Çekmeköy Divorce Lawyer - Liquidation of the Matrimonial Property Regime and Participation Claim in Divorce
Divorce has significant consequences not only in terms of terminating the marital union but also in determining the legal status of assets acquired by the spouses during the marriage. Real estate, vehicles, bank accounts, company shares, savings and other assets acquired by spouses during marriage may be subject to assessment within the liquidation of the matrimonial property regime following divorce.
Under the Turkish Civil Code, the statutory matrimonial property regime is the participation in acquired property regime. This regime does not operate by simply dividing all assets of the spouses equally. It is first necessary to determine which assets constitute acquired property and which constitute personal property; the calculations required for liquidation are then carried out and any participation claim is determined.
Under the Turkish Civil Code, all property belonging to a spouse is presumed to be acquired property unless proven otherwise. In the event of divorce, the participation in acquired property regime terminates with effect from the date on which the divorce action is filed.
Therefore, when an assessment is made within the scope of a Çekmeköy divorce lawyer, Çekmeköy family lawyer, Istanbul divorce lawyer, property division lawyer, matrimonial property liquidation lawyer or participation claim lawyer, the date of marriage, acquisition dates of assets, source from which each asset was acquired, date on which the divorce action was filed and contributions made by the spouses to the assets must be considered together.
What Is a Matrimonial Property Regime?
A matrimonial property regime is the system governing the legal relationship between the assets owned and acquired by spouses during marriage.
The Turkish Civil Code regulates the property relationships between spouses through various matrimonial property regimes.
Unless the spouses select another property regime in accordance with the procedure prescribed by law, the statutory regime of participation in acquired property applies.
Application of this regime does not mean that every asset acquired during marriage automatically becomes jointly owned by both spouses. During the marriage, spouses continue to hold rights over their own assets within the limits prescribed by law.
What Is the Participation in Acquired Property Regime?
The participation in acquired property regime is the statutory matrimonial property regime that essentially separates spouses' assets into acquired property and personal property and may give rise to a participation claim in favour of the other spouse based on the residual value of acquired property when the regime terminates.
An asset registered in the name of one spouse does not automatically become half-owned by the other spouse merely because the parties are married.
During liquidation, the category to which the asset belongs, debts, values to be added, equalisation, value increase share and residual value are considered.
What Is Liquidation of the Matrimonial Property Regime?
Liquidation of the matrimonial property regime is the process of determining the spouses' assets according to the statutory rules following termination of the matrimonial property regime and calculating any claims between the spouses arising from that regime.
During liquidation, consideration is not limited to whose name an asset is registered under.
The date on which the asset was acquired, the income or property used to acquire it, debts attached to it, contributions by the other spouse and the legal and economic position of the asset at the time of liquidation may all be relevant.
When Does the Matrimonial Property Regime End in Divorce?
Under Article 225 of the Turkish Civil Code, the matrimonial property regime may terminate upon the death of one spouse or the adoption of another property regime.
Where the marriage is terminated by a court through divorce or annulment, the property regime terminates with effect from the date on which the divorce action was filed.
This date is extremely important for determining the scope of property division.
For example, new income earned or an asset acquired after the divorce action was filed may not have the same legal status as an asset acquired before the divorce action.
Is the Date of the Final Divorce Judgment or the Filing Date Relevant?
For termination of the participation in acquired property regime, the relevant date is generally the date on which the divorce action is filed, rather than the date on which the divorce judgment becomes final.
However, the outcome of the divorce proceedings is also important in terms of determining claims arising from liquidation of the property regime.
Therefore, a general assumption that “property remains jointly subject to the regime until the divorce judgment becomes final” is legally inaccurate.
The date on which the property regime ends and the date on which liquidation is carried out are different concepts.
What Is Acquired Property?
Acquired property refers to assets obtained by a spouse during the continuation of the property regime in return for labour or through other means specified by law.
Income earned from work is among the most typical examples of acquired property.
A spouse's salary, wage income and assets acquired through earnings from work may, where the relevant conditions exist, be regarded as acquired property.
Values replacing acquired property may also qualify as acquired property.
Is a House Purchased During Marriage Acquired Property?
The fact that real estate was purchased during marriage is an important indicator in determining whether it constitutes acquired property, but this fact alone is not sufficient in every case.
The source from which the purchase price was paid is as important as the date on which the property was purchased.
For example, a property purchased using employment income earned during marriage may have a different legal status from one purchased using proceeds from the sale of personal property owned by one spouse before marriage.
It is therefore incorrect to calculate the matrimonial property claim solely by considering which spouse is registered as the owner on the title deed.
Can the Other Spouse Claim Rights If the Title Deed Is Registered in Only One Spouse's Name?
Yes, where the applicable conditions exist.
The fact that real estate is registered solely in the name of one spouse does not mean that the other spouse has no rights arising from liquidation of the matrimonial property regime.
Ownership rights and participation claims are different concepts under matrimonial property law.
Rather than directly claiming half of the title to the property, the other spouse may, where the conditions are satisfied, have a monetary claim arising from liquidation of the matrimonial property regime.
What Is Personal Property?
Under the participation in acquired property regime, certain assets are regarded as personal property.
Personal property is generally excluded from the calculation of acquired property during liquidation.
In particular, assets already owned by a spouse at the beginning of the matrimonial property regime and certain assets subsequently acquired by inheritance or gratuitous transfer may qualify as personal property.
Values replacing personal property may also retain their character as personal property.
Is a House Purchased Before Marriage Included in Property Division?
Real estate owned by a spouse before marriage is generally regarded as that spouse's personal property.
Accordingly, the property itself may not directly be included in the acquired-property calculation.
However, where the other spouse contributed during the marriage to repayment of debt attached to the property, its improvement or an increase in its value, different claims may arise.
It is therefore incorrect to make an absolute statement that “if it was purchased before marriage, the other spouse can never have any claim.”
Are Inherited Assets Included in Property Division?
Assets inherited by one spouse are generally personal property.
Accordingly, inherited real estate or another inherited asset is not directly included in the acquired-property calculation.
However, the legal character of income generated by personal property must be assessed separately.
Investments made during marriage in an inherited asset or contributions made by the other spouse may also result in different types of claims.
Is a House or Money Gifted by Family Included in Property Division?
Assets transferred gratuitously to one spouse may qualify as personal property.
For example, money or real estate gifted exclusively to one spouse by that spouse's family may be assessed as personal property.
However, it may be necessary to establish through evidence to which spouse the transfer was actually made, whether it was genuinely a gift and whether the value was subsequently used to acquire another asset.
What Happens If Personal Property Is Sold and Another Asset Is Purchased?
Values replacing personal property are generally also regarded as personal property.
For example, where a spouse sells real estate owned before marriage and purchases another property using the proceeds, the personal-property source used may be significant during liquidation.
However, where part of the purchase price of the new asset comes from personal property and another part from income classified as acquired property, the calculation may become more complex.
It may then be necessary to determine the respective proportions of personal and acquired property used.
Who Must Prove Whether an Asset Is Acquired or Personal Property?
Under Article 222 of the Turkish Civil Code, the person alleging that a particular asset belongs to one spouse bears the burden of proving that allegation.
Assets whose ownership by either spouse cannot be established are considered jointly owned.
The law also contains a presumption that all property of a spouse constitutes acquired property unless proven otherwise.
Accordingly, where it is alleged that an asset is personal property, bank records, title records, sale documents, inheritance records and other financial documentation may be important.
What Is a Participation Claim?
A participation claim is a statutory claim that one spouse may have against the other spouse's residual value following liquidation of the participation in acquired property regime.
A participation claim does not mean that half of a specific asset is directly transferred into the ownership of the other spouse.
The liquidation calculation must first be completed and the residual value of each spouse's acquired property determined.
Under Article 236 of the Turkish Civil Code, as a general rule, each spouse or their heirs is entitled to half of the other spouse's residual value.
What Is Residual Value?
Residual value is the value remaining after debts relating to acquired property and the other calculation items prescribed by law have been taken into account.
A participation claim is not calculated simply as half of an asset's sale price or market value.
The liquidation calculation first takes account of assets, debts, equalisation and, where required, values to be added.
The calculation may therefore become technical, particularly where the marriage involves multiple properties, vehicles, bank accounts or commercial assets.
Is the Participation Claim Always Fifty Percent?
Under the basic rule of the Turkish Civil Code, each spouse or their heirs is entitled to half of the other spouse's residual value.
However, this does not mean that “every asset in the marriage is automatically divided fifty-fifty.”
It is first necessary to determine whether the asset is acquired property and to calculate the residual value.
A valid matrimonial property agreement between the spouses or special circumstances provided by law may also affect the calculation.
Does Adultery or Attempt on Life Affect a Participation Claim?
Article 236 of the Turkish Civil Code allows the judge, where divorce is based on adultery or attempt on life, to reduce or eliminate the at-fault spouse's share of the residual value to the extent required by equity.
This rule does not apply to every ground for divorce.
For example, the existence of general marital fault does not automatically eliminate a spouse's participation claim.
Whether the special statutory conditions exist must be separately assessed.
Can an At-Fault Spouse Receive a Share From Property Division?
Fault in divorce and liquidation of the matrimonial property regime are different legal issues.
As a general rule, the fact that a spouse is at fault in the divorce does not automatically eliminate all rights arising from the matrimonial property regime.
However, in specifically regulated circumstances such as divorce based on adultery or attempt on life, reduction or elimination of the share in the residual value may arise.
Fault in divorce should therefore not be confused with the matrimonial property calculation.
What Is a Value Increase Share Claim?
A value increase share claim may arise where one spouse contributed, without receiving any or adequate consideration, to the acquisition, improvement or preservation of an asset belonging to the other spouse.
Under Article 227 of the Turkish Civil Code, the contributing spouse may, where the conditions are satisfied, claim a proportionate share of the increase in value during liquidation.
A value increase share claim is therefore not the same as a participation claim.
What Is the Difference Between a Participation Claim and a Value Increase Share Claim?
A participation claim arises from the residual value resulting from liquidation of the other spouse's acquired property.
A value increase share claim concerns a spouse's contribution to the acquisition, improvement or preservation of a particular asset belonging to the other spouse.
Where the relevant conditions exist, both types of claim may have to be assessed separately within the same case.
It is therefore legally incomplete to describe post-divorce property division merely as “taking half of the assets.”
How Is a Spouse's Contribution to a Mortgage Assessed?
For real estate purchased through financing during marriage, the dates of payments and the sources from which the loan instalments were paid are important.
Payments made from the spouses' employment income while the matrimonial property regime was continuing may have a different legal character from payments made after the regime ended.
Similarly, where the down payment was made from personal property but the remaining price was paid from income earned during marriage, different categories of property may have contributed to acquisition of the same asset.
The payment schedule and bank records are therefore important when liquidating a mortgaged property.
Does a Spouse's Failure to Work Prevent a Participation Claim?
No.
Under the participation in acquired property regime, the other spouse does not necessarily have to have worked or directly contributed money towards the purchase price of a specific asset in order to have a participation claim.
The participation claim arises from the structure of the statutory matrimonial property regime.
Accordingly, a spouse who did not work or earn income during the marriage may still have a participation claim against the residual value of the other spouse's acquired property where the conditions exist.
This differs from a value increase share claim, where a contribution to a particular asset is separately relevant.
Can a Spouse Who Performed Household Work Receive a Share From the Property?
Yes.
The fact that one spouse did not work in paid employment during the marriage does not remove rights arising from the participation in acquired property regime.
Under the statutory property regime, it is not necessary to prove direct financial contribution to the purchase of every individual asset in order to obtain a participation claim.
Accordingly, a spouse who undertook household work or childcare may also have a participation claim following liquidation where the statutory conditions exist.
Are Bank Accounts Included in Property Division?
Bank accounts consisting of income classified as acquired property during the marriage may be considered during liquidation.
The fact that an account is held in the name of only one spouse does not automatically mean that the funds constitute personal property.
The source of the funds, the date on which they were deposited and their status when the matrimonial property regime ended are relevant.
Where personal-property sources such as inheritance, gifts or pre-marital savings are alleged, these may need to be separately established.
Are Vehicles Included in Property Division?
Vehicles purchased during the marriage using income classified as acquired property may be taken into account in the liquidation calculation.
Registration of the vehicle solely in one spouse's name does not by itself eliminate the other spouse's participation claim.
The purchase date, source of payment and any outstanding loan obligations should be assessed.
Vehicles acquired before marriage or through personal-property funds may require a different legal assessment.
Can Company Shares Be Included in the Liquidation of the Matrimonial Property Regime?
Where one spouse is a shareholder in a company, the date and source of acquisition of the shares are important.
Company shares acquired before marriage may qualify as personal property. However, the legal character of certain income generated by those shares during marriage must be assessed separately.
Where company shares were acquired during marriage using funds classified as acquired property, they may be taken into account in the liquidation calculation.
Expert valuation may become particularly important in disputes involving company shares.
How Is the Value of a Business Determined in Property Division?
In matrimonial property disputes involving a commercial enterprise or company shares, consideration of registered share capital alone may not always be sufficient.
The economic value of the shares, company financial statements, assets and liabilities, ownership structure and other economic information may be relevant to valuation.
Expert examination may therefore be required in property-division cases involving company interests.
Do Transfers Made to Hide Assets Affect Liquidation?
During liquidation, it may be alleged that one spouse transferred assets to third parties in order to reduce the other spouse's matrimonial property rights.
The Turkish Civil Code contains provisions allowing certain gratuitous transfers or transactions made to reduce the other spouse's participation claim to be added back into the liquidation calculation under specified conditions.
Accordingly, it should not be assumed that every transfer made before divorce completely eliminates the other spouse's participation rights.
The date of transfer, its legal nature, whether consideration was paid and the parties' purpose must be assessed according to the circumstances.
Is the Right Lost If a House Is Transferred Before Divorce?
The fact that an asset was transferred to a third party before the divorce action does not by itself mean that the other spouse necessarily loses all matrimonial property rights.
Whether the transfer was a genuine sale, the amount of consideration, whether the consideration remains in the estate and whether the transaction was intended to reduce the other spouse's participation claim should be assessed.
However, the legal position of the third party and the matrimonial property claim between the spouses are not the same issue.
The nature of the transfer must be separately examined in each case.
At What Date Are Assets Valued?
Under Article 235 of the Turkish Civil Code, acquired property existing when the matrimonial property regime ended is included in the calculation at its value at the time of liquidation. Special valuation rules apply to assets that must be added to the calculation.
Accordingly, the difference between the value of real estate when the divorce action was filed and its value at the liquidation stage may be significant.
Expert examination may be used where necessary to determine an asset's value.
Is Expert Examination Used in Property Division Cases?
Liquidation of matrimonial property often requires financial and technical calculations.
Expert examination may be used to determine the market value of real estate, value company shares, review bank accounts, separate loan payments and calculate residual value.
However, an expert does not replace the court in making legal determinations.
Determining the legal category to which an asset belongs is ultimately a matter for the court.
What Evidence Is Used in Property Division Cases?
Evidence relevant to liquidation may particularly include:
- title records,
- bank account movements,
- loan agreements and repayment schedules,
- vehicle registration records,
- company and trade registry records,
- inheritance documentation,
- gift or sale documents,
- income and salary records,
- payment receipts,
- witness statements where appropriate.
Financial records dating back many years may have to be reviewed in order to determine the source from which an asset was acquired.
What Happens If a Spouse Conceals Assets?
During liquidation, one spouse may be alleged to have concealed bank accounts, real estate, vehicles or company interests.
Records considered necessary to resolve the dispute may be obtained from relevant institutions and organisations during judicial proceedings.
The assessment of assets therefore does not necessarily have to be limited to the other spouse's statements.
Depending on the circumstances, land registry, banking, vehicle registry and trade registry records may become important.
Can Property Division Be Claimed Together With the Divorce Action?
Divorce and liquidation of the matrimonial property regime are separate legal claims.
The legal status of termination of the marriage is important before liquidation of the matrimonial property regime can ultimately be completed.
In practice, proceedings concerning matrimonial property claims are conducted by taking their relationship with the divorce proceedings into account.
The procedural method by which a property-division claim should be asserted together with or in connection with divorce should therefore be assessed according to the particular case.
How Is Property Division Handled in an Uncontested Divorce?
In an uncontested divorce, the parties may also reach agreement concerning their property.
However, it is important for the wording used in the protocol to be clear and understandable.
General statements such as “the parties have no claims against each other” may later become disputed in terms of their effect on matrimonial property claims.
The parties should therefore clearly express their intentions regarding real estate, vehicles, bank accounts, jewellery and claims arising from the matrimonial property regime.
Are Property Division and Alimony the Same Thing?
No.
Liquidation of the matrimonial property regime and alimony are different legal institutions.
Participation claims or value increase shares arise from the spouses' property relationship during marriage.
Alimony is a separate legal claim intended, subject to statutory conditions, to contribute to the support of a spouse or child.
Whether a spouse has a right to alimony does not automatically eliminate rights arising from liquidation of the matrimonial property regime.
Are Property Division and Financial or Non-Pecuniary Compensation the Same?
No.
Financial and non-pecuniary compensation claimed because of divorce and a participation claim arising from the matrimonial property regime are separate legal claims.
While the events giving rise to divorce and fault are important in compensation claims, property liquidation primarily concerns the acquisition date, classification of assets and liquidation rules.
Several different financial claims may therefore arise within the same divorce process.
Are Debts Taken Into Account in Liquidation of the Property Regime?
Yes.
The calculation of a participation claim is not based solely on the gross value of the assets.
Debts connected with acquired property are also considered in the liquidation calculation.
For example, where real estate was purchased through a loan, it will not necessarily be correct to determine the other spouse's claim merely by taking half of its market value.
The nature of the asset, timing of debt payments and extent to which those debts must be included in the liquidation calculation should be assessed together.
Are Debts Between the Spouses Considered During Liquidation?
The Turkish Civil Code contains rules concerning the return of property held by the other spouse and the treatment of mutual debts during liquidation.
Liquidation therefore consists of more than simply preparing a list of acquired assets.
The nature of other claims and debts existing between the spouses may also be significant to the calculation.
Can a Matrimonial Property Agreement Change Property Division?
Spouses may enter into a matrimonial property agreement within the limits permitted by law.
Accordingly, the statutory matrimonial property regime will not necessarily apply in exactly the same manner to every marriage.
It should be determined whether the parties validly selected another matrimonial property regime or made arrangements permitted by law concerning certain effects of the participation in acquired property regime.
How Is Property Division Handled in Marriages Beginning Before 2002?
Because of the date on which the participation in acquired property regime entered into force in Türkiye, the period during which a particular asset was acquired is especially important in long-term marriages.
Where the marriage began before 2002, different legal property regimes may apply to different periods of the marriage.
Accordingly, the entire duration of a marriage beginning before 2002 should not automatically be treated as subject to a single matrimonial property regime.
The acquisition date of each asset should be examined separately.
Why Is the Date of Marriage Important in Property Division?
The date of marriage is important in identifying the applicable property regime and the period in which an asset was acquired.
Particularly in long-term marriages, property acquired before marriage, assets acquired during marriage and different matrimonial property periods must be distinguished.
It may therefore not be sufficient to consider only current title or bank records.
The history and source of acquisition of the assets should also be examined.
Is the Participation Claim Paid in Money?
A participation claim is fundamentally a monetary claim.
Accordingly, it does not generally mean that the other spouse receives a direct ownership interest in a particular asset.
The monetary claim calculated as a result of liquidation is sought.
Although the law may permit payment in kind or different liquidation methods in certain special circumstances, the automatic transfer of half of an asset's title does not occur in every case.
Can an Injunction Be Placed on Property in a Property Division Case?
In a matrimonial property dispute, there may be a risk that the disputed assets are transferred during proceedings or that recovery of the eventual claim becomes more difficult.
Where the circumstances and procedural requirements are satisfied, interim protective measures may be requested.
However, an interim injunction is not granted automatically.
The nature of the requested measure, the parties' allegations and the characteristics of the rights over the assets are assessed by the court.
How Long Does a Property Division Case Take?
There is no fixed duration applicable to every matrimonial property liquidation case.
The number of assets, collection of title and bank records, existence of company shares, expert examinations, objections by the parties and appellate proceedings may all affect the duration.
Cases involving numerous properties, bank accounts or commercial businesses may require more extensive examination to complete the liquidation calculation.
Which Court Has Jurisdiction Over a Property Division Case?
Disputes arising from matrimonial property regimes are assessed within the field of family law.
Accordingly, the rules concerning family courts are relevant when determining the court with subject-matter jurisdiction over claims for liquidation of the matrimonial property regime and participation claims.
In places where a separate family court has not been established, the court designated by law may hear the dispute in its capacity as a family court.
Territorial jurisdiction must be separately assessed according to the nature of the dispute and the special statutory rules.
Is a Lawyer Mandatory in a Property Division Case?
There is no general rule requiring a matrimonial property liquidation action to be brought through a lawyer.
However, these proceedings may involve different legal and financial calculations including acquired property, personal property, value increase shares, residual value, equalisation, values to be added and asset valuation.
Legal assessment may therefore be particularly important in cases involving high-value real estate, company interests or complex payment relationships extending over many years.
Divorce and Property Division Cases in Çekmeköy
In disputes concerning liquidation of the matrimonial property regime following divorce in Çekmeköy, it is necessary to determine when and from which source real estate, vehicles, bank accounts, company shares and other assets were acquired.
Particularly for real estate acquired during marriage, the acquisition date and financing source may be more significant than the identity of the spouse registered on the title deed.
Therefore, within the scope of a Çekmeköy divorce lawyer, Çekmeköy family lawyer, Istanbul divorce lawyer, property division lawyer, participation claim lawyer or matrimonial property lawyer, all relevant asset records should be examined together.
Çekmeköy Divorce Lawyer Assistance
Legal assistance concerning liquidation of the matrimonial property regime may include identifying the spouses' assets, separating acquired property from personal property, reviewing title and bank records, preparing claims concerning value increase shares and participation claims, examining company shares and assessing evidence relating to assets.
Depending on the circumstances, the legal nature of transfers made before divorce, the payment structure of mortgaged properties, the status of assets received by inheritance or gift and property provisions contained in uncontested-divorce protocols should also be separately considered.
Conclusion
Property division following divorce is not a simple process under which every asset acquired during marriage is automatically divided into two equal parts.
It is first necessary to determine which matrimonial property regime applies between the spouses and then classify each asset as acquired property or personal property. The Turkish Civil Code contains a presumption that a spouse's property is acquired property unless proven otherwise.
In the event of divorce, the matrimonial property regime terminates with effect from the date on which the divorce action is filed. During liquidation, statutory valuation rules are applied to existing acquired property and the residual value is calculated.
As a general rule, each spouse is entitled to half of the other spouse's residual value. However, this does not mean that half of the ownership of every asset automatically passes to the other spouse; a participation claim is fundamentally a monetary claim arising from liquidation. In divorce based on adultery or attempt on life, the at-fault spouse's share of the residual value may, subject to the statutory conditions, be reduced or eliminated.
In addition, where one spouse contributes without receiving any or adequate consideration to the acquisition, improvement or preservation of an asset belonging to the other spouse, a value increase share claim may arise.
Accordingly, matters such as property division in divorce, liquidation of the matrimonial property regime, participation claim, value increase share, division of a house purchased during marriage, division of company shares in divorce, Çekmeköy divorce lawyer, Çekmeköy family lawyer, Istanbul divorce lawyer and property division lawyer should be assessed according to the acquisition date and source of each asset and the circumstances of the particular case.