1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?

 

When property is acquired during a marriage, the spouses can either choose the common national law or the law of the state where the spouses jointly reside (except for immovable property*). If they do not have a choice, the common national law shall prevail. If they do not have the same nationality, then the latter shall be determined by the judge (ipso iure). If the state of the matrimonial residence cannot be determined clearly, then the judge applies the Turkish Law.

 

*For immovable property, the law of the state where the property is located shall be applied compulsorily (public order-Private International Law Article 15).

 

1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?

 

The spouses may choose either their common national law or the law of the state where the spouses jointly reside. Retroactivity is not possible in civil matters.

Yes. There are four different types of matrimonial property regimes according to the Turkish Civil Code. Making an agreement that would contradict the provisions of the law is not possible. Only notaries can edit or approve the agreement.

These regimes are:

1. The regime of equal sharing of the acquired assets,

2. The regime of separation of the assets,

3. The regime of separation of the shared assets,

4. The regime of partnership in the assets.

2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?

 

If there is no agreement between the spouses, the general rule will apply : “the regime of equal sharing of the acquired assets”. In this regime, the assets acquired before the marriage remain separate and each spouse retains what he/she brought into the marriage. Additionally, they become joint owners of the assets that they acquire during the marriage (half and half - except inherited/gifted after marriage). However, if there is an agreement, the rules of their chosen regime will apply.

 

2.2. Are there legal presumptions concerning the attribution of property?

 

Yes.

1. If there is no agreement between spouses, the regime of equal sharing of the acquired assets will apply concerning the attribution of the property.

2. The spouses have the right to address the judge to change their regime at anytime during their marriage, under some circumstances stipulated by the law.

3. If one of the spouses goes bankrupt, the regime changes to the regime of separation of the assets (ipso iure Civil Code Art. 209).

4. Court decision: If one of the spouses loses his mental abilities, the other can bring a lawsuit to separate acquired assets.

5. If there is no evidence proving the contrary, movable assets are deemed to be part of the matrimonial property.

 

2.3. Should the spouses establish an inventory of assets? If so, when and how?

 

One of the spouses can demand for an inventory of assets, but it is not mandatory. If he/she wants to, he/she should make the request within a year from the acquisition of the asset/s. The inventory must be led by a notary in order to be recognized as an official document. It will be deemed to be valid unless proven otherwise.

 

2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and can it be pleaded against a third party?

 

It depends on the type of matrimonial property regime that was chosen by the spouses. If the regimes of equal sharing of the acquired assets, or of separation of the assets, or of separation of the shared assets were chosen, then the spouses may dispose of their own property freely during the marriage. With the regime of partnership on the assets regime, the spouses have to decide jointly. In any case, the matrimonial real estate is an exception; the spouses cannot dispose of a matrimonial real estate ownership without the other’s consent. Otherwise, the transaction is invalid and the property returns to its original owner. However, the owner may apply to a general court and request the right to dispose of a certain property without the other spouse’s consent. In case of a dispute over a rented real estate, the landlord has to bring any kind of lawsuit against both spouses.

 

2.5. Are any legal transactions made by one spouse also binding on the other?

Each spouse is responsible for his/her own debts, so any legal transactions made by one spouse are not binding on the other, unless both spouses owe together jointly.

On the contrary, if the regime of partnership on the assets is chosen, each spouse can be bound by the partnership debts, within the usual boundaries. If they exceed the usual boundaries, only the representative spouse will be sole responsible.

 

2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?

 

Each spouse is responsible for his/her debts with his/her own property. The property consists of their shares in the joint property. If the spouses choose the regime of partnership on the assets and one creditor suits a spouse, this spouse may ask the judge to divide the assets if needed.

 

3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?

There are four different types of matrimonial property regimes according to the Turkish Civil Code. These regimes are:

1. The regime of equal sharing of the acquired assets,

2. The regime of separation of the assets,

3. The regime of separation of the shared assets,

4. The regime of partnership in the assets.

Making an agreement that would contradict the provisions of the law is not possible.

 

3.2. What are the formal requirements and who should I contact?

Only notaries can edit or approve the agreement.

 

3.3. When may the contract be concluded and when does it come into effect?

The contract may be concluded and come into effect right after the approval of the notary.

3.4. May an existing contract be modified by the spouses? If so, subject to what conditions?

 

Yes. An existing contract may be modified at any time but both spouses have to give their. It will then come into effect as of the date when the notary draws up the new contract.

There is no register for marriage contracts in Turkey.

Divorced spouses would not be able to be the legitimate heir of each other. In addition, if he/she is an appointed heir according in the other’s will, then he/she will also lose this right unless the contrary is provided in the will.

 

 

5.1. How is the property (rights in rem) divided?

First, the family court judge makes a decision about the divorce. The property cannot be divided without the divorce decision. Upon the decision of divorce, the property can be divided by the same lawsuit or following another lawsuit that shall be filed within one year after the divorce.

Concerning the division of the property, the judge should take into account the agreement between the spouses if there is one. If the spouses are married without any agreement, the general rule will take place, which is the regime of equal sharing of the acquired assets. Each spouse takes his/her separate property and the acquired assets are divided equally between them.

5.2. Who is liable for existing debts after the divorce/separation?

 

Each spouse is responsible for his/her debts with his/her own property. The property consists of their shares in the joint property. If the spouses choose the regime of partnership on the assets and one creditor suits a spouse, this spouse may ask the judge to divide the assets if needed.

 

5.3. Does one spouse have a claim to an equalisation payment (balancing payment)?

 

If one of the spouses made some increases in value of the joint property or made a payment from his/her own property, he/she may require a repayment or a compensation to balance his/her loss.

 

5.3.1. In case of a property regime of community (or partnership) of acquests:

- Does the claim have to be satisfied by means of a payment or in kind?

Payment can be cash or non-cash.

- How is the claim assessed?

When the property regime comes to an end, matrimonial property is assessed on the basis of its value on the date of dissolution.

- What is the amount of the equalisation payment (balancing payment)?

Debts related to the matrimonial property will be deducted from the total value of the matrimonial property and the remaining amount will be divided in two.

- When is the claim prescribed?

When the property regime comes to an end.

5.3.2. In other cases (not community or partnership of acquests). Which ones?

It the case of the regime of separation of the shared assets, the rules are the same. When the regime of separation of the assets comes to an end, every spouse takes his/her own assets.

The matrimonial property regime comes to an end upon the death of one of the spouses and the surviving spouse will take his/her half share of the joint property. Additionally, the surviving spouse will take his/her inheritance share according to the civil law:

- If the spouse of the deceased is included with children in the sharing of the inheritance, then he/she has a statutory share of one-fourth,

- If the surviving spouse is sharing the inheritance with the deceased’s parents and their offspring, he/she has a statutory share of one half,

- If the surviving spouse is sharing the inheritance with the deceased grandfather, grandmother and their offspring, he/she has a statutory share of three fourths,

- If none of the deceased’s next of kin survives, the entire estate goes to the surviving spouse.

No, it does not.

Cohabitation is neither recognised nor registered in Turkey. Only marriage is recognised and registered between couples who have different genders. The Civil Code provides specific rules to regulate the marriage. If cohabitees want to protect themselves against others (legal heirs and/or creditors) they may take some measures. For example, they may acquire properties jointly or they may appoint each other as an heir.

The Family Court is the only competent authority.