TC
Supreme
Law Office
ISSUE NO: 2017/16895
DECISION NO:2018/1753
DECISION DATE: 07.02.2018
COURT : Family Court
TYPE OF CASE :Liquidation of the Property Regime
THE PROPERTY REGIME IS A RIGHT ARISING FROM THE LAW TO WHICH IT WILL RECEIVE PARTICIPATION, AND THE SPOUSE WHO CLAIMS THIS RIGHT DOES NOT NEED TO CONTRIBUTE TO THE ACQUISITION, INCOME GENERATION, DEVELOPMENT OR PROTECTION OF THIS PROPERTY.
SUMMARY: During the continuation of the property regime, in the acquired property owned by one spouse, the other spouse has the right to participate at the rate of half of the remaining value. You will no longer receive value participation;
From the values to be collected (TMK 229.m) and without equalization (TMK 230.m) the value of the acquired property of the spouse, including the obtained values (TMK 219.m), the residual value remaining after the debts related to these goods are deducted from the total value (TMK 231.m), the other spouse has the right to receive more than half (TMK 236/1.m).Participation is a right arising from the Law that he will receive, and the spouse who claims this right does not need to have an income or contribution for the acquisition, improvement or protection of this property.
In the calculation of the receivable for participation in the residual value, the version(fair) values available according to their status on that date are taken into account, except for the status of the goods available on the date of termination of the goods regime on the date of liquidation (TMK 227/1, 228/1, 232 and 235/1.m). According to the practices of the Court of Cassation, the date of liquidation is the date of the decision.
A person who claims that a property belongs to one of the spouses is obliged to prove his claim. Property that cannot be proved to belong to one of the spouses is considered their common property. All the property of a spouse is considered acquired property until it is proved otherwise (TMK 222. m).
At the end of the trial between the parties in the case described above, the Court decided to partially accept the case, and after the decision was appealed by the plaintiff’s attorney and the defendant’s attorney, the Dec. file was examined and deemed necessary.
decision
The plaintiff … Öztürk has filed a claim for receivables through the liquidation of the property regime due to the immovables mentioned in the lawsuit petition.
The defendant …his attorney argued for the dismissal of the case.
After the court decided to collect TL 17,261.50 from the defendant with the partial acceptance of the case, the judgment was appealed by the plaintiff’s attorney and the defendant’s attorney. before 01.01.2002
since the Turkish Civil Code Dec. 743 (TKM) was in force at that time, the separation of property regime was being applied between spouses (TKM 170 m). Since there is no regulation on the liquidation of the property regime in the TKM, the dispute regarding the liquidation of the goods acquired by the spouses during this period is referred to in Article 5 of the same law. it is resolved according to the substance.
According to the rules of the calculation method, the “contribution to be received” must be sent and decided according to the general provisions of the Code of Obligations. Because the Code of Obligations has been accepted as a complement to the Civil Code (eBK 544, TCO 646 m). In the property separation regime; Spouses have the right to save and usufruct on their own property, and the management of their property belongs to them (TKM 186/1 m). The property, income and own earnings of each of them are again their personal property (TKM 189 m). In order for a woman or husband to request a contribution to the property acquired during the continuation of the property regime due to the contribution of another, she must necessarily contribute with a material or service value that can be measured in money or cash.
Goods subject to liquidation purchased while the property separation regime was in force, other assets other than regular income (trappings, inheritance, donation, etc. as) and
when requested, collective contributions; the ratio of the value of the assets participated against the full value of the goods subject to liquidation at the date of purchase is determined, and the amount of the contribution that the plaintiff’s spouse will receive is found by multiplying this contribution ratio by the fair value of the goods subject to liquidation at the date of the lawsuit.
The other spouse has the right to participate in the acquired property owned by one of the spouses at the rate of half of the residual value during the continuation of the property regime.
He can no longer receive a share of participation in the value; it will be added (TMK 229.m) and without equalization (TMK 230.m) the value of the acquired property of the spouse from the values, including the obtained values (TMK 219.m), the residual value remaining after the debts related to these goods are deducted from the total value (TMK 231.m), the other spouse has the right to receive more than half (TMK 236/1.m). It is a right arising from the Law that he will receive a participation share
however, the spouse claiming this right does not need to have an income or contribute to the acquisition, improvement or protection of these goods.
In the calculation of the receivable for participation in the residual value, the version(fair) values are based on the status of the goods existing on the date of termination of the goods regime, except for the status of the goods on the liquidation date, according to their status on that date (TMK 227/1, 228/1, 232 and 235/1.m). According to the practices of the Court of Cassation, the date of liquidation is the date of the decision. A person who claims that a property belongs to one of the spouses is obliged to prove his claim. The property belonging to the spouses, which cannot be proved, is considered their shared property. All the property of a spouse is considered acquired property until it is proved otherwise (TMK 222.m).
As for the concrete event; the spouses were married on 01.08.1988 and divorced upon the finalization of the provision regarding the acceptance of the divorce case filed on 11.06.2012.
The property regime ended on the date of opening the divorce case (TMK 225/son). Since it is not claimed that another property regime has been selected by the contract, from the date of marriage until 01.01.2002, when TMK 4721 entered into force (TKM 743 170.m), from this date until the termination of the goods regime, the regime of participation in acquired goods will be applied (Law No. 4722, 10.
article, TMK 202/1.m). 1225 Ada Decanted from the defendant’s immovable property with 647/2400 shares 1 parcel, from the information and documents included among the files and records of transactions brought from the immovable property with 334/2400 shares dated 19.07.2002
, 313/2400 shares were purchased by the defendant in the deed dated 19.07.2002 registered on behalf of the defendant with the official title deed dated 17.12.2002 and the old shares were deposited and registered on his behalf as 647/2400 shares, from the date of opening the divorce case
3 on 02.07.2012. it is understood that it was transferred to the person by sale.
The court considers that the defendant has 647/2400 shares in the immovable property, 334 shares were acquired before the parties got married and are personal property, but the plaintiff’s share in the immovable property during this period … was also used for the purchase of 334 shares, and therefore the plaintiff’s contribution to 334 shares is 10/100 of the immovable. 3.
Although it was decided that the value of the 334 shares, which are personal property, on the date of sale to the person on 02.07.2012 was 60.000 TL, the value of the plaintiff’s 10% contribution share was 3.184 TL, the 313 shares were acquired on 17.12.2002, the value of the 313 shares acquired was 28.155 TL, according to the law, the 1/2 ratio in which the plaintiff will receive a participation share is 14.077,50- It is TL, and the total amount that the plaintiff will receive is TL 17,261.50, and although it has been decided to partially accept the case based on this amount, there is no possibility to participate in this opinion. As a matter of fact, firstly, it is not understood how the share values are determined with a 10% contribution rate for 334 shares.
Explanation of post-sale offer discrimination, in the plaintiff’s lawsuit petition, the real estate inherited from his father was sold in 1995 or 1996, transferred to his brother from the sale price, transferred his mother’s shares to a bank branch, and then took over the business by combining the grant amount and this money belonging to his mother, then withdrew this money from the bank in 1996, bought the real estate subject of the lawsuit, he claimed that the purchase price of the real estate was paid with the inheritance money in question and that his mother had repaid the loans she had withdrawn from the Ziraat Bank Istanbul Branch at different times, and demanded that the Iş Bank and Ziraat Bank records be brought. However, the examination of the bank records in question by the court
has been done. No less than as described above, the first acquisition date of 334/2400 shares was determined when 647/2400 shares were acquired by the defendant on the immovable property subject to the title deed by purchasing 313/2400 shares with an official deed on 17.12.2002, although it was decided to return to our entire apartment from the first registration of the immovable property in the land registry, the outstanding shares requested to be brought before the reorganization of the real estate transfer records in the title deed were sent, the first acquisition date of 334/2400 shares was sent although it cannot be Deciphered, according to the land registry records included among the land registry files, it is understood that the plaintiff’s father … has a 1/2 share in the 5299 parcel of decommissioned Village real estate and this share was sold on 28.08.1996.
The defendant party claimed that the immovable property subject to the lawsuit was taken over in 1997 and that the plaintiff did not make any contribution. According to the share that the defendant made the sale, since it is understood from the land registry records that the independent sections of the building that fall to the share of the land registry owners are used as the top floor, the independent section on the floor
it is seen that the section was used, but a reconnaissance report was issued about the independent section on the lower floor after the door was shot but not opened.
Due to the discovery of a real estate other than the real estate subject to the lawsuit
according to the edited report, the basing of the result was not considered correct. In addition, since the immovable property subject to the lawsuit was registered on behalf of the defendant on the date of opening the divorce case, the court should calculate the value on the date of liquidation when the property regime expires, while the court’s 3.the calculation of the value on the date of sale to the person on 02.07.2012 is also not correct.
The business case that the real estate should be made immovable by the court, because it is understood what the first issue of the facility is in the share transfer deed 334/2400, in order to show all the records from the date of registration, edit the transaction tables based on the underlying documents and the official contract and determine the date of the first acquisition of the shares subject to litigation in the immovable property 334/2400, as well as to present evidence that the plaintiff is a plaintiff based on bank records or to send and deliver on time,
comparing the immovable acquisition date and immovable sale date, bank account movements of the party of the first exit of the case, on the date of opening the divorce case, when the property regime of the immovable ended, the defendant made a discovery with the help of expert experts on the independent section corresponding to the share registered on behalf of the defendant defendant,
according to its status at the date of liquidation (violation of the previous decision,
but determining the new value (outdated) version (current) value after the date of the decision, accordingly, in order to properly check the plaintiff’s claims within the framework of the above-mentioned principles and the calculation principles within the framework of an expert’s expert report, an appropriate positive report will be issued after evaluating all the evidence according to the results of the decision, the parties will receive the acquired rights according to the situation. In this case, it was not correct that the decision was made in writing with an incomplete review.
CONCLUSION: The appeals of the plaintiff’s attorney and the defendant’s attorney are Temporary 3 of the CCP. it is in place for the reasons explained in the article. 428 Of the Turkish Commercial Code. in accordance with the article, it was decided unanimously on 07.02.2018 that the parties may request the correction of the decision contrary to the decision within 15 days from the date of notification to the Supreme Court, in compliance with the decision to overturn in accordance with Article 440/ I of the Code of Civil Procedure.