acquired property give rise to an equalization (reimbursement) claim (TCC Art. 230).
Values to Be Added
Pursuant to Article 229 of the Turkish Civil Code, the following are added to the liquidation account:
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Gratuitous dispositions made within the last one year,
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Transfers made with the purpose of reducing the participation claim.
Residual Value and Participation Claim
Residual value is the amount remaining after deducting debts from the total acquired property. Under Article 236 of the Turkish Civil Code, each spouse is entitled to one-half of the other spouse’s residual value.
In the event of divorce due to adultery or attempted killing, the judge may reduce or eliminate the at-fault spouse’s participation claim in accordance with equity.
Optional Property Regimes
Separation of Property
Under the separation of property regime, each spouse independently exercises the rights of management, use, and disposition over their own assets (TCC Art. 242).
Separation of Property with Sharing
Under this regime, certain assets acquired during marriage are shared upon divorce. However, it is rarely preferred in practice.
Our Legal Support as Avrasya Law Office
Correctly determining the applicable property regime and conducting the liquidation process in compliance with the law prevents serious loss of rights in divorce proceedings. As Avrasya Law Office, we provide effective and professional legal consultancy in drafting property regime agreements, property division lawsuits, and liquidation processes.
