Liquidation of the Matrimonial Property Regime and Contribution Claims

What we do in this area

A divorce judgment does not by itself resolve the property relationship between the spouses; division of the property is the subject of a separate action, the action for liquidation of the matrimonial property regime. Under this heading the office brings participation claim, value increase share and contribution claim actions or defends against such actions, and prepares applications for interim measures against the risk of assets being disposed of, in parallel with the divorce action. The divorce action itself is covered on the uncontested and contested divorce page.

In these actions the title history of the real estate, loan payments and bank transactions form the basis of the calculation; in files dominated by real estate, the work is done together with the real estate law side.

Which regime applies

Unless the spouses have concluded a matrimonial property agreement before a notary, drawn up or certified by the notary, the statutory regime applies (Articles 202 and 205 of the Turkish Civil Code, TMK). Since 1 January 2002 the statutory regime has been participation in acquired property. For those married before that date, the separation of property regime of the former Civil Code applies from the date of marriage until 2002, and the participation regime thereafter (Article 10 of Law No. 4722). In long marriages there are therefore two separate periods and two separate methods of calculation.

How the participation claim is calculated

Under the participation regime, assets fall into two groups. Acquired property (Art. 219): assets acquired in return for work, social security payments, income from personal property and assets replacing them. Personal property (Art. 220): assets owned before the marriage, assets received by inheritance or gift, items for personal use and claims for non-pecuniary damages. The spouse claiming that an asset is personal property bears the burden of proving it; assets not proved to be personal are deemed acquired property (Art. 222).

Valuation is made at market value at the time of liquidation (Arts. 232, 235); taking a value close to the date of judgment prevents the claim from being eroded in lengthy proceedings. In a divorce on the ground of adultery or attempt on life, the judge may reduce or remove the share of the spouse at fault in the surplus value in accordance with equity (Art. 236/2). The participation claim is a monetary claim; payment may also be made in kind (Art. 239), but no direct ownership right over real estate arises in favour of the creditor spouse.

Value increase share and contribution claim

Where one spouse has contributed without consideration to the acquisition, improvement or preservation of an asset belonging to the other, on liquidation that spouse receives a share of the increase in value of that asset in proportion to the contribution (Art. 227). A typical example is one spouse using personal funds to contribute to the other spouse’s asset. Payments between the same spouse’s personal and acquired property are instead assessed as equalisation under Article 230, which may affect the participation claim under Article 236. If the asset has lost value, the initial value of the contribution is taken as the basis.

For assets acquired before 1 January 2002, the contribution claim shaped by Court of Cassation (Yargıtay) practice comes into play: the spouse's concrete contribution to the acquisition of the other spouse's asset is proved, and the contribution ratio is applied to the value of the asset close to the date of judgment. For this period, housework and childcare alone do not count as a contribution; the burden of proof lies with the spouse asserting the contribution, and this is usually where the decisive difficulty of the file lies.

Litigation process and interim measures

The liquidation action is brought before the family court; if filed together with the divorce action, it is stayed until the divorce judgment becomes final. In the settled practice of the General Assembly of Civil Chambers of the Court of Cassation, the participation claim is subject to the ten-year general limitation period in Article 146 of the Turkish Code of Obligations No. 6098 (TBK), running from the date the divorce judgment becomes final.

Transfer of assets to third parties once divorce is on the horizon is a frequent problem. While the marriage continues, a restriction on the spouse's power of disposal (Art. 199 TMK) and a family home annotation (Art. 194) may be sought; the placing of a preliminary injunction on the land register entry during the action is explained in a separate article. Where transfers were made with the intention of reducing the claim, if the claim cannot be satisfied at the end of the liquidation, an action may be brought against the third party who benefited from the disposition (Art. 241). The office follows these files before the İzmir family courts and, where necessary, in other provinces.

For details of how we work: How we work.