Liquidation of the matrimonial property regime: how assets are shared on divorce

When the divorce decree becomes final, most people assume the matter is closed. In fact the division of the assets acquired during the marriage is the subject of a separate case, and it is not resolved automatically along with the divorce file. Whose name appears on the title deed is also less decisive than it is usually thought to be.

Which regime applies

Since 1 January 2002, when the Turkish Civil Code came into force, the statutory matrimonial property regime has been participation in acquired property (edinilmiş mallara katılma). Unless the spouses have chosen another regime by a contract drawn up before a notary, this regime applies automatically.

The date matters. Where the spouses married before 2002 and made no property contract, the former separation of property rules apply as a rule to the period before that date, while assets acquired afterwards fall under the new regime. In long marriages the file is therefore examined in two periods.

Acquired property and personal property

The whole of the division rests on this distinction.

Acquired property means the values a spouse obtains during the marriage by giving something in return: earnings from work, payments made by social security institutions, compensation paid for loss of working capacity, income from personal property, and values that replace acquired property.

Personal property covers items serving only the personal use of one spouse, assets owned before the marriage or received later by inheritance or other gratuitous acquisition, claims for non-pecuniary damages, and values that replace personal property.

In practice the distinction produces this result: a flat inherited during the marriage does not enter the division, whereas a flat bought with loan instalments paid out of salary is acquired property even if the title deed is in one spouse's name alone.

The participation claim

When the regime ends, each spouse has a claim over half of the surplus value in the other's acquired property. The surplus value is found by deducting the debts relating to those assets from their total; if the calculation produces a deficit, it is not taken into account.

The regime ends on the date the divorce petition was filed. The assets, however, are valued at the time of liquidation, that is, at the date closest to the judgment. Any increase in the value of immovable property after the date of filing therefore feeds into the calculation.

Increased value claims and contribution claims

The two are often confused.

• An increased value claim (değer artış payı) arises where one spouse has contributed to the acquisition, improvement or preservation of an asset belonging to the other without receiving a proper return, or any return at all. The claim is calculated according to the proportion of the contribution and the value of the asset at the time of liquidation, so if the asset has gained value, the claim grows with it.
• A contribution claim (katkı payı) is a claim brought under the law of obligations in respect of assets falling within the separation of property period before 2002.

How work that is not directly financial, such as housework and childcare, is to be valued depends on the circumstances of the particular file; there is no rule that such work counts for nothing.

Timing

The participation claim may be brought together with the divorce case, but no judgment on liquidation can be given until the divorce decree is final, so the court treats the divorce as a preliminary issue. Which period of limitation applies to the claim has been debated in practice. Because of that uncertainty, the safe course is to raise the claim together with the divorce case or immediately after the decree becomes final.

A claim for the jewellery given at the wedding (ziynet) is dealt with separately, outside the matrimonial property regime.

This article is for general information only and does not constitute legal advice on any specific matter.