How Are Assets Divided in a Divorce in Turkey?

Asset division during divorce in Turkey follows specific legal frameworks that determine how marital property is distributed between separating spouses. The Turkish Civil Code establishes clear guidelines for this process, though the actual division can vary based on several factors including when the marriage took place, what property regime applies, and the specific circumstances of the couple.

Matrimonial Property Regimes in Turkey

The Turkish Civil Code recognizes different matrimonial property regimes that govern how assets are divided upon divorce. Understanding which regime applies to your marriage is crucial for predicting how property will be distributed.

Participation in Acquired Property Regime

Since January 1, 2002, the default matrimonial property regime in Turkey has been the “Participation in Acquired Property” regime (Edinilmiş Mallara Katılma Rejimi). This applies automatically to all marriages unless the couple has explicitly chosen a different regime through a formal agreement.

Under this regime, assets are categorized as either acquired property or personal property. Acquired property includes all assets obtained by either spouse during the marriage through their work, income, or other compensated activities. When divorce occurs, each spouse has a legal claim to half of the other spouse’s acquired property.

This system represents a significant shift from the previous default regime and generally provides more equitable outcomes, particularly for spouses who may have contributed to the marriage in non-financial ways, such as through homemaking or child-rearing.

Separation of Property Regime

Before January 2002, the default matrimonial property regime in Turkey was the “Separation of Property” regime (Mal Ayrılığı Rejimi). Under this system, each spouse maintained ownership of assets registered in their name, regardless of when or how they were acquired.

For marriages that took place before 2002, this regime applies to assets acquired before January 1, 2002, while the participation in acquired property regime applies to assets acquired after this date. This creates a hybrid situation for long-term marriages that spanned this transition period.

Couples can also voluntarily choose the separation of property regime through a formal agreement. This choice might be advantageous for entrepreneurs, those with significant pre-marital assets, or in situations where one spouse has substantial debt concerns.

Community Property Regime

Although less common, couples in Turkey can opt for a “Community Property” regime (Mal Ortaklığı Rejimi) through a notarized agreement. Under this system, most property acquired before and during the marriage becomes jointly owned by both spouses, with few exceptions for personal items.

Upon divorce, these communal assets are typically divided equally between the spouses. This regime creates the most comprehensive sharing of assets but is rarely chosen in practice due to its extensive commingling of property.

Types of Property in Divorce Proceedings

When dividing assets in a Turkish divorce, the classification of property is crucial for determining how it will be distributed. The Turkish Civil Code distinguishes between several types of property.

Acquired Property (Edinilmiş Mallar)

Acquired property includes assets obtained by either spouse during the marriage through:

• Employment income and professional earnings
• Social security and pension benefits
• Compensation for inability to work
• Income from personal property
• Assets purchased with acquired funds

These assets are subject to division upon divorce, with each spouse generally entitled to half of the total acquired property. The presumption is that all property is acquired property unless proven otherwise.

Personal Property (Kişisel Mallar)

Personal property remains exclusively with its owner after divorce and includes:

• Assets owned before marriage
• Inheritance and gifts received during marriage
• Compensation for personal suffering (such as moral damages)
• Items exclusively for personal use
• Assets designated as personal property by legal agreement

The burden of proving that an asset qualifies as personal property falls on the spouse making that claim. Without clear documentation, courts typically presume that assets are acquired property subject to division.

Appreciation of Personal Property

An important nuance in Turkish divorce law concerns the appreciation of personal property during marriage. If personal property increases in value during the marriage due to the contribution or effort of either spouse, the appreciation may be considered acquired property and thus subject to division.

For example, if one spouse owned a business before marriage (making it personal property), but the business increased in value during the marriage partly due to the other spouse’s direct or indirect contributions, the value increase could be divided between the spouses.

Asset Division Process

The process of dividing assets in a Turkish divorce follows several steps, regardless of whether the divorce is contested or uncontested.

Inventory of Assets and Liabilities

The first step in asset division is creating a comprehensive inventory of all assets and debts belonging to both spouses. This includes:

• Real estate and property
• Vehicles and other valuable possessions
• Bank accounts and cash
• Investments and securities
• Business interests
• Retirement accounts and pensions
• Outstanding loans and debts

Both parties are legally obligated to provide full disclosure of their financial situations. Concealing assets can result in penalties and unfavorable court decisions.

Valuation of Assets

Once all assets are identified, they must be valued accurately. The valuation date is typically the date when the divorce petition is filed, though courts have some discretion in selecting alternative dates when appropriate.

For complex assets like businesses, real estate, or rare collectibles, professional appraisers may be appointed to determine fair market value. The valuation process can become contentious, especially when assets have fluctuating values or when one spouse believes assets are being deliberately undervalued.

Division of Assets and Debts

After valuation, the court proceeds to divide the assets according to the applicable property regime. Under the participation in acquired property regime, the process involves:

1. Identifying each spouse’s personal property (to be excluded from division)
2. Calculating the total value of each spouse’s acquired property
3. Determining each spouse’s legal share of the other’s acquired property
4. Offsetting these claims against each other to arrive at a final settlement

While equal division is the general principle, courts have discretion to adjust the division based on equitable considerations in certain circumstances, particularly in cases involving fraud, dishonesty, or severe marital misconduct.

Special Considerations in Asset Division

Several special factors can complicate asset division in Turkish divorces, requiring careful legal navigation and sometimes specialized expertise.

Pre-marital and Post-marital Agreements

Couples in Turkey can enter into agreements that modify the default property regime. These agreements must be executed before a notary public to be legally valid and can significantly alter how assets are divided upon divorce.

However, courts may scrutinize these agreements for fairness and validity. Agreements that completely deprive one spouse of economic rights or that were signed under duress may be invalidated. The enforceability of such agreements depends on their compliance with legal requirements and public policy considerations.

Business Interests and Professional Practices

Dividing business interests can be particularly challenging in divorce cases. When a business was established during marriage, it generally falls under acquired property and is subject to division. However, rather than literally splitting the business, courts typically award the business to the operating spouse while compensating the other spouse with other assets or payments.

For businesses established before marriage but which grew during the marriage, only the increased value attributable to marital efforts is typically subject to division. This requires careful forensic accounting to distinguish between pre-marital value and marital appreciation.

Hidden Assets and Fraudulent Transfers

Unfortunately, some divorcing spouses attempt to hide assets or transfer them to third parties to avoid fair division. Turkish law provides remedies for such situations, allowing courts to:

• Add back fraudulently transferred assets to the marital estate
• Consider assets transferred within one year before divorce filing as still part of divisible property
• Impose penalties on spouses who deliberately conceal assets

Courts can employ forensic accountants and issue discovery orders to trace hidden assets. Spouses who can prove fraudulent transfers may receive compensatory adjustments in the division of remaining assets.

International Property Issues

For couples with assets in multiple countries, additional complexities arise. Turkish courts have jurisdiction over property located in Turkey but may face challenges in effectively dividing foreign assets. International couples may need to:

• Engage legal counsel in multiple jurisdictions
• Consider whether foreign divorce judgments will be recognized in countries where assets are located
• Address potential conflicts between Turkish property division laws and those of other countries

The enforceability of Turkish divorce judgments regarding foreign assets depends largely on international agreements and the legal framework of the country where the assets are located.

Common Challenges in Turkish Divorce Asset Division

Several recurring challenges affect asset division during divorce in Turkey, often requiring legal intervention or negotiation to resolve.

Property Acquired with Mixed Funds

Assets purchased partly with personal funds and partly with marital funds create complex division questions. For example, if a home was purchased using both inheritance money (personal property) and salary income (acquired property), determining the appropriate division requires careful tracing of funds.

Courts typically apply a proportional approach, allocating ownership interests based on the ratio of personal and marital contributions. Documenting the source of funds used for major purchases can be crucial in these situations.

Retirement Benefits and Pensions

Retirement benefits accrued during marriage are generally considered acquired property subject to division. However, Turkey’s pension system creates challenges in valuing and dividing these benefits, particularly when they have not yet vested or will be paid out over time.

Courts may use several approaches, including:

• Deferred division, where the non-employee spouse receives their share when benefits are eventually paid
• Present value calculation and immediate offset against other assets
• A combination of immediate and deferred division

The complexity of pension division often requires specialized financial expertise to ensure fair outcomes.

Inheritance and Gifts

While inheritances and gifts received during marriage are typically considered personal property not subject to division, complications arise when:

• Inherited assets have been commingled with marital assets
• Inherited property has been used for family purposes over a long period
• Both spouses have contributed to maintaining or improving inherited property

In such cases, courts must determine whether the inheritance has maintained its separate character or has been transmuted into marital property through commingling or joint use.

Conclusion

Asset division in Turkish divorces follows a structured legal framework based on the applicable matrimonial property regime, with the participation in acquired property regime being the current default system. While the general principle is equal division of acquired property, various factors can complicate this process, including the classification of assets, valuation challenges, and special circumstances such as business interests or international property.

The process requires careful documentation, full financial disclosure, and often specialized legal and financial expertise to navigate successfully. For couples with substantial or complex assets, prenuptial agreements and proper financial planning can help avoid protracted disputes during divorce.

Understanding the nuances of Turkish asset division law is essential for anyone facing divorce in Turkey, whether they are Turkish nationals or international couples subject to Turkish jurisdiction. With proper legal guidance, parties can work toward fair and equitable distributions that recognize both financial contributions and non-monetary contributions to the marriage.

 

About Soylu Law

Soylu Law provides comprehensive legal assistance for divorce proceedings and asset division in Turkey. Our team specializes in international document management and apostille services, offering expert guidance for foreign clients navigating Turkish legal processes. We handle complex international cases with attention to detail, ensuring smooth cross-border legal transactions for clients worldwide.

 

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