Which date applies if divorce proceedings have been initiated?
If your spouse has filed for divorce, the first relevant date for the division of property is the filing date. Under the Turkish Civil Code (TMK), when a divorce judgment is issued, the matrimonial property regime ends with effect from the date on which the proceedings were filed. The filing date therefore determines the scope of the assets included in the liquidation.
As a rule, an asset acquired after the divorce proceedings were filed is not included in the liquidation of the terminated regime. However, the source from which its purchase price was paid may still be examined. Assets replacing previously acquired property and continuing loan repayments may require different calculations.
A claim for the division of property may be brought together with the divorce proceedings or in separate proceedings. However, the divorce judgment must become final before the court can rule on the liquidation. Separate proceedings may be stayed pending the outcome of the divorce. If the divorce claim is dismissed, the property regime is not deemed to have ended on the filing date.
Is every asset acquired during marriage divided equally?
The expression “equal division,” commonly used in everyday speech, is often misunderstood. The law does not divide the title to every property or vehicle between the spouses. Each spouse’s acquired property and the related debts are first determined separately. A participation claim in favour of the other spouse is then calculated on the basis of the remaining residual value.
Unless the spouses have chosen another regime, the regime of participation in acquired property (edinilmiş mallara katılma rejimi) applies from 1 January 2002. This is also the statutory regime for those who married after that date. Within the limits prescribed by law, spouses may select another regime by entering into a matrimonial property agreement before a notary.
For marriages entered into before 1 January 2002, the relevant periods must be distinguished. As a rule, the separation of property regime applies until that date, followed by the regime of participation in acquired property. An asset acquired during the earlier period is not necessarily excluded from consideration altogether. If the other spouse proves a contribution in money or monetary value, a contribution claim (katkı payı alacağı) may arise. The judgment of the Second Civil Chamber of the Court of Cassation (Yargıtay), docket no. 2023/3779 and decision no. 2024/5474, also upheld a ruling based on a separate assessment of the acquisition periods.
Which assets constitute acquired property and which constitute personal property?
Wages earned through employment, commercial earnings and assets acquired for consideration while the property regime is in effect generally constitute acquired property. Subject to the statutory conditions, social security payments, compensation for loss of earning capacity and income derived from personal property also fall within this category. A new asset replacing acquired property may retain the same classification.
Assets owned before marriage are personal property. As a rule, assets received through inheritance or as gifts are also excluded from the division calculation. Items intended solely for personal use, claims for non-pecuniary damages and assets replacing personal property are likewise classified as personal property. Rental income from an inherited house, however, may constitute acquired property unless the spouses have agreed otherwise by contract.
An asset may have been purchased using both personal and acquired funds. If premarital savings were used for the down payment and the balance was paid from wages earned during the marriage, the contributions of the two property categories are separated. For homes purchased with a loan, the loan dates, the periods in which instalments were paid and the source of the funds are examined. The purchase date alone does not resolve every issue.
Does an asset belong exclusively to the spouse named in its title record?
A land registry or vehicle registration record identifies the owner. However, the record alone does not determine how the asset is classified for liquidation purposes. Even if a house is registered in the name of only one spouse, it may be included in the acquired property calculation if it was purchased with employment income while the regime was in effect. As a rule, the other spouse does not acquire a direct share in the title but instead obtains a monetary claim at the end of the liquidation.
A spouse alleging that an asset is personal property must prove the facts supporting that allegation. Until proven otherwise, the law presumes a spouse’s assets to be acquired property. In its judgment with docket no. 2021/5373 and decision no. 2022/2457, the Second Civil Chamber of the Court of Cassation applied this presumption to a business registered in a spouse’s name. It held that the spouse who failed to substantiate the personal property defence had not discharged the burden of proof.
Bank receipts, account statements, land registry and vehicle records, loan repayment schedules, tax records and company documents are commonly used as evidence. Certificates of inheritance, gift documents and records showing the sale proceeds of a previous asset may also support a personal property claim. Where the movement of funds between accounts can be traced, the source of the asset can be determined more reliably.
How is a participation claim calculated?
Each spouse’s acquired property is assessed separately. Debts relating to those assets are deducted. Equalisation is carried out for contributions between the personal and acquired property categories. Transfers that the law requires to be added back into the calculation are also considered. Each spouse’s residual value is thereby determined, and the other spouse is, as a rule, entitled to half of that value.
The condition of the asset is determined as of the date on which the divorce proceedings were filed. Its value, however, is assessed according to its market value at the time of liquidation. In the case law of the Court of Cassation, this means the date closest to the judgment. For this reason, the judgment of the Second Civil Chamber of the Court of Cassation with docket no. 2025/2543 and decision no. 2026/2267 found a calculation based on a valuation made approximately one and a half years earlier to be erroneous.
For a participation claim, a spouse does not also have to prove a contribution through housework or childcare. This differs from claims for a share in the increase in value (değer artış payı) and contribution claims relating to the previous regime. Nevertheless, an allegation that an asset was purchased from personal funds or that a contribution was made to personal property requires specific evidence. The general allocation of fault in the divorce does not automatically alter the division ratio. Where divorce is granted on the grounds of adultery or an attempt on the other spouse’s life, the judge may reduce or eliminate the at-fault spouse’s share subject to the statutory conditions.
Is the right to a share lost if an asset has been transferred to another person?
The fact that one spouse sold an asset before the divorce does not necessarily remove it from the liquidation. The law adds certain transfers back into the calculation as though the assets still existed when the property regime ended. Unusual gratuitous transfers made without the other spouse’s consent within one year before the property regime ended may fall within this scope.
The one-year limit does not apply to transfers intended to reduce the other spouse’s participation claim. However, not every sale constitutes the dissipation of assets. The sale price, the relationship with the buyer, the timing of the transfer and how the proceeds were used are assessed together. A sale made for the genuine value and used for family expenses does not have the same consequences as a gratuitous transfer to a person closely connected with the transferring spouse.
Where an asset has passed to a third party, this will generally give rise to a claim calculated against the former spouse. Claims against the third party are subject to additional statutory conditions. An interim injunction (ihtiyati tedbir) may be sought during the proceedings. The court assesses the basis of the request, prima facie evidence and the proportionality of the measure. An injunction is not granted automatically in every application.
Where and within what period must proceedings for the division of property be brought?
Proceedings arising from the liquidation of the matrimonial property regime are heard by the family court. In places without a family court, the designated civil court of first instance hears the matter in the capacity of a family court. For liquidation proceedings brought after divorce, territorial jurisdiction is determined under the special jurisdiction rules of the TMK. In most cases, this is the place where the court with jurisdiction over the divorce proceedings is located.
The Court of Cassation applies the general ten-year limitation period to matrimonial property claims arising from divorce. The period begins when the divorce judgment becomes final. The judgment of the Second Civil Chamber of the Court of Cassation with docket no. 2023/4248 and decision no. 2024/5364 held that dismissing a claim brought more than ten years after the judgment became final on limitation grounds was lawful. Any acts interrupting or suspending the limitation period are assessed separately in the specific case.
Before proceedings are brought, a list of assets and the acquisition date of each asset should be prepared. Loan repayments, bank accounts, company shares and previous sales should be matched against this list. Whether the claim is classified as a participation claim, a claim for a share in the increase in value or a contribution claim affects the calculation. An incomplete asset list, the selection of the wrong period or fund movements of uncertain origin may directly affect the outcome of the proceedings.
Frequently Asked Questions
If a house was purchased during the marriage, does the other spouse automatically own half of it?
No. Title ownership does not change automatically. If the house constitutes acquired property, it is included in the liquidation calculation, and the other spouse will generally have a monetary participation claim. The outstanding loan, personal funds and other liquidation items are taken into account.
Is a house purchased before marriage subject to division?
As a rule, a house purchased before marriage is personal property. However, a claim may arise if the loan was repaid during the marriage using acquired income or if a contribution was made that increased the house’s value. In addition, rental income from the house may constitute acquired property unless otherwise agreed by contract.
Can a spouse who is a homemaker receive a share in the division of property?
Yes. Paid employment or a direct financial contribution is not required for a participation claim under the regime of participation in acquired property. However, proof of a contribution may be required where the claim concerns the separation of property period before 1 January 2002 or an alleged contribution to personal property.
Can property division proceedings be brought before the divorce becomes final?
Proceedings may be brought, or the claim may be raised together with the divorce proceedings. However, the divorce judgment must become final before a decision on the liquidation can be issued. The court may therefore sever the property division proceedings or await the outcome of the divorce.