How is Property Divided in Divorce

Under Article 202 of the Turkish Civil Code (TMK), unless the spouses have agreed on a different regime by contract, the statutory regime is participation in acquired property. Under this regime, each spouse retains the power to administer their own assets; co-ownership arises only in the sense of a receivable calculated with respect to assets acquired during the marriage once the regime terminates.

The regime terminates upon the finalization of a divorce decree, annulment of the marriage, death, or the parties' contractual adoption of a different regime. The date of termination is the reference point used to determine which assets are included in the liquidation.

Article 220 of the TMK sets out, on an exhaustive basis, which assets are treated as personal property and therefore excluded from liquidation, unless otherwise agreed:

• Items used exclusively for one spouse's personal use
• Assets that belonged to a spouse at the start of the property regime, or that a spouse later acquired through inheritance or any other form of gratuitous acquisition
• Claims for moral (non-pecuniary) compensation
• Assets that have replaced personal property

Outside these exceptions, all assets acquired through labor or income during the marriage are considered acquired property and are included in the liquidation account. The parties may also, to the extent the law permits, agree by contract on which assets are treated as personal property.

Once the property regime terminates, the liquidation process begins under Article 225 et seq. of the TMK. Each spouse's acquired property and personal property are first determined separately; liabilities relating to acquired property are deducted, and the remaining amount is used to establish the residual value for each spouse.

Unless otherwise agreed, each spouse's participation claim in the other's residual value is divided equally. If a spouse's liabilities relating to acquired property exceed its assets, no residual value arises for that spouse, and the other spouse has no participation claim against them. Under Article 239 of the TMK, the participation claim may accrue interest from the date it becomes due, and security may be requested where warranted.

Where one spouse has contributed, without consideration or for inadequate consideration, to the acquisition, improvement, or preservation of an asset belonging to the other spouse, a right arises in proportion to that contribution in the value of the asset at the time of liquidation. This value-increase share, regulated under Article 227 of the TMK, is calculated by relating the contribution to the asset's value at the time it was made, with the asset then valued as of the date of liquidation.

This provision typically comes up where one spouse contributed personal property or labor toward the purchase, construction, or debt repayment relating to real estate owned by the other. The existence and proportion of the contribution are established through the documents submitted to the file and, where necessary, an expert examination.

Under Articles 202 et seq. of the TMK, spouses may choose, instead of the statutory regime, one of separation of property, participatory separation of property, or community of property. This choice is made through a matrimonial property agreement concluded either before or during the marriage.

The rules governing liquidation vary significantly depending on the regime chosen; under separation of property, for instance, no participation claim generally arises between the spouses. For this reason, clarifying before a case begins whether a property agreement exists and, if so, which regime was chosen matters for planning the process correctly.

The TMK provisions on property division apply regardless of whether the divorce concludes as uncontested or contested. In an uncontested divorce, the parties may, to the extent the law permits, mutually waive their claims to a participation receivable or a value-increase share within the protocol, or otherwise arrange these matters between themselves.

In a contested proceeding, property-division claims may be raised as a separate case or together with the divorce case; in that event, the liquidation account is worked out based on the asset information submitted to the file and, where necessary, an expert report. The family court has jurisdiction over property-division cases. For more comprehensive information on this topic, you can review our İzmir marital property lawyer page. Support in these matters is provided in Karabağlar, as well as Konak, Buca, and Balçova.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy