In the Turkish Civil Code, the system governing the financial relations between spouses is referred to as the “property regime.” The property regime and legal regime between spouses are regulations governing the management of assets such as money, securities, and real estate that the spouses owned before marriage or acquired during marriage, as well as the rights and powers of the spouses over each other’s assets and their liability for debts.
During the continuation of the property regime, one spouse has the right to participate in the acquired property at a rate of half of the other spouse’s residual value. In the liquidation of the participation regime in acquired property, “additional values” are taken into account in the calculation of the residual value participation claim. According to Article 229 of the Turkish Civil Code, transfers made by one spouse during the year preceding the termination of the property regime, without the consent of the other spouse, for the purpose of reducing the other spouse’s participation during the continuation of the property regime, through gratuitous gains other than ordinary gifts, shall be included in the liquidation as if they had occurred at the time of termination of the property regime.
The court decision may also be enforced against third parties who benefited from the acquisition or transfer, provided that they are notified of the lawsuit. In this case, Article 241 of the same law shall subsequently apply against the third party. When a claim for payment is filed in accordance with Article 229, whether the conditions for acquisition or transfer set forth in the article have been met shall not be subject to re-examination.
An example Supreme Court decision on this matter is as follows:
Turkish Court of Cassation, 8th Civil Chamber, Case No. 2017/12991, Decision No. 2017/11707, Date: September 28, 2017
“CASE: In the case described above, following the trial between the parties, the Court ruled to dismiss the case. After the decision was appealed by the defendant’s attorney, the Chamber reviewed the case file and deemed it necessary.
DECISION:
The plaintiff’s attorney requested and sued for the defendant to pay the plaintiff 150,000.00 TL for real estate acquired during the marriage.
Th defendant’s attorney argued for the dismissal of the case.
The Court dismissed the case. Th decision was appealed by the plaintiff’s attorney.
It is the responsibility of the parties to assert the existence of the material facts, and it is the responsibility of the judge to make the legal assessment and determine the applicable legal provisions (HMK m. 6100. 33). Based on the manner in which the case was brought, the case relates to a claim for non-participation in the value.
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. There is no right to participate in the residual value; including amounts obtained from added values (TMK Art. 229) and without equalization (TMK Art. 230), the spouse’s acquired property (TMK Art. 219) from the total value, after deducting the debts related to this property, from the residual value (TMK Art. 231) the other spouse is entitled to more than half (Turkish Civil Code, Article 236/1).
Participation is a right arising from the Law, and the spouse claiming this right is not required to be the income earner or to have contributed to the acquisition, improvement, or preservation of the property.
In the liquidation of the participation regime for acquired property, “participating values” are taken into account in calculating the participation claim on the residual value. According to Article 229 of the Turkish Civil Code No. 4721, property acquired by either spouse during the year preceding the termination of the property regime, without the consent of the other spouse, through ordinary gifts, excluding unpaid debts, property acquired through the participation of the other spouse, transfers that would reduce the property during the continuation of the regime, and transfers made with the aim of terminating the regime as soon as possible, are also included in this scope.
A lawsuit may also be filed against third parties benefiting from the community property regime, provided that they have been notified of the situation. In this case, the provision of Article 241 of the same law shall subsequently apply to the third party. According to Article 229, when a claim for payment is filed, whether the conditions for acquisition or transfer specified in the article have been met shall not be subject to re-examination.
In such disputes, the defendant spouse must first investigate and determine whether the acquisition or transfer was made in accordance with the purpose and direction of Article 229.
If the court finds that an acquisition or transfer was made without consideration, a ruling must be made on whether the plaintiff has the right to participate in the calculation made by accepting the property in question, to determine the amount, if any, and to collect it from the defendant spouse. In liquidation, the value of the version on the date of the decision shall be taken as the basis according to the status of the transferred property at the time of transfer (TMK m. 235/2).
A person claiming that a property belongs to one of the spouses is obliged to prove their claim. Property that cannot be proven to belong to one of the spouses shall be considered the joint property of the spouses. All property of a spouse is considered acquired property until proven otherwise (TMK m. 222).
If it is deemed necessary to determine the value, identification, and calculation as mentioned above, assistance should be sought from an expert or expert witnesses on the subject.
In the present case, the spouses married on November 17, 1975, and divorced on January 26, 2015, when the decision to accept the divorce case filed on August 29, 2012, became final on January 26, 2015. The property regime ended on the date the divorce case was filed (TMK m. 225/final). Since it was not claimed that another property regime was chosen by contract, the separation of property regime applied from the date of marriage until January 1, 2002, when TMK No. 4721 came into force (TKM 743 m. 170), and from that date until the date the property regime ended, the participation in acquired property regime applied (KVK No. 4722 m. 10/202/1).
Parcel 336, Lot 13, a real estate property, was purchased by the spouses on February 27, 2004. It is understood that the real estate property registered in the name of the defendant spouse was owned by the defendant spouse on February 12, 2008, and was transferred to the parties’ joint daughter, …, by way of sale. In the liquidation of the property regime, the provisions of the regime to which the spouses are subject shall apply (TMK m. 179).
In the examination conducted in accordance with the legal regulations and principles explained above;
When the land registry records, the statements of the parties and witnesses, and the entire scope of the file are examined together, it is understood that the defendant sold the real estate subject to liquidation to ….., the couple’s daughter, approximately four years before the divorce case. sold it to DEC, that there had been discord between the parties since 2007, that they had been living separately since 2009, and that ….., in her statement as a witness, also stated that she had inherited the immovable property from her mother and declared that she had not sold it. Transfers made by one spouse during the continuation of the property regime with the intention of reducing the other spouse’s participation are included in the liquidation as if they had occurred at the time the property regime ended (TMK m.229).
The court determined that the witness’s statement of good faith that he did not purchase the immovable property, considering the dispute between the parties, meant that the transfer of the immovable property could not be considered an actual sale, as determined by the case file and as it carries added value pursuant to Article 229 of the Turkish Civil Code, the claim must be adjudicated by taking into account the nature of the immovable property on the date of transfer and its value on the date of liquidation. The decision rendered in writing is contrary to procedure and law due to the misinterpretation of evidence and must be overturned.
CONCLUSION:
For the reasons stated above, the judgment subject to appeal is subject to Provisional Article 3 of Civil Procedure Code No. 6100 and Article 428 of Civil Procedure Code No. 1086. On 28.09.2017, it was unanimously decided to REVERSE the decision in accordance with Article 440/I of the Code of Civil Procedure, and it was decided that the decision against the judgment should be corrected within 15 days of the notification of the Court of Cassation, and that if a deposit was requested, it could be returned to the plaintiff.