Division of Property on Divorce in Light of Court of Cassation Decisions

This article is an English translation of the Turkish original published by the office.

Divorce and related matters are among the most important topics in family law. A common misconception is that property is divided between the spouses by the divorce judgment itself. In fact, no division of property takes place in the divorce case: a separate action for the liquidation of the matrimonial property regime must be filed. That action proceeds separately, but it cannot be decided before the divorce judgment becomes final. The divorce is decided first, the judgment becomes final, and then the property case is decided; in the meantime the divorce case is treated as a preliminary issue.

How is property divided in a matrimonial property case?

As a rule, assets acquired during the marriage are divided equally between the spouses, because the Civil Code adopts participation in acquired property as the statutory regime, which applies unless the spouses specifically agree otherwise. Spouses who do not accept equal sharing must record their choice of one of the other regimes in the law by a contract made before a notary. The spouses’ assets from before the marriage and their personal assets are excluded from the division and remain with the spouse who owns them.

What are personal assets?

Under Article 220 of the Turkish Civil Code, personal assets are:

• items used exclusively for the personal use of one spouse;
• assets belonging to a spouse at the beginning of the regime, or acquired later by inheritance or otherwise free of charge;
• claims for non-pecuniary damages;
• assets replacing personal assets.

What are acquired assets?

Under Article 219, acquired assets are assets each spouse obtains for consideration while the regime continues, in particular:

• earnings from work;
• payments by social security or social assistance institutions, or by funds set up to assist staff;
• compensation paid for loss of the capacity to work;
• income from personal assets;
• assets replacing acquired assets.

Division of property in an uncontested divorce

The rules above concern the property case following a contested divorce, where the parties cannot agree on the consequences of divorce and ask the judge to decide. In an uncontested divorce, the spouses agree on everything, so problems do not arise. They may divide their property as they wish in the divorce protocol — equally, in another ratio, or with one spouse waiving all property claims. This is at the spouses’ discretion.

Limitation period

The matrimonial property action must be filed within 10 years of the divorce judgment becoming final. After 10 years, it is no longer possible to claim a division of property.

Competent court

The family courts established by Law No. 4787 have subject-matter jurisdiction. Territorial jurisdiction depends on the situation: if the marriage ended by a divorce judgment or a divorce case is pending, the court competent for the divorce is also competent to liquidate the property regime. If the regime ended by the death of a spouse, the court of the deceased’s last domicile is competent. In all other cases, the family court of the defendant spouse’s domicile is competent.

Matrimonial property cases require care in many respects; advice from an experienced lawyer helps avoid any loss of rights, and Türker Law Office provides legal support and advice on all family law matters.

Selected Court of Cassation decisions

Witness evidence alone is not enough to prove that an asset is personal

A tractor was an acquired asset by reference to its acquisition date, and the burden of proving otherwise lay on the defendant. Apart from abstract witness statements, there was no concrete and convincing evidence supporting the defence that it was a personal asset. Accepting the tractor as the defendant’s personal asset on the basis of abstract witness statements alone was wrong; the claimant’s participation claim regarding the tractor should have been calculated. (Court of Cassation, 2nd Civil Chamber, 2023/7543 E., 2024/2917 K., 25 April 2024)

In an uncontested divorce, the agreement on property must be stated at the hearing and reflected in the judgment

The parties divorced by agreement, and the protocol stated that they had “no claims regarding property”. However, the claimant made no statement at the hearing that she had no claims or waived them, the judgment contained no provision on liquidation of the property regime, and the protocol was not approved. Since liquidation of the regime is not an accessory of the divorce case, it could not be accepted that the parties had liquidated their regime; the court should have collected evidence and decided on the merits. (Court of Cassation, 2nd Civil Chamber, 2022/10451 E., 2024/1072 K., 21 February 2024)

“Nothing else will be claimed” does not bind as to assets not listed

The wife claimed that during the marriage the husband had concealed assets from her, registered some in relatives’ names through sham transactions and set up a company in relatives’ names whose existence and income were also hidden. The uncontested divorce protocol had liquidated the regime only in respect of certain listed properties and a vehicle. The Court held that the wife’s statements in the protocol could not be taken to cover assets allegedly concealed from her; the court should first ask her to specify those assets, collect the evidence and assess the sham-transaction claim before deciding. (Court of Cassation, 2nd Civil Chamber, 2022/8549 E., 2024/697 K., 8 February 2024)

An asset not proven to belong to a third party is treated as acquired property

The spouses married in 2013; the divorce case was filed in 2017 and became final in 2018, so the property regime ended on the filing date. A car was bought during the marriage with a down payment and a loan and registered in the husband’s name. He argued that the car really belonged to a friend who could not obtain a loan, and that the friend paid the down payment and instalments. The first-instance court accepted this, but the Assembly of Civil Chambers held that, under Article 222(3) of the Civil Code, all of a spouse’s assets are presumed to be acquired assets until proven otherwise. Having proved that the car was bought during the marriage, the wife discharged her burden through a statutory presumption, and the burden shifted to the husband. His evidence — hearsay testimony, a witness statement unsupported by payment records, a finance company that could not say who paid, and messages that contained no admission — did not rebut the presumption. The wife’s participation claim was limited to the down payment and the instalments paid during the marriage, and payment records from after the filing date could not be used to dismiss the case. (Court of Cassation, Assembly of Civil Chambers, 2023/467 E., 2024/199 K., 24 April 2024)

Türker Law Office provides legal representation and advice on liquidation of the matrimonial property regime after divorce, the distinction between acquired and personal assets, participation, value increase and contribution claims, the effect of divorce protocols on property, and other disputes arising from the division of property.