Property Sharing in Divorce

The termination of the marriage union is not only an emotional crossroads for the parties, but also the legal division of the financial savings that are the reward of years of effort. Throughout Türkiye and especially in Istanbul, where property values, commercial companies and financial investments are concentrated Property sharing case in divorceis one of the most complex and one of the types of litigation that carries the highest risk of loss of rights.

In accordance with the Turkish Civil Code (TMK), which came into force on January 1, 2002, as a legal property regime in marriages established after this date. regime of participation in acquired property the ayes have it. However, especially where high-budget disputes are seen Çağlayan Courthouse (Istanbul Europe), Bakırköy Courthouse or on the Anatolian Side Kartal (Istanbul Anatolia) Courthouse In cases to be filed in Family Courts, simply knowing the articles of law is not enough. The latest jurisprudence of the Supreme Court, complex mathematical calculations and procedural rules completely change the course of the case.

1. What is a Property Sharing Case in Divorce and in Which Courthouse is It Filed?

Property sharing case in divorce (legal name, liquidation of property regime case) is an independent type of case filed for the purpose of dividing the assets acquired by the spouses during the marriage within the framework of legal rules.

• It is a Separate Case and Fee Subject: Even if property sharing requests are stated in the divorce petition, the court cannot decide this request together with the divorce case. The liquidation case is subject to a completely separate litigation fee from the divorce case and is recorded on a separate basis.
• Pending Matter Condition: In order for the property regime to be liquidated, the marriage union between the spouses must be officially and definitively terminated by the divorce decision. For this reason, in the property sharing case filed while the divorce case is ongoing, the court decides to finalize the divorce case. "pending issue" has to do.
• Jurisdictional and Authorized Courts in Istanbul: competent court Family Courtis. The competent court is the court where the parties reside or where the divorce case is heard. For example, Istanbul's Foggy, Besiktas or Sariyer For spouses residing in the districts Istanbul (Çağlayan) Family Courts; Kadikoy, Atasehir or Umraniye For those in the region Istanbul Anatolia (Kartal) Family Courts; Bakırköy, Bahçelievler or Florida For residents Bakırköy Family Courts is authorized.

What Documents Should Be Prepared Before Filing a Property Sharing Case?

The most important preparation to be made before filing a lawsuit for property division in divorce is to completely determine the assets acquired during the marriage. Because in the case of liquidation of the property regime, the court not only depends on the statements of the parties; It evaluates land registry records, bank transactions, vehicle registration information, company records, loan agreements and other official documents.

In this process, first of all, the values ​​of real estate registered in the spouses' names, vehicles, bank accounts, investment accounts, company shares, loan debts and other assets acquired during the marriage should be determined. The date on which the property was purchased, the source from which the purchase price was paid, whether a loan was used, and whether the payments were made during or before the marriage should be examined separately.

Document order is extremely important, especially in real estate that was purchased before marriage but whose loans were paid during the marriage, in property purchased with inherited money, in cases where personal property was sold and replaced with new property, and in files involving company shares. Bank receipts, loan payment plans, title deed records, vehicle sales documents, inheritance documents and company balance sheet records directly affect the litigation strategy.

Before filing a lawsuit, the possibility of the other party smuggling goods should also be evaluated. If there is a risk of transfer of real estate, vehicle, bank account or company shares, a request for interim injunction along with the petition may be on the agenda. For this reason, when filing a lawsuit for property sharing, attention should be paid not only to the amount of the receivable, but also to the protection of the receivable until the end of the case.

2. Distinction between Acquired Property and Personal Property (TMK Article 219 - Article 220)

In order to make a fair liquidation in property sharing cases, the total assets of the spouses must be divided into two main groups as "acquired property" and "personal property". The values ​​to be shared are only acquired goods; Personal property is completely excluded from liquidation and remains with the owner spouse.

What are Acquired Assets? (TMK article 219)

These are the values ​​of all assets acquired by each spouse by paying for them (by spending labor or money) during the marriage union. By law, the following elements are considered acquired property:

• Income Earned for Working: Salaries, bonuses, additional course fees, self-employment earnings and all kinds of commercial company income.
• Social Security Payments: Pension received from SSI, accumulated retirement benefits or unemployment benefits.
• Compensations: Compensations paid due to loss of workforce or severance and notice payments.
• Income from Personal Property: Rental income from a property you owned or inherited before marriage or interest income from your personal money in the bank. (This issue is one of the most confused issues; although the property itself is personal, its income during the marriage is acquired property).
• Values ​​Replaced by Acquired Goods: Money obtained by selling a vehicle purchased while working within the marriage or a new asset purchased with this money.

What are Personal Property? (TMK article 220)

These are values ​​that are not included in sharing in any way and continue to belong entirely to the spouse who owns them. It covers:

• Items for the personal use of only one of the spouses (clothing, cosmetics, personal hobby tools, etc.).
• All property acquired by the spouses before the marriage union was established (before the date of marriage).
• Properties acquired through inheritance, donation or any other form of gratuitous acquisition, even within the marriage union.
• Non-pecuniary damages.
• Values ​​that replace personal assets (for example, you sell the personal house you inherited from your father and buy a new house without adding anything to it).

How to Prove Which Property Belongs to Whom in Divorce?

One of the most important disputes in property division cases is the determination of whether a property is acquired property or personal property. While one party may claim that the property was acquired through joint efforts within the marriage, the other party may claim that this property is premarital savings, inheritance, donation or value that replaces personal property. For this reason, separate proof evaluation must be made for each asset item.

These documents are critical for the court to determine which property will be included in the liquidation. In particular, the spouse who claims personal property must support this claim with concrete documents. Just because the property is registered in one's name does not always mean that it is personal property; What is important is in what period and from what source the goods were acquired.

Likewise, the fact that a property is acquired within the marriage does not mean that it will be considered as fully acquired property in all cases. If the property was purchased with inherited money or personal savings before marriage, this can be proven with documents and taken into account in the liquidation calculation. For this reason, it is of great importance to present the document flow and money movements correctly in property sharing cases.

3. Types of Claims and Mathematical Calculation Formulas in Property Sharing

The rights that spouses can claim from each other in property liquidation cases have three different legal characteristics:

A. Participation Receivable

It is the most basic receivable right that arises in the liquidation of the legal property regime. The participation receivable is half of the "residual value" remaining after subtracting the debts (liabilities) related to these properties from the asset values ​​of the spouses' own acquired properties.

It is formulated mathematically as follows:

Residual Value=Total of Assets (Acquired Goods+TMK 229 Values ​​to be Added) - Total Liabilities Liabilities+Equalizations

$$\text{Participation Receivable}=\frac{\text{Residual Value}}{2} \quad $$

B. Contribution Fee Receivable

They are concrete contributions made by spouses with their own personal money, especially during the marriage period before January 1, 2002, or to each other's personal property (for example, a spouse's personal home) without receiving any compensation. The spouse who made the contribution may request the value of this contribution to be calculated based on the current market value at the time of divorce.

C. Value Increase Share Receivable (TMK article 227)

It is the right to claim that arises when one of the spouses contributes from his/her personal assets (without receiving any compensation) to the acquisition, improvement or protection of a property belonging to the other. For example, if the woman sells her inherited personal field and uses it to pay the debt of the acquired house registered to her husband, the woman is entitled to "receive a share of increase in value" in proportion to the increase in value of the house at the time of liquidation.

Normal Fault Does Not Affect Property Distribution (Exception for Adultery and Insult against Life)

Common Misconception: "The spouse who causes severe discord in the divorce case and is found to be at fault receives a lesser share in the property division."

Legal Fact: The share in the property division of the spouse who is found to be completely at fault in the divorce case cannot be reduced due to reasons such as the foundation of the marriage union, insult or indifference. The fault rate generally does not affect the division of goods.

However, there are two very important exceptions to this rule (TMK article 236/2): divorce case Adultery (Cheating) or Attack on Life If the divorce decision is finalized on these grounds, the judge decides to reduce or completely abolish the share of the at-fault spouse in the residual value (participation receivable).

II. Difference Between Contribution Fee Receivable and Participation Receivable in Case of Adultery

A very subtle distinction in the Supreme Court case law dated 20206 is as follows: Even if a divorce decision is given due to adultery, the participation claim of the guilty spouse can be reduced or eliminated; based on contributions made by that spouse from his or her personal assets during the marriage "Contribution Fee Receivable" The judge does not have the authority to make a reduction. He can demand back the contribution he made with his own personal money under any circumstances, even if he was deceived.

III. There is only the right to receive personal money, not real rights.

Common Misconception: "The house purchased within the marriage community belongs to the husband; when he wins the property sharing case, the title deed of half of the house passes to the woman."

Legal Fact: Participation claim does not give the right to request the transfer of ownership (right in rem). The plaintiff spouse cannot request that the title deed be transferred to himself; Ownership of the title deed continues. The spouse who owes the participation receivable is obliged to pay this debt in cash. The rightful owner can only buy goods corresponding to half of the current value of the goods. you will get money may request.

IV. Obligation to File an Uncertain Receivable Case

When filing a property sharing lawsuit, it is not possible to know the exact value of the subject of the lawsuit (for example, the current value of vehicles or houses) at the beginning of the case. Therefore, the case must be "uncertain debt case" It should be opened as . Otherwise, the case may be rejected due to procedural traps such as paying incomplete fees or missing the statute of limitations.

How to Prevent Property Loss in Divorce?

One of the most common risks during the divorce process is that one of the spouses transfers real estate, vehicles, bank accounts or company shares to third parties before the property division lawsuit is filed or while the lawsuit is ongoing. If such transactions are carried out in order to reduce the other spouse's participation receivables or value increase share, a claim of property evasion may arise.

It is necessary to act quickly in files where there is a risk of property smuggling. Precautionary measures may be requested while filing a lawsuit, especially if there are transactions such as selling real estate, transferring vehicles, withdrawing money from bank accounts or transferring company shares to close relatives. If the court sees a concrete risk, it may impose an injunction preventing transfer on the title deed, vehicle, bank account or company share.

Property smuggling is not limited to transactions made after a lawsuit is filed. Extraordinary transfers made shortly before the divorce case, gains without compensation or sales made well below market value may also be taken into account in the liquidation calculation. For this reason, the spouse's asset movements should be examined in detail, including the period before the date of the lawsuit.

In this process, title deed records, vehicle sales documents, bank transactions, company share transfer records, intra-family sales and transfers to close relatives are important. It must be evaluated with concrete evidence whether the transaction is a real sale or a fraudulent transaction made to reduce the division of goods.

When preparing a lawsuit in cases where there is suspicion of property smuggling, only receivables should not be requested; At the same time, it should be clearly shown which goods are requested to take precautions, why there is a risk of transfer, and the connection of these goods with the liquidation of the property regime. Otherwise, even if the case is proven right at the end, it may become difficult to collect the receivable.

5. Frequently Asked Questions (FAQ)

Question 1: Will the house or cash inherited by one of the spouses be shared in the divorce?

Reply: No. All kinds of movable, immovable, money or shares inherited by Turkish Civil Code art. According to article 220, that spouse personal property and is excluded from liquidation. However, since the rental income from this inherited real estate within the marriage union is considered acquired property, it is subject to sharing.

Question 2: Are wedding jewelery included in the property sharing?

Reply: No. According to the current decisions of the Supreme Court, jewelry (gold, bracelets, jewelry, etc.) worn at the wedding are, as a rule, considered donated to the woman and her personal property is accepted. Therefore, they do not constitute the subject of a traditional property division case; However, they can be requested as a separate "jewelry receivable case" with a request for a refund in kind or a cash refund.

Question 3: How is the sharing of a house bought before marriage but whose loan is paid during marriage?

Reply: In this case, the entire house is not considered acquired property. Down payments and loans paid before marriage are considered personal property, and the sum of loan installments paid during the marriage is considered acquired property.

Question 4: If personal property is sold and a new property is purchased, is this property considered personal property?

Reply: Yes. TMK m. According to Article 220/4, "values ​​that replace personal property" are also considered personal property. For example, if you sell the house you had before marriage and buy a new house without adding anything to it, this new house is completely your personal property and is not shared.

Question 5: Are rental or interest income from personal property shared?

Reply: Yes. Even though the personal property of the spouses is not shared, unless otherwise agreed upon by a property regime agreement, income such as rent, interest and dividends obtained from these personal properties within the marriage are considered acquired property and are divided half and half in case of divorce.

Question 6: How are joint debts and loans divided in divorce?

Reply: Debts acquired by the spouses during the marriage and loans taken out by them are deducted from the active value of the acquired properties when dividing the property. Sharing is done over the remaining "surplus value". Debts, just like assets, are included in the account and offset at the time of liquidation.

Question 7: How are company shares shared in divorce?

Reply: If the company was established with property acquired during the marriage, the company's balance sheet and equity value on the date the divorce case is filed are calculated by an expert. The other spouse cannot request the management of the company or the transfer of shares; may only request cash participation receivables corresponding to half of the calculated company value.

Question 8: How does the marriage contract affect property division?

Reply: Instead of participating in the legally acquired property regime, the spouses can enter into a "Property Regime Agreement" made through a notary. separation of property, separation of shared property or property partnership They can choose one of the regimes. Sharing rules are determined according to the agreement, effective from the date of the agreement.

Question 9: Can an injunction be issued in a property division case before the divorce is finalized?

Reply: Yes. In order to prevent the defendant spouse from smuggling property (transferring it to third parties), land registry records, vehicle registration records and bank accounts are required when filing a property sharing case. "interim injunction" It may be requested that the transfer be imposed, and the courts usually issue a preventive injunction until the end of the case.

Question 10: Can a property division lawsuit be filed after a consensual divorce?

Reply: This depends on the content of the protocol. If there is a clear statement in the consensual divorce protocol that "the parties have waived their rights to receivables arising from property liquidation", a new lawsuit cannot be filed. However, if there is no article regarding property division and rights are reserved, a lawsuit can be filed within 10 years from the finalization of the divorce.

Question 11: Are the properties secretly sold or transferred before the divorce included in the sharing?

Reply: Yes. TMK m. In accordance with Article 229, unrequited gains made without the consent of the other spouse within 1 year before the end of the property regime and transfers made for the purpose of smuggling property are included in the calculation (active values) as if they still existed.

Question 12: Can I request a refund for wedding dresses, groom's suits and wedding expenses?

Reply: No. TMK m. Pursuant to Article 226/1, the parties may request back the goods belonging to each other, but organizational expenses such as weddings, henna nights, honeymoon, and personally used and consumed expenses such as wedding dresses and groom's suits cannot be claimed back within the scope of property sharing.

Question 13: Which law applies to the sharing of immovable properties located in a foreign country?

Reply: Law No. 5718 on Private International Law and Procedural Law (MÖHUK) art. In accordance with Article 15/2, in disputes regarding the property regime of the spouses, the law of the country in which they reside is applied to the immovable properties located in a foreign country and the courts of that country are authorized.

Question 14: In which courthouse should the property liquidation case be filed?

Reply: In Istanbul, jurisdiction rules are divided according to districts. For example, if the defendant spouse's residence is within the borders of Bakırköy, Bahçelievler Bakırköy Family Court; Şişli is within the borders of Beşiktaş. Istanbul (Çağlayan) Family Court; Kartal is within the borders of Kadıköy Istanbul Anatolia (Kartal) Family Court is authorized.

Question 15: When and at what rate does the interest to be applied to property sharing receivables start to accrue?

Reply: Type of interest to be applied to the receivable in cases of liquidation of property regime it is legal interest. The starting date of interest is not the date on which the divorce case is filed or the date on which the liquidation case is filed, but on the date the court decides on the property division case. is the decision date.

Liquidation of the property regime to be carried out during the divorce process; Beyond a purely mathematical division, protecting property rights is a process that requires high-level legal expertise, including the detection of secret accounts and fraudulent transfers (acts of smuggling goods) and complex equalization calculations. Preventing loss of rights, eliminating unfair precautionary measures or fair liquidation of assets based on their real value is only possible with full knowledge of the procedures and principles of family law. Mehmet Emin Kurşun Law FirmIn this sensitive process from the opening of the divorce case to the finalization of the property liquidation, in order to protect the future financial security of its clients, it offers professional, transparent and result-oriented litigation and consultancy services with its Istanbul-based expert staff, within the framework of the Supreme Court of Appeals General Assembly and chamber jurisprudence.