The end of a marriage by divorce is not only an emotional process for the parties but also the liquidation of a financial partnership. The property division case in divorce, filed so that the assets the spouses acquired during the marriage are divided fairly and in accordance with the law, is one of the most critical legal steps determining the parties’ future financial security. Working with an experienced Ankara divorce lawyer is very important in order to get through this complex process without losing rights and to protect your legal rights in full.
The most common mistakes in family law disputes in Turkey usually stem from not knowing one’s rights exactly or from missing legal time limits. Technical issues such as marriage contracts, the status of wedding jewellery, identifying personal property and sham transfers of property can completely change the course of a case. In this article we discuss, in light of the Turkish Civil Code and current Court of Cassation decisions, all the details of the liquidation of the property regime.
The Statutory Property Regime: What Is the Participation in Acquired Property Regime?
Under the Turkish Civil Code (TCC), the participation in acquired property regime is the statutory property regime for couples who married after 1 January 2002. For marriages before that date (unless the parties chose another regime), the separation of property regime applied. The statutory regime is based on dividing equally, when the marriage ends, the assets obtained during the marriage. However, this rule is not absolute; every case has its own conditions, debts, personal investments and contributions.
When marrying, or while the marriage continues, spouses may choose one of the other property regimes set out in the law (separation of property, participation in property with separation, or community of property) by a contract made before a notary. If no such contract has been made, the court carries out the liquidation directly under the rules of participation in acquired property, the statutory property regime. The aim of this liquidation is to divide fairly the economic value “created together” during the marriage.
How Are Personal Property and Acquired Property Distinguished?
The first and most important issue to be resolved in property division cases is distinguishing personal property from acquired property. In the liquidation only acquired property is divided; personal property stays with its owner and the other spouse can make no claim over it.
What Is Acquired Property?
Acquired property consists of assets a spouse obtained in return for something during the property regime. Under the law, acquired property generally includes:
- Wages, salaries and self-employment earnings received in return for work,
- Payments made by social security or social aid institutions (for example retirement bonus, severance pay, work-accident compensation),
- Compensation paid for loss of working capacity,
- Income from personal property (for example rent accumulated during the marriage from a flat owned before the marriage),
- Assets replacing acquired property (selling an acquired car and buying a new one).
What Is Personal Property?
Personal property consists of assets owned by only one of the spouses and excluded from the liquidation. Personal property, which may be determined by law or by agreement of the spouses, includes:
- Items serving solely the personal use of one spouse (clothing, personal hobby tools, etc.),
- Assets belonging to one spouse at the start of the property regime (before the marriage),
- Assets obtained by inheritance or by any other gratuitous acquisition (for example an inheritance from parents or a lottery prize),
- Claims for moral compensation,
- Assets replacing personal property (selling a house owned before the marriage and converting it into another investment).
Wedding jewellery is frequently disputed here. According to the Court of Cassation’s current settled case law, jewellery and money given at the wedding are generally regarded as the wife’s personal property, regardless of whom they were given to, unless there is a contrary agreement or local custom. However, the court may assess this differently depending on the circumstances of each case, the nature of the jewellery and the parties’ claims.
Types of Claims That Can Be Made in Property Division
In a property liquidation case filed after the divorce becomes final, the parties cannot demand only that objects or real estate be divided in kind (physically). The legislator has granted a monetary claim: the court calculates the value of the assets and orders a sum of money to be paid to the entitled spouse. Three basic types of claims can be made in this process:
1. Participation Claim
The participation claim is the statutory right each spouse has over half of the net value, at the liquidation date, of the other’s acquired property. It does not matter whether the spouse made a direct financial contribution to acquiring the asset; the law grants this right as a natural consequence of the labour and sharing within the marriage. To calculate net value, the debts relating to the asset are deducted from its value and the remaining “residual value” is divided in two.
2. Value Increase Share Claim
Where one spouse contributes from personal property, with no or inadequate consideration, to the acquisition, improvement or preservation of an asset belonging to the other, the right to claim in proportion to the resulting increase in value is called the value increase share claim. For example, if a wife gave her pre-marriage savings (personal property) as the down payment for a house bought in her husband’s name, then when the marriage ends she may claim a value increase share, in proportion to her contribution, based on the house’s current value.
3. Contribution Share Claim
The contribution share claim applies to the period before 1 January 2002 under the separation of property regime and is the return for a financial contribution one spouse made to the other’s property. Since assets bought in that period belong to the person they were registered to, the other spouse must prove a financial contribution to the purchase (for example supporting it with her salary). Today this type of claim remains important in liquidating older marriages.
Hiding Assets in Divorce and Available Measures
One of the most common injustices spouses face during divorce is attempts to hide assets. To give the other spouse a smaller share, assets may be transferred or sold to third persons by sham transactions, or company shares may be disposed of.
The Turkish Civil Code has developed protective measures against such bad-faith dispositions:
- Injunction (precautionary attachment): When or before filing the property division case, the court can be asked to place an injunction on the real estate, vehicles and bank accounts in dispute. This prevents the assets from being sold to third persons until the end of the case.
- Family home annotation: The family home in which the spouses live together cannot be sold or transferred without the other spouse’s consent, whoever it is registered to. Applying to the land registry office to have a “family home annotation” placed on the home is one of the most practical ways of preventing asset-hiding attempts.
- Addition claim: Gratuitous dispositions (gifts) made by one spouse without the other’s consent within the year before the property regime ended, and transfers made with the intent of reducing the other spouse’s share, are included in the calculation as “value to be added” to the acquired property at liquidation.
Detecting and cancelling such irregular transfers requires careful management of the legal process. Where necessary, with the support of a real estate lawyer, title deed cancellation and registration cases or sham transaction cases can be filed to protect rights.
When Is the Property Division Case Filed? Limitation Periods
One of the most frequently asked questions is when the property division case should be filed. It may be filed together with the divorce case in the same petition, while the divorce case is continuing, or as a separate case after the divorce decision becomes final.
However, the court cannot decide the merits of the property liquidation case before the divorce case becomes final; the divorce case is treated as a preliminary issue for the property division case. The legally safest method is to wait for the divorce case to become final, or to file separately and have the result of the divorce case awaited.
According to the legal provisions, the limitation period for property division is 10 years from the date the divorce decision becomes final. Cases filed after this period are rejected because of limitation. Since delay increases the likelihood of hidden assets, it is recommended to act quickly once the divorce case becomes final.
Competent and Authorized Court
The court with jurisdiction over cases arising from liquidation of the property regime is the Family Court. Where there is no family court, the Civil Courts of First Instance hear these cases in the capacity of a Family Court.
The authorized court varies according to how the case is filed and the spouses’ situation:
- If the property regime ended because of the death of one spouse, the court of the deceased’s last place of residence is authorized.
- If divorce, annulment of the marriage or court-ordered separation of property is decided, the court authorized to hear those cases is also authorized in the property division case.
- In other cases the court of the defendant spouse’s place of residence is authorized.
In cases heard across Ankara, family courts in the Ankara courthouses decide within their jurisdiction, including for citizens living in districts such as Akyurt, Çubuk and Pursaklar. Working with an Ankara family law lawyer familiar with regional dynamics can help judicial processes proceed faster and more smoothly.
Burden of Proof and Valuation in Property Division Cases
During the case, serious disputes arise between the parties over which asset is personal and which is acquired. The law sets a clear presumption: all assets claimed to belong to a spouse are regarded as acquired property unless evidence to the contrary is presented.
The spouse claiming that an asset is personal property must prove it. Any legal evidence may be used; bank records, title deeds, certificates of inheritance, witness statements and invoices are among the evidence that can be submitted to the court.
How Is Value Determined?
The market value of the assets to be liquidated is determined by expert witnesses appointed by the court. The most important rule is that the current values of the assets at the liquidation (decision) date are taken as the basis. For example, the value of a flat bought in 2015 during the marriage is calculated not at the date the case was filed but at the current market value closest to the date the court decides. This is very important for preventing loss of rights, especially in inflationary conditions.
The Importance of Legal Support and a Professional Approach
Property division cases are extremely technical cases that require balance-sheet calculations, deduction of debts, formulation of value increase ratios and application of the Court of Cassation’s complex case law. A wrongly filed case, unclaimed items or wrong calculations can cause the parties to lose years of savings.
At ÖZDEMİR HUKUK VE DANIŞMANLIK, we offer professional support to protect our clients’ rights in divorce and property division processes, manage complex calculations carefully and conclude the process in your favour as soon as possible. When you need legal help in Ankara and its surroundings, acting under the guidance of an expert divorce lawyer is the right way to secure your future. You can contact us through our communication channels to get detailed information about your particular file.
Frequently Asked Questions
Is a house bought before marriage included in the division of property?
A home bought before the marriage and registered in the name of one spouse is, by law, that spouse’s personal property and is not included in the division. However, if rental income from it accumulated during the marriage, or if it was sold and another property was bought with additional funds, the resulting value increases and income may be treated as acquired property.
Who gets the wedding gold in the division of property?
According to Court of Cassation (Yargıtay) decisions, jewellery and cash given at the wedding are regarded as the wife’s personal property unless there is a contrary local custom or a written agreement between the parties. On divorce they must therefore be returned to the wife in kind or paid for in cash.
Is a car sold before the divorce case was filed included in the division?
If the car was sold without the other spouse’s consent within the year before the case was filed, or was transferred to a third person only to hide assets, its value is added to the acquired property in the liquidation. The court calculates the car’s current value and protects the other spouse’s right.
What is the limitation period for a property division case and when does it start?
The limitation period for cases on the liquidation of the property regime is 10 years. This period starts to run from the date the court decision in the divorce case becomes final.
Is inherited property divided in a divorce?
Any real estate, vehicle, cash or company shares received by inheritance are by law personal property. Therefore, even if received during the marriage, inherited assets cannot be divided in a divorce and the other spouse cannot claim them.
How do a spouse’s debts during the marriage affect the division of property?
In the liquidation of acquired property, debts relating to that property (for example the remaining instalments of a housing loan) are deducted from its value. The division is made on the remaining net “residual value”, so the debts are indirectly reflected in the division.
Legal notice: This article is for general information only and is not legal advice. Be sure to consult a lawyer for your specific case.