What is a Marital Agreement

The matrimonial property agreement, regulated under Article 202 et seq. of the Turkish Civil Code (TMK), allows spouses to determine, either before or during the marriage, which property regime will apply between them, chosen from the options listed in the law. If the spouses do not choose another regime, the statutory regime — participation in acquired property — applies automatically.

Freedom of contract is limited here: the parties may only choose among the regimes set out in the law; they cannot construct an entirely different regime based on rules the law does not provide for. On matters outside the property regime, however — such as the family home or arrangements concerning children — the parties are given a comparatively wider degree of contractual freedom.

Under Article 204 of the TMK, a matrimonial property agreement can be concluded in two ways: through a written declaration made before a civil registry official at the time of applying to marry, or through an agreement drawn up or certified by a notary public, either before or after the marriage. No official or institution other than these has the authority to draw up a matrimonial property agreement.

The agreement can be made before the marriage or during it; however, an agreement made or amended during the marriage must be carried out before a notary public. Under Article 203 of the TMK, a person must have the capacity to discern in order to enter into such an agreement; persons with the capacity to discern who are minors or under restriction may enter into it with the consent of their legal representative.

Besides the statutory regime, the law allows spouses to choose among three optional regimes:

• Separation of property: Each spouse fully retains the rights of administration, use, and disposition over their own assets, and, as a rule, no participation claim arises with respect to assets acquired during the marriage.
• Participatory separation of property: Each spouse retains control over their own assets, but upon the termination of the marital union, certain assets are divided between the parties according to rules set out in the law.
• Community of property: Assets other than each spouse's personal property are treated as jointly owned, and this joint property is liquidated once the regime terminates.

Unless the spouses choose one of these three regimes, and have not entered into any agreement before or during the marriage, they remain subject to the statutory regime of participation in acquired property.

Beyond the choice of property regime, the parties are given comparatively broad freedom regarding other provisions they wish to include — though this freedom is not unlimited either. Provided the provisions do not conflict with mandatory rules of law, public morals, public order, or personal rights, are not impossible in subject matter, and do not involve a defect of consent, the parties may add matters such as the family home or arrangements for the children's care.

By contrast, a provision that preemptively extinguishes a party's future right to claim alimony, or that disproportionately restricts a person's fundamental rights and freedoms, is considered invalid. For this reason, the wording of the agreement should be prepared with these mandatory limits in mind.

For a matrimonial property agreement to be valid, it must satisfy the capacity and form requirements set out in Articles 203-204 of the TMK: the parties must have the capacity to discern, the agreement must be made in official form (drawn up or certified by a notary, or declared in writing before a civil registry official), and the chosen regime must be one of the options listed in the law.

An agreement meeting these conditions remains valid throughout the marriage or until the regime terminates. If the agreement is to be changed later, any amendment made during the marriage requires the involvement of a notary public, regardless of the form used for the original agreement.

If the spouses do not enter into any matrimonial property agreement, either before or during the marriage, they automatically become subject to the statutory regime of participation in acquired property under Article 202 of the TMK. How this regime is liquidated upon divorce, what counts as personal property, and how the participation claim is calculated are matters that deserve separate, dedicated treatment.

Clarifying the choice of property regime before or during the marriage can narrow the scope of disputes that might otherwise arise later. For more comprehensive information on this topic, you can review our İzmir divorce lawyer page. Support in family law matters is provided in Karabağlar, as well as Konak, Buca, and Balçova.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy