ENTRANCE
The regulation of property and economic life between spouses during the marriage is a critical issue in civil law,
both for balancing individual rights and protecting the principles of economic justice within society. The
fundamental mechanism for this regulation is property regimes. Property regime cases are cases that determine
the legal consequences of relationships such as the division of assets, contribution, and liquidation between
spouses during the establishment, change, dissolution, or divorce processes of a marriage.
Property regime cases, particularly regarding liquidation processes (sharing, equalization, and calculation of
participation receivables), are both technically complex and often subject to legal interpretation differences. Therefore, it
is crucial to thoroughly examine the theoretical foundation, procedural provisions, and issues surrounding these cases.
1-) What is the Property Regime, Liquidation, Regime Agreement?
1.1. What is the Property Regime?- The “property regime” is the private legal system that determines the legal relationships between spouses regarding their
assets during marriage. It is the domestic legal regulation established between spouses regarding their assets upon marriage.
This regulation covers matters such as the spouses’ rights to dispose of, manage, utilize, and fulfill their obligations.
The property regime essentially fulfills three functions:- To regulate the spouses’ assets (who manages what, who has what authority).- Ensuring that elements such as the spouse’s labor and contribution are reflected in the assets (e.g. contribution share, participation
receivable).- To decide on the fair distribution of property in case of dissolution of marriage.
1.2. Distinction between Legal, Elective and Emergency Regimes
Within the Turkish Civil Code (TCC) system, property regimes are divided into three main categories:- Legal property regime:If there is no special agreement between the parties, this is the regime that automatically applies (in
Türkiye, this is designated as the regime of participation in acquired property).- Optional property regimes:These are the regimes that spouses can choose in advance through a property regime agreement (e.g. property
separation, shared property separation, property community).- Emergency regime:These are special regulations that allow intervention outside the ordinary state; in Turkish law, the
application of the emergency regime is limited and remains limited to exceptional cases.
1.3. Property Regime Agreement: Conditions, Form, Effect
Spouses can enter into a property regime agreement before or after marriage. However, certain
conditions are required for the agreement to be valid:
Driving licence:Spouses must have the capacity to enter into contracts.
Shape:The contract must generally be drawn up or notarized; otherwise, it is considered
invalid.
Freedom of Will and Limitation:Spouses may choose the property regime they wish, but it must be within the
limits established by law. If certain provisions violate public order, the contract’s provisions are deemed invalid.
Title Deed Commentary:For an optional regime contract to be enforceable against third parties, an annotation must be filed in
the land registry. If no annotation is filed, the contract cannot be enforced against outside third parties.- The provisions of the contract may include matters such as the spouses’ disposition authority, contribution
arrangements, and the distribution of debt obligations. However, the contract’s decisive effect between the parties only
arises against third parties if an annotation is provided.
1.4. Concept of Liquidation: Sharing, Participation Receivable, Equalization
When the property regime ends, a liquidation process is conducted between the spouses. Liquidation is the process of
recalculating and dividing the assets between the spouses after the regime ends. The basic elements of liquidation are:
Determination of type of assets:Separation of categories such as acquired property, personal property, and shared
property.
Distribution of debts:The proportion in which joint debts will be shared is determined.
Participation fee:In the legal property regime, each spouse can claim a “participation claim” regarding the acquired
property of the other spouse.
Equalization / capital gain share:In some cases, it is necessary to balance the increases in value between goods;
this means taking into account the elements of increase in value, especially in shared goods.
Transfer to liquidation and sharing:Assets are distributed based on final value calculations, some assets can be
allocated (e.g. family home, household goods), etc.- Liquidation refers to a process that turns into financial claims beyond the property regime provision.
2-) Types of Property Regime Cases
Property-related lawsuits are divided into different categories based on the nature of the incident. Below, we examine the most
common types and the legal nature of each.
2.1. Case for Invalidity/Cancellation of the Elective Regime Agreement
One spouse may request the invalidation or annulment of a property regime agreement. These cases typically
arise in the following situations:- Due to incapacity (e.g. restriction)- Shape- Impairment of will (error, fraud, coercion)- Containing provisions contrary to public order- These types of lawsuits are evaluated according to the general provisions of civil law and are generally filed in the court where
the contract was made.
2.2. Liquidation of the Property Regime / Sharing Case
When a marriage ends (divorce, death, annulment, transition to another regime), the property regime is liquidated. Cases that
can be filed in this context include:
Participation receivable case:Sharing of excess value of acquired property between spouses within the scope of the
legal property regime.
Sharing / liquidation case:Sharing and allocation of the assets of the spouses and determining their rights to benefit
from them.
Debt sharing case:Distribution of joint debts in appropriate share ratios.
Equalization/value increase account case:Elimination of value differences between goods and determination of value
increase shares.
Requests for personalization:Request that certain assets be allocated to the spouse’s separate use (e.g. household goods, family
home).
A property regime liquidation case can generally be filed together with a divorce case or it can be requested
separately after the divorce decision is finalized.
2.3. Interaction of the Property Regime with Other Cases
Connection with divorce:The connection between divorce proceedings and property disputes is a frequent topic of debate.
The court may consider property disputes as a matter pending the finalization of the divorce decree.
Relationship with inheritance law:In the event of death, the property regime ends, and liquidation proceedings are combined with inheritance law. A
claim for participation may be considered together with the division of the estate.
Connection with other special cases such as pre-emption and reduction cases:Some receivables within the scope of the property
regime may be associated with reduction lawsuits.
2.4. Competent Court- Property regime cases fall within the jurisdiction of the Family Court (in accordance with the Turkish Civil Code and regulations on
family law).- In terms of procedure, there are clear regulations in the laws; for example, a 10-year limitation period applies in
property division cases.- In addition, the place where the lawsuit will be filed is the common residence during the marriage or the residence of the parties;
there may be special arrangements.
3-) How the Litigation Process Works
The property regime litigation process requires careful preparation, legal analysis, and technical
calculations. Therefore, the support of a qualified attorney is crucial. Below are the key stages of the process
and points requiring special attention.
3.1. Petition and Request
The petition must basically state the following:- Identity and marriage information of the parties- Type of property regime (legal or optional regime contract)- Reason for termination (divorce, death, transition to another regime)- Elements of assets (immovable properties, movable properties, bank accounts, receivables, payables)- Type of sharing requested: participation receivable, increase in value, debt sharing, release- Valuation methods based on calculation, request for expert review- Documents showing that the conditions of the case are met
3.2. Defense, Counter-Evidence, Objections
The defendant spouse or other party may raise the following defenses:- The claim that some goods are personal property- The claim that the property regime agreement is not valid- Objection to valuation and contribution calculation- Timeout defense- Determination of goods that are considered combat-safe
As evidence;Elements such as land registry records, bank statements, purchase documents, valuation reports, expense
documents, and witness statements are presented.
3.3. Expert Review and Valuation
An expert witness is appointed in most property regime cases. Expert:- Determines the value of goods- Compares salary, income and debts- Determines the increase in value- Determines the share of joint debts- The court will rely on the expert report, but may review procedural errors and calculation errors.
3.4. Decision
If the court finds the property regime case to be valid:- Decides that the participation fee will be paid- Decides on the sharing of goods- Regulates the specificity processes- It provides a debt sharing decision- After the decision becomes final, it is reflected in the land registry records.- The decision is generally innovative. It translates property regime regulations into actual situations.
4-) Important Issues in Application
The intensely controversial issues encountered in practice in property regime cases are vividly reflected in
legal literature and court decisions. Some of these are discussed below:
4.1. Newly Acquired Properties When Divorce Case Is Filed
According to Article 225/2 of the Turkish Civil Code (TCC), the dissolution of the marriage is considered grounds for termination of the
property regime, and the regime ends on the date the divorce case is filed. Accordingly, acquisitions made after the divorce case is filed
are not included in the property regime. This point has been frequently discussed, particularly in Supreme Court decisions.
4.2. Value Increase Share / Equalization Problem
Should the increase in value of the assets from the date of acquisition to the date of division be taken into account during the
liquidation process? To what extent should the increase in value be considered? These questions often lead to disagreements
between spouses. Jurisprudence includes opinions on financial valuation principles, market value as a basis, and reasonable
limits on the increase.
4.3. Limits and Contributions for Personal Assets
Personal property (e.g., inheritances, donations, clothing, and non-pecuniary damages) is not subject to liquidation. However, income
or increases in value from personal property may be subject to liquidation in special circumstances. Furthermore, a spouse’s
contribution to the division process from their personal property may give rise to a claim for contribution. The establishment of these
limits is a matter of intense debate.
4.4. Making a Property Regime Agreement During Marriage and Its Retroactive Application
Spouses can enter into a property regime agreement after marriage, but the retroactive effect of this agreement
can be controversial. For example, there are differences in doctrine regarding the impact of the agreement on
property acquired before its registration date.
4.5. Statute of Limitations / Limitation Period
In cases involving property regime liquidation claims, there are legally defined time limits (such as a 10-year period). Issues such as the
starting point of these time limits, the circumstances in which they can be suspended, and their interruption are frequently the subject
of dispute.
4.6. International / Foreign Element
Factors such as foreign spouses, property acquired in foreign countries, and property regime
regulations in different legal systems create complexity in dispute resolution. Issues such as which
legal rules apply and the principle of reciprocity become crucial.
CONCLUSION
Property regime cases are special cases specific to family law, aimed at the fair and legal liquidation of
property relations between spouses following the dissolution of a marriage. The acquired property
regime, adopted by the Turkish Civil Code as the legal property regime, safeguards the return of
economic contributions between spouses and envisions a system based on the principle of equality in
the division of property acquired during the marriage.
While these cases revolve around claims such as participation claims, capital gains shares, and contribution fees,
they are also closely linked to technical issues such as the nature of the assets, contractual arrangements, and the
determination of the liquidation timeframe. The complex nature of property regime law necessitates careful
evaluation from both substantive and procedural perspectives.
Ultimately, property regime cases are of central importance not only for the division of assets but also
for the legal recognition of the spouses’ economic labor and contributions. As such, they play a
fundamental role in protecting individual rights and fulfilling the social function of family law.
MOST WONDERED QUESTIONS ABOUT THE PROPERTY REGIME CASE
1-) What is a property regime case?
A property regime lawsuit is a lawsuit filed for the liquidation, division and calculation of the property regime valid
during the marriage between spouses.
2-) Which property regimes are regulated in the Turkish Civil Code?
Participation in acquired property (legal regime), separation of property, separation of property with sharing and community of property.
3-) Which is the legal property regime?
According to TMK Article 202, unless the spouses agree otherwise, the legal regime is the regime of participation in acquired property.
4-) In what cases can a property regime lawsuit be filed?
It is opened when the property regime ends due to divorce, annulment of marriage, death of one of the spouses or change of property
regime of the spouses.
5-) Which court hears property regime cases?
In places where family courts do not exist, civil courts of first instance act as family courts.
6-) When can a property regime lawsuit be filed?
It can be opened after the termination of the property regime, for example, after the divorce decision becomes final.
7-) Is there a time limit for filing a lawsuit?
Yes. A divorce must be filed within 10 years of its finalization. After that 10-year period, the
statute of limitations will expire.
😎 Which assets are shared in property regime cases?
Acquired property is shared; personal property is excluded (e.g., inheritance, donations, items for personal use).
9-) What is the difference between acquired property and personal property?
Acquired property: Property acquired during the marriage with wages, earnings, social security income, etc.
Personal property: Premarital property, inheritance, donations, personal use items.
10-) What is the participation fee?
It is the right of the other spouse to claim half of the excess value of the acquired property of one of the spouses
after its liquidation.
11-) Who has the burden of proof in property regime cases?
The spouse who claims that a property is personal property must prove this claim.
12-) Can a property regime case be filed together with a divorce case?
No, it is usually filed separately after the divorce case. However, it can be filed in conjunction with the
divorce case.
13-) How is the property regime liquidated if one of the spouses dies?
The assets of the deceased spouse are first liquidated in accordance with the provisions of the property regime, and then the inheritance is divided.
14-) What is the statute of limitations in property regime cases?
If the lawsuit is not filed within 1 year from the termination of the property regime, the right to sue is void.
15-) Can a lawsuit be filed if a property regime agreement has been made?
Yes, but the liquidation will be carried out in accordance with the provisions of the regime accepted in the contract.
COURT OF APPEALS DECISIONS REGARDING THE PROPERTY REGIME CASE
1-) Court of Cassation 8th Civil Chamber, 28.04.2015, E. 2013/23822, K. 2015/9565 (Even if the other
spouse has no contribution, he/she is entitled to half of the acquired property);
“…pursuant to Articles 231 and 236/1 of the Turkish Civil Code, “the other spouse has the opportunity to
claim a participation claim on property acquired after January 1, 2002, at the rate of half of the residual
value arising from the Law.” As emphasized in the Supreme Court decision, “all properties of a spouse must
be considered acquired property until the contrary is proven,” and “it is irrelevant whether the spouse
making the request works or makes any contribution in terms of the participation claim.” In calculating the
participation claim, “after deducting the debts related to the property from the total value of the acquired
property (Article 219 of the Turkish Civil Code), including the amounts obtained from the values to be
added (Article 229 of the Turkish Civil Code) and equalization (Article 230 of the Turkish Civil Code), taking
into account the acquired rights of the parties…”
2-) Court of Cassation 8th Civil Chamber, 13.06.2011, E. 2010/5757, K. 2011/3446 (Property whose source cannot be
proven in the liquidation of the Property Regime is considered as acquired property);
“…In the participation claim regime, the presumption is that property acquired during the marriage union is acquired property.
Anyone claiming otherwise must prove that the property is personal property…
(…)
Property that is determined to belong to a spouse, but it is not determined whether it is personal property or acquired property, is
considered acquired property until the contrary is proven.
3-) Court of Cassation 8th Civil Chamber – E. 2010/58, K. 2010/1634, T. 6.4.2010 (Professional Assets
arising from activities and business operations are in the status of acquired property);
“…According to Article 221 of the Turkish Civil Code, property arising from the practice of a profession or the operation of a
business is considered as acquired property and is included in the liquidation unless otherwise agreed upon in the property
regime agreement between the spouses…”
4-) Court of Cassation 8th Civil Chamber – E. 2013/11453, K. 2013/9715, T. 20.6.2013 (Acceptance of
the Money Obtained from the Sale of the Vehicle as a Substitute Value for the Acquired
Property);
“…The money obtained from the sale of the vehicle is also considered as the value replacing the acquired property in accordance with
the 5th clause of the 2nd paragraph of the same article…”
5-) Court of Cassation 8th Civil Chamber, Docket No: 2010/5567, Decision No: 2011/2071, 11.04.2011 T.
(Decision on the Personal Belongings of Spouses);
It must be accepted that the case was filed based on Articles 222/1, 683 and paragraphs of the Turkish Civil Code, which states
that “…Anyone who claims that a certain property belongs to one of the spouses is obliged to prove his claim.”
If the court determines, as a result of the investigation and examination (the plaintiff also relied on oath
evidence by stating “vs. delail” in the petition), that the requested items are present as is, the dispute is
based on property rights, so there is no statute of limitations. Each spouse may request their personal
belongings at any time, before or after the termination of the property regime. This request cannot be
considered as a contribution, increase in value, or a claim for participation in the residual value in the event
of the liquidation of the property regime. Litigation regarding such items cannot be considered as an
accessory (additional) action to the divorce.
The Importance of Legal Support
Property regime litigation, which has become particularly prevalent recently, is a matter requiring technical
knowledge, mastery of legislation, and in-depth expertise in judicial practices. While the legal provisions are
clear, each case has its own unique circumstances, and even a minor mistake can lead to loss of rights.
Therefore, working with an experienced attorney from the outset is crucial to determining the right
strategy, protecting your rights, and achieving the swiftest resolution.
It’s important to remember that every step taken during the litigation process has legal and financial implications.
A professional lawyer will guide you not only in preparing the petition but also in gathering evidence,
representing the court, negotiating, and pursuing potential alternative solutions.
In order not to risk your rights and to manage the process safely, it is recommended that you consult a specialist lawyer.