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The regime of participation in acquired property, the most widely applied of the matrimonial property regimes provided for spouses in the Turkish Civil Code, is the statutory default: if the spouses did not choose any matrimonial property regime when marrying, the “regime of participation in acquired property” provided for in the Code applies. In this article we discuss the concepts of acquired property and personal property, the liquidation of the matrimonial property regime, the share in increase in value, the values to be added back, the equalisation claim and the remedies available against the concealment of assets during divorce proceedings.
The Turkish Civil Code provides a number of matrimonial property regimes for spouses. By making a choice, spouses may opt for separation of property, separation of property with sharing, or community of property by means of a matrimonial property agreement.
In this article we will touch upon the “regime of participation in acquired property”which is the most widely applied in practice.
Effective date
Although this regime was not included in the former Civil Code, it is included in the Turkish Civil Code No. 4721, which entered into force on 01.01.2002. Accordingly, as between spouses who married before this date, separation of property, the statutory matrimonial property regime in force until 31.12.2001, will apply, and after 01.01.2002 the regime in force, participation in acquired property, will apply.
Two concepts arise under the regime of participation in acquired property: Acquired property and personal property.
Acquired property · TCC Art. 219
Assets obtained by each spouse for consideration during the continuation of the matrimonial property regime.
Personal property · TCC Art. 220
Items for personal use, assets belonging to the spouse at the start of the regime or acquired without consideration, claims for non-pecuniary damages and assets replacing them.
– Acquired property are defined in the Code as follows:
“II. Acquired property
ARTICLE 219
Acquired property consists of the assets that each spouse obtains for consideration during the continuance of this property regime.The acquired property of a spouse includes, in particular:
1. Acquisitions in return for his or her work,
2. Payments made by social security or social assistance institutions and organisations, or by funds and similar bodies established to assist staff,
3. Compensation paid for loss of capacity to work,
4. Income from his or her personal property,
5. Assets replacing acquired property.”
Turkish Civil Code, Art. 219
To illustrate with examples, as also set out in the Code: wages received by the spouses in return for their work (salary, tips, bonuses, etc.), profits from a commercial enterprise, pensions granted by social security institutions, compensation for work accidents and the like are examples of acquired property.
To explain the matter of income from personal property: for example, a house that belonged to one spouse before the marriage and that spouse's money in the bank will continue to belong to that spouse (as his or her personal property), but the rent from that house and the interest on the money in the bank constitute acquired property.
Assets replacing acquired property may be explained as follows: compensation paid by the insurer because a car purchased by the spouses during the marriage has been written off likewise constitutes acquired property.
– Personal property are defined in the Code as follows:
“III. Personal property
1. By law
ARTICLE 220
The following are personal property by operation of law:1. Items used exclusively for the personal use of one of the spouses,
2. Assets belonging to one of the spouses at the beginning of the property regime, or subsequently acquired by a spouse through inheritance or by any other gratuitous means,
3. Claims for non-pecuniary damages,
4. Assets replacing personal property.”
Turkish Civil Code, Art. 220
Again, to explain briefly with examples: items intended solely for the needs of one of the spouses and not used by the other spouse (for example, the husband's shaver), items belonging to one of the spouses before the marriage, gains passing to a spouse through inheritance, non-pecuniary damages and assets replacing personal property constitute personal property.
On the other hand, the Code provides:
“2. By contract
ARTICLE 221
By a property regime agreement, the spouses may agree that assets which would otherwise form part of acquired property, arising from the exercise of a profession or the operation of an enterprise, are to be regarded as personal property.By a property regime agreement, the spouses may also agree that income from personal property shall not form part of acquired property.”
Turkish Civil Code, Art. 221
This provision is also laid down.
The regime in force during the marriage comes to an end upon divorce, and liquidation follows. In liquidating the property regime, it is necessary to determine carefully what the assets are, and which of them are acquired property and which are personal property. The action to be brought in this respect “Action for Liquidation of the Matrimonial Property Regime”.
– Of course, within the marital union it may not always be possible to easily classify assets as acquired property or personal property. Sometimes one spouse may contribute to the personal property of the other, resulting in an increase in the value of the property. In such cases, the contributing spouse claim for a share in the increase in value the right to claim arises.
The share in the increase in value is defined in the Code as follows:
“2. Share in the increase in value
Turkish Civil Code, Art. 227/1
ARTICLE 227/1
Where one of the spouses has contributed, without receiving any or adequate consideration, to the acquisition, improvement or preservation of an asset belonging to the other, he or she shall have a claim, in proportion to his or her contribution, to the increase in value of that asset at the time of liquidation, and this claim shall be calculated according to the value of the asset at the time of liquidation; where there has been a loss in value, the initial value of the contribution shall be taken as the basis.”
Worked example
For example, the wife (A) contributed TRY 100,000 to the renovation and repair of a flat worth TRY 400,000 that her husband (B) had inherited from his mother. The value of the flat at the time of liquidation has become TRY 1,000,000.
In this case, the increase in value is calculated as follows:
While the value of the flat was TL 400.000, it became TL 500.000 with the addition of the TL 100.000 contribution. In this case, the contribution ratio is 400.000/500.000 TL, i.e. 1/5. If the flat is worth TL 1.000.000 at the time of liquidation, 1/5 of TL 1.000.000, i.e. TL 200.000, is the share in the increase in value.
– On the other hand, where one spouse causes the other to obtain a smaller liquidation claim, these shall be treated as value to be added and included in the liquidation. The values to be added are regulated in the Code as follows:
“2. Values to be added
ARTICLE 229
The following shall be added to acquired property in terms of value:1. Gratuitous dispositions, other than customary gifts, made by one of the spouses without the other spouse's consent within one year before the end of the property regime,
2. Transfers made by one spouse during the continuation of the matrimonial property regime with the intention of reducing the other spouse’s participation claim.”
Turkish Civil Code, Art. 229
– Where a spouse’s debt is financed from another set of assets, however, equalisation claim will come into play. According to the Code:
“3. Compensation between personal property and acquired property
ARTICLE 230
Where the debts of a spouse relating to personal property have been paid out of acquired property, or debts relating to acquired property have been paid out of personal property, equalisation may be claimed at the time of liquidation.Each debt burdens the category of property to which it relates. A debt whose category cannot be determined shall be deemed to relate to acquired property.
Where one category of property has contributed to the acquisition, improvement or preservation of an asset in the other category, in the event of an increase or decrease in value, equalisation shall be made according to the ratio of the contribution and the value of the asset at the time of liquidation or, if the asset has been disposed of earlier, in accordance with equity.”
Turkish Civil Code, Art. 230
– Finally, arising during the divorce process removal of assets from the estate it is also useful to touch briefly on the matter of:
Interim injunction · family court
An interim injunction is ordered on the land register record; for the duration of the injunction the property cannot be sold to a third party.
Family home annotation · land registry
It does not matter in which spouse’s name the immovable property is registered; once the annotation is entered, the property cannot be sold without the other spouse’s consent.
In practice, it is frequently seen that, while divorce proceedings are pending, one spouse conceals or transfers assets in order to avoid paying compensation to the other or to avoid the division of property. To prevent this, a request may be made to the family court for a “interim injunction” to be placed on the assets in question. In that case, the family court orders an interim injunction to be entered in the land registry record in order to prevent the sale of the relevant immovables, and these assets cannot be sold to a third party for the duration of the injunction.
Alternatively, by applying to the land registry directorate where the immovable is located, a request may be made for a “family residence annotation” to be placed on the immovable. For the purposes of this application, it is irrelevant in which spouse's name the immovable is registered. Once the land registry directorate has entered a family home annotation on the immovable, the immovable cannot be sold without the consent of the other spouse.
The “Actions for Liquidation of the Matrimonial Property Regime” are among the actions that are highly complex and must be conducted meticulously. Otherwise, the person is likely to be unable to obtain their claim or to receive far less than they are entitled to. For this reason, conducting these actions with professional legal assistance is important for the protection of legal interests.
Related page: Divorce Lawyer in Ankara — uncontested and contested divorce, custody, maintenance and division of property
Related legislation: Turkish Civil Code No. 4721 (mevzuat.gov.tr)
It applies as the statutory regime to spouses who did not choose another regime by a matrimonial property agreement when marrying. According to the article, for spouses married before 01.01.2002, separation of property applies until 31.12.2001 and the regime of participation in acquired property applies after that date.
TMK m.219’a göre edinilmiş mal, her eşin rejimin devamı süresince karşılığını vererek elde ettiği malvarlığı değerleridir. Çalışma karşılığı edinimler, sosyal güvenlik ödemeleri, çalışma gücü kaybı tazminatları, kişisel malların gelirleri ve edinilmiş malların yerine geçen değerler bu kapsamdadır.
TMK m.220’ye göre bir eşin yalnız kişisel kullanımına yarayan eşya, rejimin başlangıcında o eşe ait olan veya sonradan miras ya da karşılıksız kazanma yoluyla edinilen değerler, manevi tazminat alacakları ve kişisel malların yerine geçen değerler kişisel maldır.
According to the article, a house owned by a spouse before marriage remains personal property; however, the rental income from the house is acquired property. The spouses may agree in a matrimonial property agreement that income from personal property will not be included in acquired property.
TMK m.227/1’e göre bir eş, diğerine ait bir malın edinilmesine, iyileştirilmesine veya korunmasına hiç ya da uygun bir karşılık almadan katkıda bulunmuşsa, tasfiyede bu maldaki değer artışı için katkısı oranında alacak hakkına sahip olur.
TMK m.229’a göre rejimin sona ermesinden önceki bir yıl içinde diğer eşin rızası olmadan olağan hediyeler dışında yapılan karşılıksız kazandırmalar ile katılma alacağını azaltmak kastıyla yapılan devirler edinilmiş mallara değer olarak eklenir.
An interim injunction over the assets may be requested from the family court; while the injunction is in force, the immovable cannot be sold to a third party. In addition, an application may be made to the land registry for an annotation of family residence; once annotated, the residence cannot be sold without the other spouse's consent.
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