One of the questions spouses ask most often during divorce proceedings is how the home, car, bank deposits and other assets acquired during the marriage will be divided. Under Turkish law, the division of property on divorce is largely determined by the “participation in acquired property” regime (edinilmiş mallara katılma rejimi); this regime rests on specific rules that clarify which assets are included in the division and which remain the personal property of each spouse. In this article we look at how the participation in acquired property regime works, the distinction between acquired property and personal property, the place of the family home in this process, and how a property division lawsuit proceeds in practice.
In a region such as Alanya, where the property market is very active, we see that divorcing spouses are often faced with dividing real estate bought during the marriage, such as an apartment, a plot of land or a holiday home. In this article we focus in particular, and in more detail, on the division of property, rather than on the divorce process itself (uncontested/contested divorce, custody, maintenance).
The Statutory Matrimonial Property Regime in Turkish Law: Participation in Acquired Property
Although the Turkish Civil Code (TMK) allows spouses to choose between different matrimonial property regimes, it also lays down the “statutory property regime” that applies if no choice is made. The statutory property regime in force since 1 January 2002 is the participation in acquired property regime. As a rule, couples who married after that date, or who have not chosen a different regime by a matrimonial property agreement, are subject to this regime.
The basic logic of the participation in acquired property regime is as follows: assets acquired during the marriage are regarded as the result of the spouses’ joint work and effort, and when the regime ends through divorce or otherwise, the value of those assets is, as a rule, shared equally between the spouses. This division is made regardless of whose name the asset is registered in; what matters is that the asset was acquired during the marriage and from what source.
Acquired Property or Personal Property? The Limits of the Division
Most property division lawsuits arise from disputes over whether an asset is “acquired property” or “personal property”. Drawing this distinction correctly directly determines the scope of the division.
What Is Acquired Property?
Acquired property consists of the assets a spouse acquires during the marriage in return for his or her labour. Examples include salaries and income earned through work, payments made by social security or social assistance institutions, compensation paid for loss of working capacity, and assets replacing acquired property (for example, real estate purchased with such income). A home or car bought during the marriage, or most of the savings accumulated, usually fall into this category and are included in the division.
What Is Personal Property?
Personal property, by contrast, is as a rule excluded from the division. This group includes assets a spouse owned before the marriage, assets acquired during the marriage by inheritance or otherwise free of charge (such as donations or gifts), and items intended solely for personal use. For example, a plot of land owned before the marriage, or real estate inherited from a relative during the marriage, is as a rule regarded as personal property and is not subject to property division. We have provided more detailed information on the process for inherited real estate, and how this process works for foreign heirs, in our article on the real estate inheritance process in Alanya.
A dispute frequently encountered in practice concerns an increase in the value of personal property during the marriage; for example, where a building is constructed with joint income during the marriage on a plot bought before the marriage, the asset itself remains personal property, but the spouse who contributed to its acquisition or improvement may, under certain conditions, be able to claim a contribution share. Since such mixed situations are assessed according to the evidence in the specific case, it is important at this point to discuss the particular features of the file with a lawyer.
The Place of the Family Home in Property Division
The family home has a special, separately protected status under the Turkish Civil Code. The dwelling in which the spouses actually live together is regarded as the family home, and any disposition of it (such as a sale or mortgage) requires the express consent of the other spouse, regardless of which spouse it is registered to. This protection continues throughout the marriage, and during divorce proceedings the question of to whom the family home will be allocated is also a matter that the court may assess separately.
As regards property division, if the family home is acquired property, it is included in the assessment like any other acquired property; being the family home does not automatically exclude it from the division, but only provides additional protection with respect to the power of disposition over it. Where an apartment or holiday home bought in Alanya during the marriage is used as the family home, both this restriction on disposition and the question of whether the property falls within the division must be assessed together during the divorce.
How Does the Property Division (Liquidation) Process Work?
Liquidation of the participation in acquired property regime arises when the property regime ends (when the divorce judgment becomes final), and a spouse wishing to make a claim in this respect must file a lawsuit.
When and How Is the Claim Made?
A claim for liquidation of the property regime may be brought together with the divorce case or as a separate lawsuit after the divorce becomes final. In practice, claims for the participation receivable are often pursued in a separate liquidation/participation receivable lawsuit after the divorce case has concluded. It should not be forgotten that these claims, like other receivables, are subject to a limitation period; since when the period starts to run and how long it is may vary according to the features of the file, it is important to consult a lawyer in the light of current legislation.
Valuation and Determination of the Participation Receivable
In the liquidation process, the assets owned by the spouses are first identified one by one, it is determined whether each is acquired or personal property, and each spouse’s “surplus value” is calculated by deducting any debts from the acquired property. The current value of real estate, vehicles and similar assets is usually determined through an expert examination. The participation receivable resulting from this calculation may in some cases be claimed together with interest; however, since the rate and manner of application of such financial calculations are specific to each file, a one-to-one assessment with a lawyer is required for concrete figures.
Co-ownership and Division of Real Estate
The participation receivable is usually paid as a monetary claim; in other words, as a rule the court does not divide the real estate itself but orders payment of the receivable calculated according to the value of the property. However, apart from the liquidation of the property regime, the parties may also be co-owners (in shares) of the same property, for example through inheritance or a joint purchase. In such cases, if the spouses cannot agree on how the property will be divided or sold, an action for partition (ortaklığın giderilmesi / izale-i şüyu) may be brought.
How Is Property Division Reflected in the Protocol in an Uncontested Divorce?
Where the spouses choose an uncontested divorce, they may also include the division of property in the uncontested divorce protocol they draw up between them. The parties are free to agree on which asset goes to whom and whether and how any participation receivable will be paid; the court approves the protocol after assessing whether it protects the rights and interests of the parties.
However, if the protocol does not address property division at all, or the parties have knowingly left this matter outside the divorce protocol, this does not mean that the right to claim a participation receivable automatically lapses. In such a case, a spouse may claim the participation receivable in a separate lawsuit even after the divorce has become final. For this reason, regulating property division clearly and explicitly when preparing the protocol is important in order to prevent uncertainties that may arise later.
What Can Be Done If Asset Concealment Is Suspected?
When divorce comes onto the agenda, in some cases one spouse may attempt to transfer assets registered in his or her name to third parties or to conceal them in order to reduce the burden of the participation receivable. The law contains certain protective provisions against such conduct; for example, it may be requested that certain transfers and donations made with the intention of reducing the other spouse’s participation receivable be taken into account in the liquidation calculation.
In files where such a suspicion exists, it is possible to request an interim injunction (ihtiyati tedbir) over the relevant assets during the proceedings so as to prevent them being disposed of while the case is pending. Since identifying suspicious transfers usually requires examining evidence such as land registry (tapu) records, bank account movements and company records, planning the process with a lawyer at an early stage is important in such cases so that evidence is gathered in time.
Can a Different Arrangement Be Made by a Matrimonial Property Agreement?
Instead of the statutory regime of participation in acquired property, spouses may choose one of the other property regimes provided for by law (for example, the separation of property regime). This choice is made by a matrimonial property agreement drawn up before a notary, either before or during the marriage. A matrimonial property agreement may be preferred especially where one of the parties owns significant assets before the marriage, runs his or her own business, or is expected to inherit significant assets from his or her family in the future.
If no matrimonial property agreement has been made, or on matters on which the agreement is silent, the rules of the statutory regime of participation in acquired property continue to apply. For this reason, clarifying at the beginning of the divorce process whether such an agreement was made during the marriage, and what it contains, is important for the property division lawsuit to proceed on the correct basis.
Conclusion
Property division on divorce is a process in which many elements are assessed together, from correctly classifying acquired and personal property to valuation, and from the special protection of the family home to the existence of a matrimonial property agreement. Since every file has its own evidence and asset structure, obtaining legal support at the start of the process is important both to prevent any loss of rights and to make the process more predictable.
Frequently Asked Questions
Are all assets divided equally on divorce?
No, equal division as a rule applies only to “acquired property” obtained during the marriage. Assets owned before the marriage and assets received by inheritance or donation are regarded as personal property and fall outside this division.
Is a house bought before the marriage divided on divorce?
A house bought before the marriage is as a rule regarded as personal property and is not included in the property division. However, contributions made to this house during the marriage (for example, major renovations or extensions carried out with joint income) may, under certain conditions, give the other spouse a claim to a contribution share.
Is inherited real estate included in the property division?
Assets acquired by inheritance are assessed in the personal property category and are as a rule kept outside the scope of property division. Exceptions to this rule are limited to certain special situations involving assets that replace or derive from the inherited property.
Does the spouse in whose name the house is registered get it in the property division?
No, the land registry (tapu) record is not decisive on its own. What matters is from what source the asset was acquired during the marriage; regardless of whose name the asset is registered in, the value of real estate qualifying as acquired property is as a rule included in the division.
Does the family home automatically go to one spouse on divorce?
The requirement of the other spouse’s consent for any disposition of the family home does not mean that the home will automatically go to one spouse. To whom the home will be allocated and its position in the property division are assessed separately by the court according to the features of the file.
Should the property division lawsuit be filed together with the divorce case?
A claim relating to the liquidation of the property regime may be brought together with the divorce case or as a separate lawsuit after the divorce becomes final. Which route to choose is determined according to the specific circumstances of the file and a strategic assessment. For up-to-date information specific to your file on the property division process, it is advisable to seek professional legal advice from a lawyer.
Legal Notice: This text has been prepared for general information purposes only and does not constitute legal advice. sophoshukuk.com makes no referral, guarantee or promise of outcome. Each case must be assessed on its own particular circumstances; for your specific dispute, please obtain professional advice from a lawyer.