In the Turkish Civil Code, the system in which financial relations between spouses are regulated is called the “property regime”. Dec. It is understood that the assets that the spouses owned before marriage or acquired during the marriage, such as money, securities and real estate, are subject to, the property regime and the legal regime between spouses, which includes the management of assets, the rights and powers of spouses over each other’s assets, and Decrees on their responsibilities for debts.
During the continuation of the property regime, one of the spouses has the right to participate in the acquired property at the rate of half of the residual value of the other spouse. In the liquidation of the participation regime for acquired goods, the “values to be added” are taken into account in the calculation of the receivable to participate in the residual value. 229 Of the Turkish Civil Code. according to the article; unrequited earnings made by one of the spouses in the year before the end of the property regime without the consent of the other spouse in order to reduce the participation of the other spouse during the continuation of the property regime, and made outside of ordinary donations, are included in the liquidation as if they existed at the moment of the end of the property regime.
The court decision may also be brought against third parties who benefit from the takeover or transfer, provided that the case is notified to them. In this case, 241 of the same law. the article is applied later against the third person. 229. according to the article, when the receivable lawsuit is opened, whether the takeover or transfer conditions in the article have been realized will not be the subject of re-examination.
An example Supreme Court Decision on the issue is as follows;
TURKISH COURT OF CASSATION 8. LEGAL DEPARTMENT E. 2017/12991 K. 2017/11707 T. 28.9.2017
“CASE: At the end of the trial between the parties in the case described above, it was decided to dismiss the case by the Court, and after the decision was appealed by the defendant’s attorney, the Dec. file was examined and deemed necessary.
DECISION: The plaintiff … the attorney requested and sued that the 150,000.00 TL he would receive from the defendant for the real estate he acquired in the marriage union be taken from the plaintiff and given to the plaintiff.
The defendant …his attorney argued for the dismissal of the case.
The court decided to dismiss the case. decision was appealed by the plaintiff’s attorney.
It is at the initiative of the parties to put forward material events, to make legal qualifications and to determine the legal articles to be applied (HMK M. No. 6100. 33). According to the way the case is put forward, the case relates to the request that it will no longer participate in the value.
In the acquired goods owned by one of the spouses during the continuation of the property regime, the other spouse has the right to participate at the rate of half of the residual value. He can no longer get the right to participate in the value; one of the values to be added (TMK m. 229) and without equalization (TMK m. 230) the acquired goods of the spouse, including the obtained prices (TMK m. 219) the residual value remaining after deducting the debts related to these goods from the total value (TMK m. 231) the other spouse has the right to receive more than half of it (TMK m. 236/1). 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 contribute to the acquisition, improvement or protection of these goods.
In the liquidation of the regime of participation in acquired goods, the “values to be added” are taken into account in the calculation of the receivable for participation in residual value. 229 of the Turkish Civil Code No. 4721. according to the article, transfers made without the consent of the other spouse within one year before the end of the spouses’ property regime, ordinary gifts, with the participation of the other spouse, except paid goods, except transfers that will reduce assets during the continuation of the regime, are also included in order to eliminate the termination of the regime as soon as possible.
A lawsuit can also be filed against third parties who benefit from the acquired or transferred goods; however, the situation must have been notified to them. In this case, 241 of the same law. the article is applied to the third person later. 229. according to the article, when the receivable case is opened, whether the acquisition or transfer conditions contained in the article have been realized will not be the subject of re-examination.
In such disputes; primarily by the defendant spouse 229. it should be investigated and determined whether the acquisition or transfer has been made in accordance with the purpose and direction of the item. If it is understood by the court that an unrequited acquisition or transfer has been made, a provision should be made to determine whether the plaintiff has the right to participate in the calculation made by accepting these goods, to determine the amount, if any, and to collect it from the defendant’s spouse. In liquidation, the value of the version on the date of the decision is based on the condition of the transferred goods at the time of transfer (TMK m. 235/2).
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 m. 222).
If it is deemed necessary to make the above-mentioned value determination, determination and calculations, it is also necessary to get help from the expert witness or expert witnesses of the subject.
As for the concrete event; the spouses were married on 17.11.1975 and divorced on 26.01.2015 after the decision on the acceptance of the divorce case filed on 29.08.2012 was finalized on 26.01.2015.
The property regime has been terminated from the date of opening the divorce case (TMK m. 225/end). 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 m. 170) separation of goods, from this date until the date of termination of the goods regime, the regime of participation in acquired goods applies (KVK No. 4722. m. 10/202/1).
336 the immovable property subject to the liquidation island numbered parcel 13 was purchased between the spouses on Dec.27.02.2004, and one of the possible answers is that the immovable property registered in the name of the defendant spouse belonged to the spouse on Dec. 12.02.2008, the common daughter of the parties …..it is transferred to a through sale. In the liquidation of the property regime, the provisions of the regime to which the spouses are bound are applied (TMK m. 179).
In the examination carried out in accordance with the legal regulations and principles described above;
When the land registry records, party and witness statements and the entire scope of the file are examined together, the defendant’s real estate subject to liquidation is the joint daughter of the parties about four years before the divorce case …..that he sold it to Dec, that there has been a dispute between the parties since 2007, that they have been living separately since 2009, …..in the statement he made as a witness, it was also seen that he stated in the deed that he had received the real estate as an inheritance from his mother and declared that he had not sold it.
Transfers made by one of the spouses with the intention of reducing the participation of the other spouse during the continuation of the property regime are included in the liquidation as if they existed at the moment when the property regime ended (TMK m.229).
In court, the witness …..the statement of Decencies regarding the fact that he did not purchase the real estate, that the transfer of the real estate will not be considered a sale in kind given the dispute between the parties, that the file is fixed with its entire scope and TMK 229. since it is understood that it has a value to be added in accordance with the article, it is necessary to judge the receivable by taking into account the nature of the real estate at the time of transfer and its value at the liquidation date, and it was decided in writing by misjudging the evidence, found contrary to procedure and the law, and it had to be destroyed.
CONCLUSION : The decision subject to appeal for the reasons shown above is Provisional 3 of the CCP numbered 6100. article 428 of the HUMK No. 1086. subject to the article. It was unanimously decided on 28.09.2017 that it may be decided to OVERTURN the HUMK in accordance with Article 440/I and that the decision against the decision may be corrected within 15 days from the notification of the decision by the Supreme Court of Appeals, and that the plaintiff may be returned to the plaintiff if an advance payment is requested.”