TC
Supreme
Court
Decision No: 2014/14603
Decision No: 2015/21591
Date: 2.12.2015
Regarding the appeal filed by the plaintiff’s attorney against the decision of the Karamürsel Civil Court of First Instance dated 14.02.2014 and numbered …, which dismissed the claim arising from the property regime between N.. B.. and M.., despite the timely request by the plaintiff’s attorney, upon review of the file, it was deemed necessary:
DECISION
The plaintiff N.’s attorney filed a claim for the liquidation of the property regime and a claim for debt regarding the real estate specified in the statement of claim.
Th defendant M.’s attorney defended the dismissal of the case.
The court dismissed the case on the grounds that the plaintiff’s contribution to the acquisition of the property in question could not be proven, and the plaintiff’s attorney appealed the decision.
1- Since the subject matter of the lawsuit, independent sections numbered 4 and 13, were purchased through auction and registered in the name of the defendant after the termination of the property regime, it cannot be decided within the framework of the provisions on the liquidation of the property regime. However, according to the general provisions of the Code of Obligations, the plaintiff can file a lawsuit by filing a claim lawsuit in the general courts. As the decision to dismiss the claim regarding these properties was correct, it was necessary to decide to reject the appeals regarding these properties.
2- In appeals concerning independent section 12, the subject matter of the case is the parties’ presentation of the material facts, the judge’s legal characterization, and the determination of the applicable legal provisions (HMK 33/6100). Depending on the form in which the case is presented, the case relates to the request of one of the spouses to no longer participate in the acquired property. Property
During the continuation of the property regime, the other spouse has the right to participate in half of the increase in value of the acquired property owned by one of the spouses. The spouse shall not be entitled to participate in the residual value; the value to be collected (TMK 229) and the value of the spouse’s acquired property without equalization (TMK 230), including the amounts obtained (TMK 219), shall be deducted from the total value of the debts related to these properties, and the remaining residual value (TMK 231.m), the other spouse is entitled to more than half (TMK 236/1.m). Participation is a right arising from the Law, and the spouse claiming this right does not need to be the income earner or to have contributed to the acquisition, improvement, or preservation of this property.
In calculating the claim for participation in the residual value, the fair values of the existing assets at the date of termination of the property regime, excluding their status at the date of liquidation, shall be taken as the basis (TMK 227/1, 228/1, 232, and 235/1). According to the case law of the Court of Cassation, the date of liquidation is the date of the decision.
A person claiming that an asset belongs to one of the spouses is responsible for proving their claim. Assets belonging to spouses that cannot be proven are considered their joint property.
All property of a spouse is considered acquired property until proven otherwise (TMK 222).
In order to determine the value, make the assessment, and perform the calculations mentioned above, assistance should be sought from experts or expert witnesses when necessary.
In this specific case, the spouses married on August 24, 1993, and divorced upon the finalization of the judgment accepting the divorce petition filed on September 15, 2010. The property regime ended on the date the divorce petition was filed (TMK 225/final). Since it was not claimed that another property regime was chosen by contract, the regime of separate property applies from the date of marriage until January 1, 2002, when the Turkish Civil Code No. 4721 came into force (TKM 743 170.m), and the regime of participation in acquired property applies from that date until the date the property regime ended. (Article 10 of Law No. 4722, TMK 202/1.m).
The independent section No. 12 subject to liquidation was purchased on 04.12.2009, when the community of acquired property regime applied between the spouses, and was registered in the name of the defendant spouse. The provisions relating to the regime to which the spouses are subject apply in the liquidation of the property regime (TMK 179.m). According to the land registry record in the file… A mortgage has been established in favor of the bank. Based on the court’s decision that a share in the case would be taken, the case was dismissed with an expert report, and the plaintiff’s share could not be proven.
Considering the manner in which the case was brought and the date of acquisition of the immovable property, the plaintiff’s claim now relates to the value-added tax receivable, and it is not necessary to collect a participation share for the collection of the receivable. Accordingly, while a decision should be made regarding this independent section by gathering the evidence of the parties within the framework of the claim and defense, the conclusion reached due to the incorrect evaluation of the evidence is not accurate.
CONCLUSION:
The above-mentioned provision (2) of the appeal petition, the plaintiff’s attorney’s other appeal requests, and the grounds for the decision to dismiss the case, as stated in paragraph 388/4 of the SPK (1) and shown in section (HMm297/ç) above, are related to the REVERSAL of the decision. Pursuant to Article 440/I of the SPK, it was unanimously decided on 02.12.2015 that a request for correction of the decision may be made within 15 days of the notification of the Presidency of the Court of Cassation and that the advance fee of TL 25.20 may be refunded to the plaintiff upon request.