How Turkey’s Marital Property Rules Affect Divorce?

One of the most important issues in family and divorce law and one of the most complicated topics in divorce cases is the matrimonial property regime. With the Turkish Civil Code No. 4721, which entered into force on 01.01.2002, the regime of participation in acquired property, which was not regulated in the previous Civil Code No. 743, was accepted as the legal marital property regime.

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In addition to the regime of participation in acquired property, the Turkish Civil Code No. 4721 regulates the matrimonial property regimes of separation of property, separation of property with distribution and community of property as optional property regimes. Separation of property is also important as it was accepted as the legal marital property regime in the former Civil Code No. 743.

How Marriage Date Determines Marital Property Regime in Turkish Law?

The legal property regime adopted in the former Civil Code No. 743, which was adopted on 17/02/1926, effective on 04/10/1926, and valid until 31/12/2001 is the separation of property. As of 01.01.2002, the legal marital property regime is the regime of participation in acquired property.

Article 10 of the Law No. 4722 on the Enforcement and Implementation of the Turkish Civil Code, which was enacted before 01.01.2002, stipulates how the property regime shall be determined for the spouses married before 01.01.2002. The aforementioned article of the Law is as follows.

“B. Marital Property Regimes 

Article 10 – Spouses who were married before the date of entry into force of the Turkish Civil Code shall maintain the property regime to which they were subject until that date. Unless the spouses choose another property regime within one year starting from the date of entry into force of the Law, they shall be deemed to have chosen the legal property regime effective from this date. 

Until the divorce or annulment lawsuits filed before the entry into force of the Turkish Civil Code are finalized, the property regime to which the spouses are subject shall continue. If the lawsuit results in a divorce or annulment decision, the provisions regarding the termination of this property regime shall apply. In case the lawsuit is dismissed, if the spouses do not choose another property regime within one year following the finalization of the decision, they shall be deemed to have chosen the legal property regime effective from the effective date of the Law. 

Provided that the spouses may agree that the legal property regime shall be valid from the date of marriage with a property regime agreement within the one-year period stipulated in the paragraphs above. 

In the event that the community of property or community of property regime is transformed into the legal property regime in accordance with the above provisions, the provisions of the Turkish Civil Code regarding the termination of the relevant property regime shall apply.”

Accordingly, for the spouses who were married before 01.01.2002, the property regime they were subject to until this date, and after this date, the legal property regime of participation in the acquired property will be applied. However, the spouses may determine the property regime within one year after the entry into force of the Law, that is, until 01.01.2003.

If there is a divorce or annulment of marriage case filed before 01.01.2002 and ongoing as of this date, the marital property regime to be applied is the property regime that the spouses were subject to according to the old Law. However, if this divorce or annulment of marriage case results in a dismissal decision and the spouses do not determine another property regime within one year following the finalization of the decision, they are deemed to have chosen the regime of participation in acquired property to be effective as of 01.01.2002, the effective date of the Law.

Along with these, the spouses may also determine the property regime valid from the date of marriage as the regime of participation in acquired property. However, for this purpose, they must conclude a property regime agreement within one year as of 01.01.2002, the effective date of the law.

What Is A Property Regime Agreement In Turkey?

A property regime agreement is an agreement in which the spouses determine how their property will be shared. This agreement can be formed by choosing one of the four basic property regimes according to the Turkish Civil Code (participation in acquired property, separation of property, separation of property with sharing, community of property) or by making special arrangements. The marital property regime agreement is made in order to prevent uncertainties about how the property will be divided in the event of a possible divorce or death between the parties. Along with all these, it is not an obligation for spouses to conclude a marital property regime agreement. If they do not make a property regime agreement, the spouses are deemed to have accepted the legal property regime, the regime of participation in acquired property.

When and How to Make a Property Regime Agreement Under Turkish Law?

According to Article 203 of the Turkish Civil Code, it is possible to conclude a property regime agreement before or after marriage. According to Article 205 of the aforementioned Law, the property regime agreement must be made in the form of approval at a notary public or in the form of a notarial arrangement. In addition, the spouses may also declare in writing the property regime they have chosen during the marriage application. It is also an obligation for the property regime agreement to be signed by the parties and, if necessary, by their legal representatives.

Participation in Acquired Property Under Turkish Law

With the adoption of the Turkish Civil Code in 2002, the regime of participation in acquired property was accepted as the legal property regime and unless otherwise agreed, this property regime is applied directly between the spouses in marriage. In understanding the regime of participation in acquired property, it is important to understand what is acquired property and what is personal property.

The acquired property is the assets acquired by the spouses during the marriage by working, labouring, engaging in commercial activities or in any other way. The salaries, wages and earnings of the spouses; payments made to the spouses such as social security or unemployment benefits, severance payments, retirement income obtained in return for work, and movable or immovable property acquired during the marriage are considered as acquired property and are divided equally between the spouses upon the termination of the property regime.

Personal property, on the other hand, is the property that one of the spouses owned before the marriage or acquired during the marriage through gratuitous gains such as donations, inheritance, etc. and which is not the common property of the other spouse. Property owned by one of the spouses before the marriage, all kinds of property rights obtained through inheritance or donation, moral compensation receivables, and items specific to the personal use of the spouses, such as jewellery and ornaments of the wife, are considered personal property.

Separation of Property

In the separation of property regime, both spouses are the unconditional owners of the property they own. It is not possible for one of the spouses to claim rights on the property owned by the other. In this property regime, each spouse becomes the owner of the movable or immovable property, bank accounts, income and other assets acquired during the marriage. Each spouse is solely responsible for his/her own debts and obligations. He/she cannot be held responsible for the debts of the other spouse. When the marriage ends, both spouses retain their own assets and cannot claim any rights over the other spouse’s assets. Under this regime, there is no division of property in case of divorce.

Separation of Property With Distribution

The regime of separation of property with distribution is a property regime that envisages the distribution of the assets acquired by the spouses during the marriage within the framework of certain rules at the end of the marriage. This regime combines the elements of separation of property and distribution of property, aiming both to protect the assets of the spouses and to share the assets acquired during the marriage in a fair manner. Due to the nature of marriage, some goods such as the family residence and household goods will be dedicated to the family during the marriage. In the event that this property regime is applied, in the event of the termination of the property regime, in addition to the separation of property regime, an equal or equitable sharing of the marital property between the spouses will be made.

Community Property

The community of property regime is a property regime in which all assets of the spouses during the marriage are considered to be joint and both spouses have equal rights over these assets. This regime includes almost all of the assets of the spouses in joint ownership, including both acquired property and personal property. The property is considered to be owned jointly by the spouses. And during liquidation, the provisions of joint ownership apply.

Termination and Liquidation of Property Regime 

The property regime is terminated in certain circumstances and can only be liquidated upon request. Property regime expires;

• In case of the death of one of the spouses, the property regime as of the date of death;
• If it is terminated by divorce, on the date the divorce case is filed;
• If it is terminated by annulment, on the date the annulment lawsuit is filed;
• If the spouses have agreed on another property regime, on the date of the agreement.

Conclusion

In Turkey, property regimes constitute an important part of divorce cases. Turkish Civil Code No. 4721, which entered into force on 01.01.2002, accepted the regime of participation in acquired property as the legal property regime. In addition, optional property regimes such as separation of property, separation of property with sharing and community of property are also regulated. Issues such as the determination of the property regime according to the date of marriage, the regime to be applied in divorce or annulment cases, how and when to conclude the property regime agreement, the termination and liquidation of the property regimes are discussed in detail in the law. The property regimes regulated by the Turkish Civil Code have been established in order to ensure that the spouses’ assets are shared fairly during and after the marriage. Each property regime brings different rights and obligations on the assets of the spouses, and choosing the right property regime is of great importance to prevent possible disputes.

Your Divorce Lawyer in Turkey

The choice of property regime is one of the most important elements of the legal processes you may face during divorce or marriage. Your family law and divorce lawyers in Istanbul: Viridis Legal Partners are ready to guide you in determining the most appropriate property regime for you and protecting your rights in the process. For legal assistance in drafting and signing property regime agreements, dissolution proceedings, divorce proceedings, property division and all other family law matters, contact us today.