The divorce process is a period that is as emotionally challenging as it is financially complex for the parties involved. The statutory property regime in effect in Turkey since January 1, 2002, is the community property regime. Unless the spouses have entered into a property regime agreement to the contrary, property acquired during the marriage is settled under this regime. So how exactly does this regime work, and what principles govern the division of property in a divorce case?
Distinction Between Acquired Property and Separate Property
Under the community property regime, the spouses’ assets are divided into two main categories: community property and separate property. Community property consists of assets acquired by each spouse during the term of the property regime in exchange for consideration. This includes income earned from employment, payments made by social security institutions, compensation for loss of earning capacity, and income derived from separate property.
Personal property, however, is not included in the division of assets and remains with its owner. According to Article 220 of the Turkish Civil Code, personal property includes: items intended solely for the personal use of one spouse; property belonging to that spouse at the commencement of the matrimonial property regime; assets acquired through inheritance or gratuitous transfers; and claims for moral damages. This distinction is of critical importance in determining which assets are subject to division.
How Is the Division Carried Out?
The property regime ends on the date the divorce case is filed. During the division process, each spouse’s personal property is first set aside. Then, debts related to the acquired property are deducted from its total value to calculate the net value. The right to a share of the net value is a claim arising in favor of the other spouse, amounting to half of this net value.
There is an important point to note here: Under the community of acquired property regime, the actual division of property is not involved. Whatever property is registered in one spouse’s name remains in their ownership; the other spouse merely acquires a claim to a share. In other words, for example, a house registered in the husband’s name is not automatically divided equally after the divorce; the wife claims her share of the community of acquired property, calculated based on the value of that house.
Claim for Contribution and Share of Appreciation
In contrast to the claim for participation, there are also the concepts of a claim for contribution and a share of appreciation. A share of appreciation arises when one spouse makes a contribution, without compensation, to the acquisition, improvement, or preservation of property belonging to the other spouse. In this case, the contributing spouse is entitled to a claim proportional to their contribution based on the asset’s appreciation during the division of property. The contribution claim, on the other hand, is a type of claim primarily applied under the regime of separate property and shaped by Supreme Court decisions.
Situation for Marriages Prior to 2002
A different legal situation applies to couples who married before January 1, 2002. The separate property regime applies to the period prior to this date, while the community property regime applies to the period after January 1, 2002. In other words, in long-term marriages, determining to which period the property belongs is of great importance. This determination directly defines the scope of the property subject to division.
Can a Property Regime Agreement Be Entered Into?
Spouses may choose one of the property regimes separate property, shared separate property, or community property instead of the statutory regime of participation in acquired property. This choice can be made through a property regime agreement executed before a notary either before marriage or during the marriage. For individuals who own a business, real estate, or significant assets, entering into such an agreement can significantly reduce potential future disputes.
Property division in a divorce is a legal process far more complex than it appears. Issues such as determining which assets are marital and which are separate; how the date of liquidation is established; and how contributions and appreciation are calculated are technical matters requiring expertise. Proper management of the process is critical to both preventing the loss of rights and avoiding unnecessary delays.
For detailed information on this subject and a personalized legal assessment, please contact the expert team at Bu Müşavirlik. We are here to support you in protecting your rights throughout your divorce and property regime settlement processes.
