Divorce - How is Property Divided in Divorce

First, it is important to note that our discussions in the introduction apply to the period following the enactment of the Turkish Civil Code No. 4721, which came into force on January 1, 2002. Prior to this, during the period governed by Law No. 743, the statutory matrimonial property regime between spouses was the Regime of Separation of Assets. With the entry into force of the TCC No. 4721, the Regime of Participation in Acquired Property became the statutory matrimonial property regime.

Therefore, for spouses married before January 1, 2002, the date the new Turkish Civil Code came into effect, the matrimonial property regime they were subject to until that date will continue. This means that for spouses married before January 1, 2002, unless another matrimonial property regime was chosen, the Regime of Separation of Assets will apply from the date of marriage until January 1, 2002.

If spouses did not choose another matrimonial property regime within one year from the effective date of the TCC, January 1, 2002, they become subject to the Regime of Participation in Acquired Property, which is considered the statutory matrimonial property regime. Thus, the Regime of Participation in Acquired Property, as the statutory matrimonial property regime, will apply from January 1, 2002, until the date of liquidation.

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Spouses may not have entered into any matrimonial property agreement before marriage. In such a case, they are legally deemed to have accepted the Regime of Participation in Acquired Property. Under this regime, assets acquired during the marriage are divided equally between the spouses upon divorce. The Regime of Participation in Acquired Property terminates upon a divorce decree or annulment of marriage. From this termination date, the current assets are determined.

For example, let's consider a contractor and his homemaker spouse. All assets acquired from the date of their marriage until the date of their divorce are not solely owned by the contractor husband. They are also considered to belong to the homemaker spouse. This is because it is presumed that a division of labor exists between the spouses. It is accepted that spouses overcome life's challenges together as a matter of course.

Acquired property, meaning assets obtained from the date of marriage, is identified. Subsequently, the claim for participation is determined. To ascertain the claim for participation, an accounting is first made between acquired property and personal property. This accounting is called equalization. If spouses have liabilities (debts), they are deducted from the calculation. Afterwards, if spouses have assets (receivables), they are added to this calculation. The value that emerges after all these operations is called the residual value. This value is calculated separately for each party. As for who owns wedding jewelry, you can find the answer to this question in our related article.

Is Property Divided Fifty-Fifty in Divorce?

The calculated residual value will be divided equally into two, unless otherwise agreed by contract, regardless of whether one spouse is employed or not. This is a requirement of the Regime of Participation in Acquired Property, which is the statutory matrimonial property regime. However, the total debts of one spouse may exceed the value of their acquired property. In this case, this spouse has a negative residual value. Consequently, as stipulated by law, the other spouse is deemed to have no claim for participation in the residual value. The claim for participation can be transferred to another person from the date the claim becomes final. Furthermore, the claim for participation can also pass to the heirs through inheritance.

What Does Acquired Property Mean?

Acquired property refers to assets that spouses obtain by giving consideration, starting with their marriage. For an asset to be considered acquired property, it must have been obtained in return for labor and during the continuation of the matrimonial property regime. Examples of acquired property include:

• Income from personal property. (e.g., rent from a house owned before marriage)

• Compensation or income paid due to loss of earning capacity. (e.g., occupational disease compensation)

• Wages earned in return for work.

Which Assets Are Not Divided in Divorce? (Personal Property)

Unless otherwise stipulated in the Turkish Civil Code, all assets of spouses are considered acquired property. However, exceptions have been introduced. These exceptions are exhaustively listed in Article 220 of the TCC. The exceptions provided by law are as follows:

• All assets owned by spouses before marriage, i.e., before the commencement of the Regime of Participation in Acquired Property.
• Spouses' personal belongings, such as wallets, bags, wristwatches, and jewelry.
• Assets inherited by one of the spouses.
• Claims for non-pecuniary damages (moral damages). For example, compensation awarded to one spouse who was subjected to defamation via social media.
• Assets acquired through gratuitous acquisition. For example, winning a car in a raffle organized by a shopping mall.
• Payments made by SGK (Social Security Institution). For example, payments made by the institution due to job loss (such as permanent disability income).

Furthermore, apart from the exceptions enumerated by law, spouses can determine items to be considered personal property between themselves through a contract. In some situations, a contract is not even necessary. For instance, if a spouse had a doctor's practice before marriage, all instruments in that practice, such as an ultrasound machine, are already considered personal property, so no additional contract is needed for them.

Another important point is that the income from spouses' personal property is considered acquired property. However, if the parties wish, they also have the authority to decide, through a contract between themselves, that these incomes should be considered personal property.

How Does Property Division Occur in Contested and Uncontested Divorce?

Regarding property division, the manner in which the marriage ends is irrelevant. Whether the marriage terminates through a contested or uncontested divorce, the provisions of the TCC applicable to property division remain the same. The legislator has not attributed importance to the form of marital dissolution in this context.

Nevertheless, in an uncontested divorce, spouses may establish principles regarding property division to the extent permitted by law. For example, in practice, a waiver of the value increase share can also be regulated within the scope of an uncontested divorce protocol. Beyond this, spouses can agree among themselves on how assets will be divided. However, it is important to note that all these are the result of spouses entering into a property division agreement between themselves. Otherwise, the law has not made a dual distinction regarding divorce.

What is a Matrimonial Property Regime Lawsuit?

There are various types of matrimonial property regime lawsuits. These lawsuits include: a lawsuit for transition to an extraordinary matrimonial property regime, a lawsuit for a claim for participation in residual value, a lawsuit for a claim for a value increase share, and a lawsuit for a contribution claim.

A lawsuit for transition to an extraordinary matrimonial property regime is not a claim for debt. It is a lawsuit aimed at converting the existing matrimonial property regime between spouses to a regime of separation of assets by judicial decision. The other three types of lawsuits aim to collect a claim based on a personal right.

What is the Statute of Limitations for a Property Division Lawsuit?

The statute of limitations for claims for participation lawsuits is limited to 10 years from the date the divorce decree becomes final. The right of a party who does not file a property division lawsuit within 10 years will be subject to the statute of limitations. After this period, a lawsuit cannot be filed, and a right cannot be claimed.

Which Court Has Jurisdiction and Competence in a Property Division Lawsuit?

The court competent to hear a property division lawsuit based on a claim for participation is the family court. The authorized court will be determined according to Article 214 of the TCC.

• If the matrimonial property regime has terminated due to the death of one of the spouses, the court of the deceased's last domicile is authorized to hear the lawsuit for claims for participation, contribution, and value increase share.

• If the marriage has terminated by a court's divorce decree or if there is an ongoing divorce lawsuit, the court authorized to hear the divorce lawsuit is also authorized to liquidate the matrimonial property regime.

• In all other cases, apart from the two situations above, the court located at the domicile of the defendant spouse is authorized to hear the property division lawsuit.

How is the Matrimonial Home Divided in Divorce?

If the house where the spouses resided before divorce was acquired through joint contribution, it will again be equally distributed between the parties. That is, the house will be sold, and its market value will be shared between the parties. However, while the opposite can be agreed upon between the parties, a court may also render a decision considering the situation of the impoverished spouse or children.

For example, on a plot of land classified as personal property, a construction contract in return for a land share may be made after marriage. The apartment obtained as a result of this contract is considered personal property within this scope. Thus, its division is not in question. Similarly, a house purchased with money inherited from an ascendant will not be subject to division, as it will be considered personal property as a substitute value.

A spouse may claim a contribution share after divorce. At this point, one spouse's contribution of labor will also be considered a contribution. For example, a spouse who played a role in the construction on a plot of land owned by the other spouse has contributed labor and will be able to claim a contribution share from the other spouse. However, a spouse's labor spent on housework and childcare is not considered a contribution. Therefore, a contribution share cannot be claimed from the house on this ground. Likewise, a spouse may contribute to the purchase of a house by selling their car, giving jewelry, etc. In divorce, they can claim these contributions.

What Happens in Cases of Asset Concealment in Divorce?

Spouses may act in bad faith before divorce and engage in asset concealment to reduce the other spouse's claim for participation. For this reason, the legislator introduced Article 229 of the TCC to protect the other spouse in such situations. If such an act of asset concealment occurs, the assets subject to these transactions will be added to the liquidation account as if the transaction had never taken place. This will thus thwart the malicious act.

The Court of Cassation has, in this regard, given a different direction to practice through its case law. Especially concerning assets transferred to third parties, the proof of values to be added, and the valuation of assets subject to these added values, the precedents established by the Court of Cassation are of great importance. This is because some situations not explicitly covered in the Law are resolved through these precedents. Similarly, we observe that the articles of the Law are interpreted differently by the Court of Cassation in this matter.

Court of Cassation Decisions Regarding Houses, Cars, and Assets Sold Before Divorce

“…It is understood that both immovable properties subject to liquidation were transferred by deed of sale on the same day, November 15, 2011, approximately 5.5 months before the divorce lawsuit filing date, to the other defendant, who is the defendant spouse's sibling. Therefore, it must be accepted that the transfers were made with the intent to reduce the plaintiff's claim for participation…” (8th Civil Chamber of the Court of Cassation, E. 2016/14281 K. 2018/17838 T. 24.10.2018)

“…The parties divorced with the finalization of the judgment accepting the divorce lawsuit filed on February 15, 2011…It is understood that the defendant husband opened a bank account on December 17, 2009, and deposited the minimum fee determined by the Minimum Attorneyship Wage Tariff (AAÜT), and on May 10, 2010, the minimum fee determined by the Minimum Attorneyship Wage Tariff (AAÜT) was withdrawn by the defendant. As a rule, it is accepted that the existing assets of the spouses at the date of filing the divorce lawsuit (TCC Art. 235) will be subject to liquidation; however, it is stipulated that assets disposed of within 1 year prior to this date shall also be considered in the liquidation… In this respect, instead of obtaining account opening agreements and similar records and documents from the relevant bank, collecting all evidence presented by the parties, and then rendering a decision within the framework of the outcome obtained, rendering a decision in writing with an incomplete examination was not correct.” (8th Civil Chamber of the Court of Cassation, E. 2014/1703 K. 2015/7288 T. 31.3.2015)

“…The vehicle with license plate 34 J.K 36 was also sold on … approximately 2 years before the divorce lawsuit filing date, which is when the matrimonial property regime terminated. Since the sold vehicles were disposed of a considerable time before the termination date of the matrimonial property regime, and it could not be proven that the sale price was still existing or that the vehicles were disposed of under the conditions of TCC Article 229, they should not be taken into account in the liquidation…” (8th Civil Chamber of the Court of Cassation, E. 2015/6194 K. 2016/15818 T. 21.11.2016)

We have tried our best to explain how property division occurs in divorce. All related to the subject

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy