There are two types of matrimonial regime models in Turkish Law. The first one is the Separation of Estates Model and the other one is the regime of Participation in Acquired Property.   

1. The model applied in marriages before 01.01.2002 (Separation of Estates Regime)

The Turkish Civil Code No. 4721 entered into force on 01.01.2002. The regulation regarding the matrimonial regime to be applied between the couples who were married before this date was prepared in accordance with Article 10 of the Law No. 4722 on the Enforcement and Implementation of the Turkish Civil Code. According to the first paragraph of the article, the property regime to which they are subject until that date continues between spouses who were married before the date of entry into force of the Turkish Civil Code -01.01.2002-. The regime to be applied to the property acquired within the marriage union until 01.01.2002 is accepted as the separation of estates regime.

In the separation of estates model, each spouse has the right to manage, benefit from, use and dispose of their assets as well as the right to own their assets. The assets of the husband and wife continue to exist independently of each other. There is no property owned by the marriage union. Upon dissolution of the marriage, each spouse receives the assets he/she owns; the other spouse has no real or personal rights over the assets of the other spouse arising from the marriage union. The economic interests of the spouses are prioritized in this model and the autonomy of the spouses is fully ensured. In this system, direct or indirect sharing of the assets acquired by the spouses during the marriage is not accepted[1]. In the property separation regime, there is a financial relationship as if there was no marriage.[2] This system, which is centralized in the individual ownership or right ownership of each spouse at the point of sharing, and which does not provide any interest to the other spouse at the level of neither ownership nor right of claim, was accepted as the legal property regime under our former Civil Code.[3] In the separation of estates regime, the property acquired before the marriage shall belong to the winning spouse regardless of the way in which it was acquired, and the property acquired after the marriage shall belong to the winning spouse regardless of the way in which it was acquired. [4] No spouse shares the assets that they have acquired in return, nor do they share the assets that they have acquired gratuitously. Thus, both spouses have separate and independent “private assets” while the marriage union continues.[5]  Such separation and independence considerably reduces the intermingling of the assets of the spouses and their being affected by each other. For this reason, as in the acquired property regime, it is not possible to find the “participation receivable” and to determine the “value increase receivable”.[6] In our current Civil Code, this system is accepted as the system of Separation of Estates with Sharing as an option. This means that spouses can choose this property regime as the property regime with prospective effect.

If such choice is not made, the acquired property regime, which is the legal matrimonial property regime, will be applied to the assets acquired after 01.01.2002. In the separation of property system; each spouse has a separate and independent property. [7]

To list the general features of the separation of estates regime;[8] i.) each spouse has independent and separate assets, the marriage union does not have a common asset, ii.) each spouse manages, benefits from and disposes of his/her own assets, iii.) there is no sharing (at the same or at the level of the right to claim) when the marriage union ends, iv.) each spouse is individually responsible for debts.

2. Acquired Property Model (Property Partnership)

The regime of participation in acquired property was adopted by the Turkish Civil Code No. 4721. After 01.01.2002, which is the effective date of the law numbered 4721, the date of marriage will also be the beginning of the regime of participation in acquired property, unless the couples married after 01.01.2002 have not chosen one of the optional property regimes regulated in the law by contract. In this context; the property acquired after 01.01.2002 by couples married before 01.01.2002 is subject to the acquired property regime. In the Acquired Property Model (Property Partnership) model, we see that the marital union formed between the spouses upon marriage is also ensured on the property values. The union of marriage prevails over the spouses as individuals. The assets of each spouse form a legal integrity with the assets of the other spouse and constitute a common property. The spouses have the right of joint ownership over the common assets, manage, use, benefit from and dispose of the common assets in accordance with the benefit of the family union. During the legal property regime, each spouse may have the right to receive half of the residual value of the other spouse’s residual value in return for the material and moral contributions of the spouses in the marriage union.[9]  The claim for participation in the residual value is an ordinary claim and does not differ from a money claim.[10] Upon dissolution of the marriage, joint assets are divided between the spouses. With the termination of the property regime – the date of the termination of the property regime is the date of the finalization of the divorce decision and the date of the divorce lawsuit – the division of the existing assets will be made.

3. Separation of Acquired Property and Personal Property

Spouses’ assets are divided into two groups; personal property and acquired property.

For our subject, it is of great importance to distinguish and define between acquired property and personal property. This is because, while acquired property is subject to division and each spouse is entitled to ½ of the contribution, personal property is not subject to division, and the property belongs to the spouse who owns it or in whose name it is registered. In other words, if the property belonging to one of the spouses is acquired property, it will be taken into consideration in the liquidation of the property regime, but if it is personal property, it will not be taken into consideration in the liquidation.[1]

3.1 Acquired Property

Pursuant to Article 219/1 of the Turkish Civil Code; acquired property is the assets acquired by each spouse during the continuation of this property regime.[2]  The property acquired by the spouses between the spouses from 01.01.2002, when the regime of participation in the acquired property started, until the time when the property regime between the spouses will be terminated by the decision of the judge or by the spouses making a property regime agreement and choosing another property regime. The acquired property must have been acquired during the continuation of the property regime. The property acquired by the spouses within the marriage union as of 01.01.2002 is acquired property. The aforementioned acquired properties are subject to division in the liquidation of the property upon the finalization of the divorce case. Each spouse has a participation claim arising from the law at the rate of ½ on the aforementioned properties. It should also be noted that the assets acquired by a spouse after 01.01.2002 may be personal property – in this case, the other spouse has no right to claim such property, and this property cannot be subject to division. We will explain this issue in more detail in the personal property section.

In sum, in order to speak of the existence of acquired property, the following conditions must be met[3]: i.) the first condition is that there must be an asset value, ii.) the second condition is that the acquisition must have taken place during a period when the legal property regime existed and continued, iii.) the third condition is that the acquisition must have been obtained by giving in return, iv.) the fourth condition is that the acquired assets must not have been turned into personal property by law or contract.

If we need to evaluate the conditions mentioned above in a little more detail;

1. The existence of an asset value

The concept of property in Article 219 of the Turkish Civil Code, which defines and regulates acquired property, is not used in a narrow and technical sense to refer to a thing or object.[4]  What is meant by this is asset value, i.e. any value that is monetary and can be converted into money. The concept of property includes movable and immovable property, as well as rights in rem and even anticipated rights.[5]

2. The acquisition took place during a period when the legal property regime existed and continued

The transformation of a property into acquired property is subject to temporal limitation. As it is clearly understood from the following judicial decisions, property acquired before the commencement of the property regime – i.e. 01.01.2002 – or acquired after its termination shall not be considered as acquired property.

3. The spouse has obtained gain by reciprocating

A reward must be given in order for the gain to be received. At this point, it is necessary to elaborate on the term “consideration”. The act that the spouse gives or performs in return for the acquisition of an asset may be a labor-based act.[6] On the other hand, the spouse may acquire the property by giving money. A sale contract is the most typical example. If the spouse’s acquisition is gratuitous, then, as we will explain below under the heading “personal property”, this asset value becomes personal property and cannot be subject to division.

4. The acquired asset value must not have been converted into personal property by law or contract.

We do not make any explanations in this section, as the conditions under which personal property is to be mentioned in accordance with the Law and the situations in which the spouses enter into a property regime agreement will be discussed in detail below.

At this point, we would like to discuss the above-mentioned judicial decisions that set out the criteria for acquired property.

As a matter of fact, the decision of the 8th Civil Chamber of the Court of Appeal dated 18.06.2012, 2011/7583 E., 2012/5642 K provides that;   

“The vehicle with license plate 46 …560, which is the subject of the dispute, is considered as acquired property in principle, since it was acquired on 22.10.2018, when the regime of participation in acquired property was valid.”

Since the vehicle mentioned in this decision was acquired after 01.01.2002 – that is, after the legal property regime, the acquired property regime was adopted – the spouses’ partnership on the vehicle is in question.

Decision of the 8th Civil Chamber of the Court of Appeal dated 15.07.2010 and numbered 2010/63 E., 2010/3936 K provides that;

“Since the money subject to the lawsuit was acquired during the period when the legal property regime, the regime of participation in acquired property, was valid, and since it could not be proved that the foreign currency was the defendant’s personal property (Article 222/last of the Civil Code), the participation claim of the plaintiff should be determined as 1/2, taking into account the principles and tenets explained above.” 

In the case subject to this decision, since the money subject to the lawsuit was acquired after 01.01.2002, which is the date of the acquired property regime, the money in question is not the personal property of the defendant, and the spouses have ½ right each on the money in question. Accordingly, the claimant’s claim for participation for the ½ part was appropriate.

Decision of the 8th Civil Chamber of the Court of Appeal dated 03.10.2011 and numbered 2011/596 E., 2011/4816 K provides that;

“The immovable property was purchased and registered in the name of the defendant husband Ramazan Kesici on 21.09.2005 during the period when the regime of participation in acquired property was valid after 01.01.2002. In that case, the lawsuit is related to the claim for participation receivable arising from the regime of participation in acquired property.

In this decision, since the immovable property was purchased within the period of the acquired property regime, which is the legal property regime, it was accepted that the spouses have ½ right each on the property.

Decision of the 8th Civil Chamber of the Court of Appeal dated 22.12.2009 and numbered 2009/5085-6338 provides that:

“The villa subject to the lawsuit is an acquired property purchased during the period when the regime of participation in acquired property was valid between the parties. The property in question was purchased on 09.08.2006 after the finalization date of the divorce case that ended the marriage union. “

In the aforementioned decision, since it was established that the villa subject to the lawsuit was acquired on 09.08.2006 – that is, after 01.01.2002, when the acquired property regime was switched to the acquired property regime – the said villa was acquired property and the plaintiff spouse could claim 1/2 of the participation receivable from the defendant spouse. 

Decision of the 8th Civil Chamber of the Court of Appeal dated 13.06.2013, numbered 2013/220-9172;

“The vehicle subject to the lawsuit was purchased and registered in the name of the defendant on 08.04.2005, when the regime of participation in acquired property was valid between the parties. The immovable property is acquired property as of the date of acquisition; the contrary must be proved by the defendant in accordance with Article 222/1 of the TCC.”

Decision of the 8th Civil Chamber of the Court of Appeal dated 19.03.2013, numbered 2012/13149, 2013/3888

“Among the immovables subject to the lawsuit, 1390 block 1 parcel was purchased on 19.06.2006, the houses and shops numbered 1, 12 and 13 on 2875 block 1 parcel were purchased on 08.06.2005, and the vehicle with 06 EZB 59 license plate was purchased on 01.09.2008 on behalf of the defendant and registered in the title deed and traffic. According to the statements brought in terms of the money in the bank account on behalf of the other defendant, it is understood that the account opening dates are after 01.01.2002 and within the marriage union. As of the dates of acquisition and opening of the accounts, the claimant’s claim is in the nature of participation receivable.”

Decision of the 8th Civil Chamber of the Court of Appeal dated 26.04.2011, numbered 2010/5664-2011/2495;

“As a rule, the parties have the right to demand surplus value from each other on the goods acquired during the period when the participation in the acquired goods regime is valid, pursuant to Article 231 of the Turkish Civil Code, and Article 236/1 of the same law. In accordance with the article, they are mutually entitled to half of the residual value. In accordance with the 222/last paragraph of the TMK, all the properties of a spouse are considered acquired property until proven otherwise.”

3.2 Personal Property

All kinds of assets acquired before or after the termination of the regime of participation in acquired property between the spouses are valuable personal property, cannot be subject to sharing, and the other spouse has no right. In some cases, even if the property was acquired within the marriage union after 01.01.2002, that is, within the period when the acquired property regime was applied, this property may be considered as personal property in accordance with Article 220 of the Turkish Civil Code. In such case, such property is not acquired property, the other spouse does not have any right to the property, and the property belongs to the spouse in whose name it was acquired. Unlike acquired property, personal property is not considered as an acquisition of the marital union that must be shared.[7] The assets belonging to the personal property group belong to the spouses, not to the marriage union, in line with the purpose served by these assets. Therefore, personal property is not shared with the other spouse in the liquidation of the regime of participation in acquired property, and it is left to the disposal of the spouses during the continuation of the regime of participation in acquired property, unlike the acquired property.[8] 

Article 220 of the Turkish Civil Code lists personal property as follows:

1- Property for the sole personal use of one of the spouses,

2- The assets belonging to one of the spouses at the beginning of the property regime or acquired by one of the spouses through inheritance or any form of gratuitous acquisition,

3- Receivables for moral damages,

4- Substitutes for personal property,

As it is relevant to our subject matter, we will deal with Article 2 mentioned above at this point. There is no dispute regarding the other cases mentioned above in the case file in which we are presenting this legal opinion.

We will examine this article under two headings;

1. Property Acquired Before the Regime of Participation

Property acquired before the beginning of the acquired property regime period, which is 01.01.2002, is personal property and cannot be subject to division. Therefore, “assets belonging to one of the spouses at the beginning of the property regime” are considered as personal property. As a matter of fact, the decision of the 2nd Civil Chamber of the Court of Appeal numbered 2005/16726 E., 2006/1095 K. and dated 07.02.2006 states that “the assets belonging to one of the spouses at the beginning of the property regime are the personal property of that spouse”. 

2. Among the possibilities mentioned in Article 2, the one that is relevant to our case is the donation of a share or right to property by one spouse to the other spouse.

Accordingly, within the period of the acquired property regime within the marriage union, that is, even after 01.01.2002, the property values that the spouse gains gratuitously to the other spouse in any way are the personal property of the gaining spouse, it is not acquired property, the spouse who transfers their right in this property does not have any right, this property belongs to the spouse registered in their name. The important point here is the existence of the gratuitous element. If the spouse transfers a right or a receivable to the other spouse, it is necessary to evaluate whether the transferor spouse gains any benefit from this transfer.  If the transferor spouse does not obtain any gain and transfers the property, receivable or right without any consideration, in this case, they cannot claim acquired property, participation receivable, contribution share or value increase share for this property, this property is now the personal property of the transferee spouse. This is because, in the regime of participation in acquired property, acquired property is not subject to division without any consideration. It should be taken into consideration in the liquidation as the personal property of the acquiring spouse. As stated above, this is the case even if it was acquired during the property regime. Because, there is no consideration for such acquisitions.[9]

Decision of the 8th Civil Chamber of the Court of Appeal dated 19.04.2011 and numbered 2010/5450 E., 2011/2306 K provides that;

“the plaintiff states in his petition that “…I bought the car with my own work and I put the car in the defendant’s name to make my wife happy…” and in the face of this statement, it should be accepted that the vehicle was donated by the plaintiff to the defendant and that the vehicle is the personal property of the defendant.”

-In the case subject to the aforementioned Court of Appeal decision, the vehicle was transferred by the plaintiff to the defendant spouse gratuitously. The fact that the transferor spouse made the transfer without receiving any consideration reveals that the said transfer is in the nature of a donation and that the donated property is now the personal property of the defendant. Thus, the transferor spouse cannot claim any rights regarding the transferred property. We will include many precedent judicial decisions on this issue in the following sections.

4. Participation Receivable, Contribution Share and Share of Increase in Value in Acquired Property Regime

In the acquired property regime, one of the spouses may claim participation receivables, contribution share or share of increase in value from the other spouse, if the conditions are present. Let us now examine what these mean.

4.1 Participation Receivables

Under the former Turkish Civil Code, unemployed housewives could not claim rights to the property acquired during the marriage since they did not have a financial contribution that could be measured in money. As of 01.01.2002, the legislator has granted the non-working spouse a right to ½ of the acquired property within the marriage union.  In other words, during the continuation of the acquired property regime – that is, from 01.01.2002 until the date of the divorce proceedings – the other spouse has the right to claim participation in the acquired property owned by one spouse at the rate of half of the residual value. The right to participation in the residual value is the right of the other spouse to receive half of the residual value remaining after subtracting the debts related to these properties from the total value of the acquired property of the spouse, including the amounts obtained from the values to be added and the amounts obtained from equalization.

4.2 Share of Increase in Value

Article 227/1 of the Turkish Civil Code provides that;

“If one of the spouses has contributed to the acquisition, improvement or preservation of a property belonging to the other without receiving any or appropriate consideration, he/she shall have the right to claim for the increase in value of this property during the liquidation in proportion to his/her contribution and this claim shall be calculated according to the value of that property at the time of liquidation; in case of a loss of value, the initial value of the contribution shall be taken as basis.”

Pursuant to the aforementioned article, if the spouse has contributed to the acquisition, improvement or protection of the property owned by the other spouse (with his/her personal property), he/she may claim this contribution under the “value increase share”. If we list the conditions for claiming the value increase share receivable; i.) firstly, there must be a formal marriage, ii.) the property regime must end, iii.) the contribution must be made to the acquisition, protection or improvement of the other spouse’s property, iv.) the most important condition, which is also relevant to our case, is that the contributing spouse has not received any or appropriate compensation. The most important dispute encountered in practice is the situation where the spouse has both a value increase claim and a contribution claim in the acquired assets. In this case, firstly, the spouse’s value increase receivable will be deducted from the asset value, and then the spouse’s contribution receivable will be calculated over the remaining value. [10]

4.3 Contribution Share Receivable

If the contribution made by the spouse to the other spouse’s assets before 01.01.2002, which we mentioned above in the section on the value increase receivable, there is a contribution receivable. The Court of Appeal has included a similar practice under the name of contribution before the entry into force of the acquired property regime, which is the legal property regime.[11]  The contribution receivable, which developed with the practice of the Court of Appeal, was legalized with the new Turkish Civil Code numbered 4721.[12]  The difference between the contribution share receivable and the value increase receivable is that in the contribution share receivable, the fair value on the date of the lawsuit (release) is taken into consideration when determining the contribution rate, while in the value increase share receivable, the fair value on the date of the decision (release) is taken into consideration when determining the contribution rate.     

[1] Prof.Dr.Nazan MOROĞLU, Property Regimes in the Civil Code, p.25, 27

[2] Prof.Dr.Ahmet Kılıçoğlu, Regime of Participation in Acquired Property, p.42

[3] Prof.Dr.Suat SARI, The Regime of Participation in Acquired Property as a Legal Property Regime in the Marital Union, p.13

[4] SARI, s. 136

[5]   HAUSHEER/REGINA AEBI-MÜLLER, Art.197, p.1112

[6]   Prof.Dr.Turgut AKINTÜRK, Turkish Civil Law, Family Law Adapted to the New Civil Code, Volume 2, p.146

[7] ZEYTİN, p.166

[8] Hausheer/BASLER Art. 198 Nr.1 ff.

[9] ACAR, p.245

[10] Court of Appeal 8th CC, 05.11.2019, decision numbered 5762/9849

[11] In the decision of the General Assembly of the Court of Appeal numbered E.2000/2-959 K.2000/972; the compensation to be received by the spouse due to the unrequited contribution of the other spouse to the acquisition of property is called contribution compensation.

[12] Burhan Hayran, Commentary on Property Regimes, p.225 et seq.

[1] HEGNAUER, C./BREITSCHMID,P.Grundrissdes Ehereechts, 4.Aufl., nr.22.07

[2]   Piotet P., Die Errungenschaftsbeteiligung nach schweizerischhem Ehegüterrecht, p.13

[3]   Prof.Dr.Faruk ACAR, Family Residence and Matrimonial Regimes in Our Family Law, p.98

[4] ACAR, p.393

[5]   ACAR, p.393

[6] TUOR, SCHNYDER, JUNGO, Das Schweizerische Zivilgesetzbuch, p.338

[7] ACAR, p.98

[8] ACAR, p.98

[9] Prof.Dr.Zafer ZEYTİN, Regime of Participation in Acquired Property and its Remediation, p.83

[10] ZEYTİN, p.83

Serkan Kolay
Partner | [email protected]