Prenuptial Agreements in Turkish Law
PRENUPTIAL AGREEMENTS (MARRIAGE AGREEMENTS)
The prenuptial agreements, in other words, the property regime agreement, is an institution that the spouses can create before marriage, but they can also be created during the marriage union. The institution of marriage brings with it some personal and financial legal relations for the spouses. The prenuptial agreement is a family legal agreement that regulates how the spouses will use their property, how they will benefit from them, and how they will manage and dispose of them.
The legislator envisaged various property regimes and left the choice of one of them to the spouses. Spouses can adopt the property regime they wish in accordance with the freedom of will. If the spouses have not chosen any regime, they are legally subject to the legal property regime. In Turkish law, the legal property regime has been determined as the “participation regime in the acquired property”.
WHAT IS THE LEGAL MARRIAGE REGIME IN TURKEY ?
The legislator has made it possible for spouses to freely determine the property regime with a prenuptial agreement to which they will be subject. In cases where the parties do not explicitly choose one of the regimes stipulated in the law, it is considered that they have chosen the legal property regime. As a rule, the legal property regime is the regime of participation in the acquired property. If the parties have not made a marriage agreement, prenuptial agreement among themselves and have not chosen one of the property regimes, the acquired property regime comes to the fore.
WHAT ARE THE TYPES OF REGIMES?
1. Regime of Participation in Acquired Goods
In Turkey, this regime has been determined by the legislator as the legal property regime. The concept of acquired property includes the property values that each spouse receives during this regime by giving in return. acquired property of spouses;
-Acquisitions in return for his work,
-Payments made by social security or social assistance institutions and organizations, or by funds and similar funds established for the purpose of helping personnel,
-Compensation paid due to loss of working power,
-Income from personal property,
-Values that replace acquired goods.
Apart from these, the assets that are for personal use of the spouses, that belong to them at the beginning of the property regime or that are acquired by inheritance or gratuitously, together with the moral compensation receivables and values that replace personal property. As a rule, the personal property of a spouse is not included in the liquidation of the property regime.
2. Separation of Assets
The property separation regime was accepted as a legal property regime in accordance with previous Turkish law. According to this regime, the property of each spouse belongs to him. As a rule, spouses have sole ownership of the goods within their own assets. In this case, the assets of the spouses are separate. The property acquired either before marriage or during marriage belongs only to the acquiring spouse and does not give the other spouse the right of ownership. The liquidation of the property separation regime is quite simple. Each spouse receives the property that he owns at the time of liquidation. Separation of assets regime is frequently preferred in practice. Spouses can adopt the property separation regime before or during marriage. Thus, each spouse can be under his own protection without sharing the acquired property with the other spouse.
3. Participation in Separated Assets
Participation in separated assets regime is counted among the selected property regime types foreseen for spouses by the legislator. Participation in separated assets regime is partly similar to the legal property regime. In this property regime, spouses have the right to own both the property they acquired in the marriage union and the personal property they had before marriage. Regardless of how and when the said goods are acquired (before/after the marriage), these goods are divided in half between the spouses. When the regime ends, each spouse takes back the property belonging to him in the other spouse. However, if one of the spouses proves that it is of superior benefit, he may request that the property be given to him by paying the other spouse’s share.
4. Partnership in Assets
Partnership in assets regime is one of the property regimes that the spouses can choose. This regime covers the property of the partnership and the personal property of the spouses. With this regime, spouses can form a partnership by excluding certain assets and earnings belonging to them from the partnership. In the goods partnership regime, there are two different types of goods as partnership goods and personal goods. Spouses own the partnership property together. As a rule, all non-personal assets of the spouses are considered partnership property.
5. EXTRAORDINARY PROPERTY REGIME
In some cases, it is possible to switch to the extraordinary property regime at the request of one of the spouses, or there is a transition to the extraordinary property regime at the request of the creditor or spontaneously. Optional regimes listed in the law are, as a rule, ordinary property regimes. The legislator has made it legally possible that in some cases, the legal property regime can turn into a property separation regime spontaneously, by court decision or upon the request of the parties. This is known as the extraordinary property regime. For detailed information, we recommend that you seek legal support.
WHAT ARE THE CONDITIONS OF
1. The parties of marriage agreement must have the power to distinguish.
Fully qualified persons are those who have the power of discernment, are mature and not limited, and as a rule, they can have all kinds of legal relations. Small and restricted persons can make a property regime contract by obtaining the consent of their legal representatives. Persons who are not fully qualified are not qualified to enter into this contract.
2. The parties must agree on the type of regime.
3. The marriage agreement is made in the form of issuance or ratification at the notary.
However, it is also valid for the parties to notify the property regime they have chosen during the marriage application.
4. The marriage agreement in question must be signed.
The signature must be signed by the parties or by their legal representatives for minors and restricted persons.
5. The provisions of the agreement should not be contrary to the mandatory provisions of the law, morality, public order and personal rights.
6. Marriage should not be impossible.
HOW TO MAKE A PRENUPTIAL/MARRIAGE AGREEMENT?
The property regime agreement can be made before or after marriage. In practice, it is seen that the betrothed also conclude this agreement. Before marriage, they can choose one of the property regimes stipulated in the law by means of a written notification to the marriage officer so that this contract can be made. However, as long as their marriage continues, the spouses can conclude the property regime contract at the notary public. As a rule, the property regime contract should be made in the form of a notary arrangement or approval. In this context, the goods regime contract is subject to the official form requirement. Transactions to change or cancel the existing contract later are also subject to the same form requirements. The agreement can be concluded at any notary public.
CANCELLATION OF MARRIAGE AGREEMENT
The agreement continues until it expires. The contract can be terminated for various reasons. First of all, the current regime ends when the parties choose another regime. Apart from this, the contract will also be terminated in the event of the existence of an emergency regime. The death of one of the spouses also terminates the said contract.
It is also legally possible to proceed to the separation of property due to the annulment of the marriage or the divorce decision given by the court. In such cases, the liquidation of the contract may be requested from the competent family court.
-Selection of another property regime at the notary public
-Annulment of marriage
-Transition to the extraordinary property regime, that is, the property separation regime
AUTHORIZED COURT FOR LIQUIDATION
As a rule, the competent court is the Family Court. If the competent court is the court of last residence of the deceased, if the contract has ended with death, the place of residence of one of the spouses if it has ended with divorce or annulment of marriage, or the court of the place where they have lived together for the last six months before the lawsuit, in case of transition to the extraordinary property regime, the court of residence of one of the spouses is authorized.
For more detailed information about prenutial agreements, you can contact us