The Claim for Value Increase Share in Turkish Law

CLAIM FOR VALUE INCREASE SHARE

The claim for value increase share is a right related to the liquidation of the regime of participation in acquired property. If one spouse contributes to the acquisition, improvement, or preservation of an asset belonging to the other spouse without receiving any or adequate compensation, this contribution is considered during the property division and the value increase in that asset is calculated accordingly. This claim is calculated based on the value of the asset at the time of liquidation, and in case of a decrease in value, the initial contribution value is considered. Contributions can be financial or in the form of labor. If the asset is disposed of before liquidation, the judge has the discretion to determine the other spouse’s claim fairly. It’s essential to note that contributions considered for value increase share should exceed ordinary contributions, which can be collected through participation claims.

WHAT ARE THE ELEMENTS OF THE VALUE INCREASE SHARE CLAIM?

Official Marriage Between Spouses

The claim for value increase share is a right involved in the liquidation of the property regime, requiring an official marriage contract for such claims.

If the conditions are met, contributions made during the engagement period can be claimed as compensation for the termination of the engagement, return of gifts, and contributions made to the other person’s property for marriage purposes, under compensation for termination of engagement. If there is no other agreement between them, unjust enrichment provisions can be applied.

Termination of Property Regime

The regime of participation in acquired property between spouses must have ended to reach the liquidation stage. The sale of an asset during the property regime does not change this.

Contribution to the Asset

A claim for value increase share is possible in three cases:

1. Contribution to the acquisition of the asset

2. Contribution to the improvement of the asset

3. Contribution to the preservation of the asset

If the payment is consumed for another purpose without integrating into the other spouse’s property or if it is in the nature of debt fulfillment, a claim for value increase share cannot be asserted.

Type of Contribution

The contribution must be made with money or a value measurable by money, or through labor.

Non-Donative Contribution Without Adequate Compensation

For a contribution to be claimed under the value increase share, it must not be made with the intention of a gift. The party asserting otherwise must prove the intent of a gift, which can be done with witness evidence without the need for a document.

It is also required that the contribution be made without or without adequate compensation.

No Waiver of the Claim

Spouses can waive their right to a value increase share through a written agreement, and they can also change the share ratio. For a claim to be made, such a waiver must not exist.

Time of Claim

A claim for value increase share can be made after the property regime ends and liquidation begins. In the event of a spouse’s death, the marriage ends and the property regime ends from the date of death. If the spouses adopt another property regime, the regime of participation in acquired property ends on the date of the property regime contract. In cases of annulment of marriage, divorce, or transition to separation of property by court decision, the property regime ends from the date of the lawsuit. The claim time starts with the termination.

Calculation of Value Increase Share

If one spouse contributes to the acquisition, improvement, or preservation of an asset belonging to the other without any or adequate compensation, they have the right to claim a value increase share proportional to their contribution during liquidation. This claim is calculated based on the value of the asset at the time of liquidation. In case of a decrease in value at liquidation, the initial contribution value is considered. If the asset is disposed of earlier, the judge must determine the claim to be paid to the other spouse fairly.

If contributions are made multiple times or at different times, each contribution must be calculated separately. Similarly, if one spouse contributes to different assets of the other spouse, each asset must be calculated separately.

PAYMENT OF VALUE INCREASE SHARE

Payment in Cash or in Kind

The value increase share can be paid in kind or in cash. In kind payments are based on the market value of the assets; the economic integrity of units designated for professional practice or businesses is considered.

Unless otherwise agreed, interest is applied to the participation claim and value increase share starting from the end of the liquidation; security may also be required from the debtor if the circumstances and conditions necessitate it. The contribution claim is a legal claim, and the applicable interest rate is the statutory interest rate.

If the immediate payment of the participation claim and value increase share would cause severe difficulties for the debtor spouse, they have the right to request a reasonable deferment of payments. In this case, a delay or installment request may lead to default by the creditor spouse, enabling the collection of default interest.

COMPETENT COURT FOR VALUE INCREASE SHARE CLAIM

The family courts are competent for claims arising from family law, including the claim for value increase share. In places without family courts, the civil courts of general jurisdiction designated as family courts are competent.

In lawsuits for the liquidation of the property regime between spouses or heirs, if the regime ends with death, the court of the deceased’s last residence is competent. In cases of divorce, annulment of marriage, or transition to separation of property by court decision, the court competent for these lawsuits is also competent. In other cases, the court of the defendant spouse’s residence is competent. This is not an exclusive jurisdiction, and the court of the defendant’s residence at the time of the lawsuit can also be approached.

STATUTE OF LIMITATIONS FOR VALUE INCREASE SHARE CLAIM

There is no specific regulation regarding the statute of limitations for value increase share claims. Therefore, according to the general provisions of the Turkish Code of Obligations, all claims are subject to a ten-year statute of limitations unless otherwise stated. This means the statute of limitations for value increase share claims is considered ten years.

COMPARISON OF CONTRIBUTION SHARE AND VALUE INCREASE SHARE CLAIMS

Under the Turkish Civil Code No. 4721, a claim for value increase share can be made for contributions within the regime of participation in acquired property, while for contributions made during the old Civil Code period, a claim for contribution share can be made based on case law. The differences in asserting these claims are as follows:

– Contribution share claim is a right developed through case law, while value increase share claim is a legally regulated right.

– Contribution share claim considers events before 01.01.2002, while value increase share claim considers contributions made after 01.01.2002.

– Contribution share claim is calculated based on the asset’s value at the date of the lawsuit, while value increase share claim is calculated based on the liquidation date.

– In contribution share claims, interest can be claimed from the lawsuit date, while in value increase share claims, interest is considered from the decision date.

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