Family and Inheritance Law

Divorce and the matrimonial property regime

The divorce action and the liquidation of the matrimonial property regime are two separate actions. The liquidation of the property regime is not decided until the divorce judgment becomes final. The most common misconception in practice is the expectation that real estate will be divided within the divorce file.

Since 1 January 2002, subject to a valid choice of regime and transitional provisions for earlier marriages, the statutory property regime is participation in acquired property. Under this regime:

• Assets acquired during the marriage (salary, commercial income, and real estate and vehicles bought with them) count as acquired property.
• Assets received by inheritance or as gifts, assets owned before the marriage and items for personal use count as personal property.
• On liquidation, each spouse holds a claim to half of the surplus value in the other spouse's acquired property.

Loan payments must be analysed by source of funds: equalisation between property groups, a value increase share and a participation claim are distinct mechanisms under TMK Articles 227, 230 and 236. Payment during marriage does not automatically produce the same claim in every case.

Custody and maintenance

The test in custody is not the parents' wishes but the best interests of the child. The court weighs the child's age, established routine and schooling, each parent's capacity to provide care and, if the child is of an age to understand, the child's own view; a social inquiry and an expert assessment are carried out.

The types of maintenance rest on different legal bases: interim maintenance (during the proceedings), child maintenance (for the child), post-divorce maintenance (for the spouse after divorce) and support maintenance (between descendants, ascendants and, subject to the statutory prosperity requirement, siblings). Their conditions and durations are independent of one another.

Division of the estate

When the succession opens, the assets in the estate pass to the heirs in joint ownership (elbirliği mülkiyeti). If the co-heirs cannot agree, an action for partition of the estate is brought or, for real estate, an action for dissolution of co-ownership.

Renunciation of inheritance: the statutory period is three months. It runs from the date the heir learns that they are an heir. If the estate is clearly insolvent, the inheritance may be deemed renounced by operation of law; rather than relying on this, however, the safe course is to file a declaration of renunciation within the time limit.

Action for abatement (tenkis): it reduces the dispositions made by the deceased in excess of the shares of the heirs with reserved shares, to the extent needed to make up the reserved share. The action must be brought within one year of learning that the reserved share was infringed and in any event within ten years of the opening of the will for testamentary dispositions, or the opening of the succession for other dispositions.

Abatement is often confused with collusive transfer by the deceased (muris muvazaası). The difference matters: in abatement a valid disposition is reduced and the claimant must hold a reserved share; in muris muvazaası the transaction is treated as void from the outset and no reserved share is required.

Settlement

For uncontested divorce the parties must agree on the financial consequences of divorce and the position of any children, and the judge must approve the arrangement. Liquidation of the matrimonial property regime may be regulated separately in the agreement, but settling it is not a compulsory condition for uncontested divorce.

For general information only; time limits and rights vary according to the specific case.